Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 1 of 21

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

David M. Mattingly

Angela Pease Krahulik

Olga Voinarevich

Ice Miller LLP

Indianapolis, Indiana

John D. Cox

Lynch, Cox Gilman, & Mahan, P.S.C.

Louisville, Kentucky

ATTORNEY FOR APPELLEE

Stephen W. Thompson

Stewart & Stewart Attorneys

Carmel, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Sportsdrome Speedway, Inc.,

Appellant-Defendant,

v.

Jason Clark,

Appellee-Plaintiff.

March 29, 2016

Court of Appeals Case No.

10A01-1505-CT-341

Interlocutory Appeal from the 

Clark Circuit Court

The Honorable 

Andrew Adams, Judge

Trial Court Cause No.

10C01-1307-CT-122

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 2 of 21

[1] In this interlocutory appeal, Sportsdrome Speedway, Inc. (“Sportsdrome”)

appeals the trial court’s denial of its motion for summary judgment in a case 

brought by Jason Clark (“Clark”) for injuries he sustained when a racecar hit 

him as he volunteered1 on the track for one of Sportsdrome’s races, held on 

June 18, 2011. On appeal, we address the following consolidated and restated 

issue: whether the trial court erred in denying Sportsdrome’s motion for

summary judgment on Clark’s claim that Sportsdrome and its employees were 

grossly negligent and acted in a willful and wanton manner with regard to 

Clark’s safety.

[2] We reverse and remand.

 

1 The parties disagree as to whether Clark was acting as an employee or a volunteer at the time of the 

incident. Clark recognized that he was filling in for one of Sportsdrome’s employees, yet claims that he was 

acting as a volunteer on June 18, 2011. Sportsdrome, however, maintains that Clark was in fact acting as its 

employee at the time he sustained his injuries. In interrogatories, Clark asked Sportsdrome what documents 

it had completed to support its position that Clark was an employee. In its answer to Interrogatory 20, 

Sportsdrome responded that: (1) it “had reported [Clark’s] injuries to its Worker’s Compensation carrier who 

paid out the sum of $30,999.00 for medical expenses”; (2) “[Clark] was told that he would be paid for that 

evening’s work on the date the accident happened”; and (3) “[Clark’s] duties were specifically explained to 

him by [Mike] Gibson and [Clark] agreed to the employment.” Appellant’s App. at 176. Sportsdrome 

maintains that if Clark was acting as Sportsdrome’s employee, Clark’s only remedy against Sportsdrome is 

under the Worker’s Compensation Act (“Act”). Id. (citing Ind. Code § 22-3-2-6) (rights and remedies granted 

to employee under Act on account of personal injury, exclude employee’s other rights and remedies against 

employer). This issue was not briefed by the parties, and its resolution has no bearing on the instant dispute. 

Accordingly, while we treat Clark as a volunteer for purposes of this memorandum decision, we do not 

decide or weigh in on any future determination of whether Clark acted as an employee or a volunteer on the 

night in question. 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 3 of 21

Facts and Procedural History2

[3] Between June 2009 through June 18, 2011, Clark volunteered at least sixty 

times at Sportsdrome’s racetrack. Sportsdrome provided Clark with free 

admission when he helped out during races. Clark was familiar with 

Sportsdrome’s racing events and the layout of the track, which was surrounded 

by a crash barrier and catch fence and could be used either as an oval track to 

run races clockwise or counter-clockwise, or in a figure-eight configuration. 

Some of Clark’s duties included helping Sportsdrome employees to monitor 

races, break up fights, keep spectators clear from the pit road entrance/exit gate 

(“pit gate”), and clean up accidents that occurred during races. This work 

required Clark to enter dangerous areas of the track that were off-limits to the 

general public. Therefore, at the start of each evening that Clark worked, 

Sportsdrome required him to sign a “Release and Waiver of Liability and 

Indemnity Agreement” (“the Release”). It was only after Clark executed the 

Release that Sportsdrome allowed him to work in restricted areas of the 

racetrack. 

 

2 We heard oral argument on this case on January 21, 2016, in Indianapolis. We commend counsel on the 

quality of their written and oral advocacy.
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 4 of 21

[4] The Release was created to indemnify Sportsdrome and waive any liability it 

might incur due to injuries or damages related to Sportsdrome’s own negligence 

or gross negligence.

3 The Release provided:

IN CONSIDERATION of being permitted to enter for any purpose 

any RESTRICTED AREA (herein defined as including but not limited 

to the racing surface, pit areas, infield, burn out area, approach area, 

shut down area, and all walkways, concessions and other areas 

appurtenant to any area where any activity related to the event shall 

take place), or being permitted to compete, officiate, observe, work for, 

or for any purpose participate in any way in the event, EACH OF 

THE UNDERSIGNED, for himself . . ., acknowledges, agrees and 

represents that he has, or will immediately upon entering any of such 

restricted areas, and will continuously thereafter, inspect such 

restricted areas and all portions thereof which he enters and with

which he comes in contact, and he does further warrant that his entry 

upon such restricted area or areas and his participation, if any, in the 

event constitutes an acknowledgement that he has inspected such 

restricted area and that he finds and accepts the same as being safe and 

reasonably suited for the purposes of his use, and he further agrees and 

warrants that if, at any time, he is in or about restricted areas and he 

feels anything to be unsafe, he will immediately advise the officials of 

such and will leave the restricted areas:

1. HEREBY RELEASES, WAIVES, DISCHARGES AND

COVENANTS NOT TO SUE THE . . . TRACK OPERATOR, 

 

3

Sportsdrome contends that gross negligence does not exist under Indiana law, i.e., Indiana courts do not 

recognize gross negligence as being subject to any separate standard of care from that of negligence. See 

Wohlwend v. Edwards, 796 N.E.2d 781, 785, n.2 (Ind. Ct. App. 2003) (“Use of the term ‘gross negligence’ is 

inappropriate in Indiana because [Indiana’s] common law does not recognize degrees of negligence.”) 

(internal citations omitted). Sportsdrome maintains that mere negligence, simple negligence, significant 

negligence, or gross negligence are all simply negligence and any person can voluntarily agree to release 

another as to his or her negligent conduct. Our Supreme Court has noted, however, that negligence and 

gross negligence may be different in the context of what constitutes a breach and has defined gross negligence

as: “‘A conscious, voluntary act or omission in reckless disregard of . . . the consequences to another party.’” 

N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003) (quoting Black’s Law Dictionary 1057 (7th ed. 

1999)). Here, we make no determination whether gross negligence exists in Indiana; instead, since both 

parties focus on the question of whether Sportsdrome acted in a willful and wanton manner, we do the same.
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 5 of 21

TRACK OWNER, . . . OWNERS AND LESSEES OF PREMISES 

USED TO CONDUCT THE EVENT(S), . . . AND THE

DIRECTORS, OFFICERS, AGENTS AND EMPLOYERS, OF 

EACH OF THEM, ALL FOR THE PURPOSES HEREIN 

REFERRED TO AS THE “RELEASEES”, FROM ALL LIABILITY 

to the undersigned . . . for any and all loss or damage, and any claim 

or demands therefore on account of injury to the person or property or 

resulting in death of the undersigned, whether caused by the

negligence or gross negligence of the “RELEASEES” or otherwise 

while the undersigned is in or upon the restricted area, and/or 

competing, officiating in, observing, working for, or for any purposes 

participating in the EVENT(S).

2. HEREBY AGREES TO INDEMNIFY AND SAVE AND HOLD 

HARMLESS THE “RELEASEES” and their insurance carriers and 

each of them from any loss, liability, damage, or cost they may incur 

due to the presence of the undersigned in or upon the restricted area or 

in any way . . . observing, or working for, or for any purpose 

participating at any time in the EVENT(S) and whether caused by the 

negligence or gross negligence of the “RELEASEES” or otherwise.

3. HEREBY ASSUMES FULL RESPONSIBILITY FOR AND RISK 

OF BODILY INJURY, DEATH OR PROPERTY DAMAGE DUE 

TO THE NEGLIGENCE OR GROSS NEGLIGENCE OF 

"RELEASEES" OR OTHERWISE while in or upon the restricted 

areas and/or while. . . observing, or working for, or for any purpose 

participating in the EVENT(S). . . . EACH OF THE 

UNDERSIGNED expressly acknowledges and agrees that the 

activities of the event are very dangerous and involve the risk of 

serious injury and/or death and/or property damage. EACH OF THE 

UNDERSIGNED further expressly agrees that the foregoing release, 

waiver, and indemnity agreement is intended to be as broad and 

inclusive as is permitted by the law of the Province or State in which 

the event is conducted and that if any portion thereof is held invalid, it 

is agreed that the balance shall, notwithstanding, continue in full legal 

force and effect.

THE UNDERSIGNED HAS READ AND VOLUNTARILY SIGNS 

THE RELEASE AND WAIVER OF LIABILITY AND 

INDEMNITY AGREEMENT . . . .

Appellant’s App. at 156. 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 6 of 21

[5] Prior to June 18, 2011, Clark was usually stationed with Leondal Vincent 

(“Vincent”), a friend at the track who mostly worked in the pit at Turn 1. Clark 

acted as an extra set of hands under Vincent’s specific direction and primarily 

helped clean the track after wrecks. The bulk of the remaining responsibilities 

fell to Vincent. On a few occasions, Clark was positioned at the Turn 4 pit gate, 

once with a track employee and a few other times with Vincent. Clark’s 

experiences working in Turn 4 were substantially similar to his experiences 

working in Turn 1; Clark was supervised by an employee who would instruct 

him when things needed to be done, but most of the time, Clark could just sit, 

watch the race, and chat with others in the pit area. 

[6] On the evening of June 18, 2011, Clark was running late and arrived at the 

track just as the races for the evening were about to begin. He signed the 

Release and was assigned to work at the Turn 4 pit gate as a stand-in for an 

employee who had not shown up for work. Clark retrieved a radio headset4

and proceeded to Turn 4. Prior to that evening, Clark had never been stationed 

alone or unsupervised at Turn 4, but that night Clark was working alone at the 

Turn 4 pit gate. On the night of the accident, the races at the track were being 

filmed and monitored by Sportsdrome employee Greg Gibson from the position 

of an elevated scissor lift positioned in the main stretch of the racetrack. 

 

4 Clark explained that the headset was used to listen to track officials, who would inform workers if a car 

needed to come off the track because of a safety issue or if there was something happening on pit road that 

the workers or volunteers needed to know about. Appellant’s App. at 145. 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 7 of 21

[7] Although the track was almost entirely surrounded by a crash barrier, Clark’s 

assigned location at the Turn 4 pit gate had an opening through which cars 

entered and exited the racing surface. A number of races concluded that 

evening without incident; however, while Clark was still at the Turn 4 pit gate,

an accident occurred on the racetrack that “caus[ed] a car to be propelled onto 

the crash barrier.” Id. at 61. “As that car continued down the crash barrier, it 

reached the area near which [Clark] was stationed, crossed the gap in the 

barrier, struck the barrier where it begins again on the other side of the opening, 

pivoted outward and landed on [Clark].” Id. at 61, 67. Clark sustained 

physical injuries, including a broken pelvis and tailbone, broken ribs, and cuts 

on his leg, one of which required stitches. Id. at 110-11.

[8] Clark filed suit against Sportsdrome on May 31, 2013. In his complaint, Clark 

alleged that Sportsdrome was grossly negligent and acted in a willful and 

wanton manner because it knew of the risks to Clark, yet did not provide 

adequate assistance in the form of workers and volunteers, did not adequately 

train Clark, and stationed him alone and unsupervised in a dangerous area with 

which Clark was unfamiliar. Clark also alleged that Sportsdrome was grossly 

negligent and acted in a willful and wanton manner because it knew that the 

design and layout of its track was unreasonably dangerous, yet failed to take 

action to avoid the risk. Id. at 68-69. 

[9] About a year and a half later, Sportsdrome filed a motion for summary 

judgment and a brief in support thereof, arguing that it was entitled to summary 

judgment on the negligence claim because Clark signed the Release 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 8 of 21

acknowledging that he was knowingly and willingly assuming risk of injury 

while working at the track. Id. at 16, 18-20. Sportsdrome also argued that 

Clark’s evidence, at best, supported a claim of negligence regarding training and 

track design—not willful and wanton misconduct—because there was no 

“proof of any actual knowledge by Sportsdrome or evidence that it consciously 

disregarded the natural consequences of its actions.” Id. at 16-17. Sportsdrome 

designated portions of Clark’s deposition in support of its position. 

[10] In his response in opposition to Sportsdrome’s motion for summary judgment,

Clark conceded “that absent the allegation of willful and wanton conduct on 

behalf of [Sportsdrome], the [R]elease executed in this matter would dispose of 

[Clark]’s negligence claim.”5 Id. at 54. Clark, however, maintained that 

Sportsdrome had committed willful and wanton misconduct by failing to act in 

the face of actual knowledge of the natural and probable consequences of injury 

to Clark and its opportunity to avoid said risk. Id. at 54-55. In its answer to 

interrogatories, Sportsdrome stated that it had told Clark to stand “to the side of 

the exit gate from which cars were coming,” a location Sportsdrome claimed 

would have allowed Clark to avoid injury. Id. at 56; 174-75. Clark disagreed, 

arguing that he had been “instructed to stand on the opposite side of where the 

 

5 Although the signature area of the Release contained the words, “I HAVE READ THIS RELEASE,”

printed in red ink, Clark denied he had read the Release. Appellant’s App. at 140. Clark, however, 

acknowledged that he was familiar with the Release and knew that it “[p]rotect[ed] the track’s investments.” 

Appellant’s App. at 141. In other words, Clark knew that he was “releasing the track from liability if anything 

happened.” Id. He also knew that his ability to enter the restricted areas at the track was contingent on 

signing the Release. Id. 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 9 of 21

cars were coming from.” Id. at 55; 143. Further, Clark maintained that,

because he was alone and unsupervised in an area that Sportsdrome knew was 

clearly dangerous, Sportsdrome should have explained Clark’s duties to him. 

Id. at 55. Accordingly, Clark asserts that his positioning near the track relative 

to the traffic flow and his lack of experience created a genuine issue of material 

fact as to whether Sportsdrome acted in a willful and wanton manner when, 

knowing of the probability that Clark would be injured, it did not instruct him 

to move.6

[11] Sportsdrome filed its reply in support of its motion for summary judgment, 

reasserting that summary judgment was proper on Clark’s claim of negligence 

and on his claim of willful and wanton misconduct. Id. at 247-50. Sportsdrome 

noted that Clark had already conceded any claim of negligence against 

Sportsdrome and argued that his failure to meet his burden of providing the trial 

court with a factual or legal basis to support his willful and wanton misconduct 

allegations warranted the entry of summary judgment in Sportsdrome’s favor as 

to both claims. Id.

[12] During the hearing on the motion for summary judgment, Sportsdrome argued

that summary judgment in its favor was appropriate on the negligence claim 

because Clark had signed a Release on the day of, and prior to, the accident. 

 

6 During the hearing on summary judgment, Clark made no argument regarding willful and wanton conduct 

as to the track design. Further, during oral argument, Clark’s counsel, responding to Judge Brown’s inquiry, 

stated that it had designated no evidence regarding the design of the track. It appears that Clark has dropped 

this claim. 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 10 of 21

Tr. at 6. Sportsdrome maintained that Clark understood: (1) the restricted 

areas into which he was placed provided less protection, and therefore, were 

more dangerous; (2) the significance of the Release, having signed one on sixty 

prior occasions in exchange for free admission to the track; and (3) that the 

Release barred Clark from bringing any claims of negligence against 

Sportsdrome in connection with the June 18, 2011 accident. Id. Sportsdrome 

characterized Clark’s claim of willful and wanton misconduct as merely an 

attempt to avoid the constraints of the Release. Id. at 6-7. In response, Clark 

conceded, “If [the claim] was based solely on plain old negligence, we believe 

the Indiana Law bars recovery because of the [R]elease,” but asserted that, in 

the present case, Sportsdrome’s conduct was willful and wanton and the 

Release did not protect it. Id. at 19. Specifically, Clark argued that on June 18 

he was standing in for an absent racetrack employee at the Turn 4 pit gate—a 

place “where cars can come onto the track and exit the track to go to the pits”—

and that Sportsdrome’s instructions to Clark and failure to supervise him placed 

him in harm’s way. Clark maintained that Sportsdrome knew that injury to 

Clark was probable, and therefore, its conduct was willful and wanton. Id. at 

11-13. 

[13] The trial court denied Sportsdrome’s motion for summary judgment without 

accompanying findings of fact or conclusions of law, “neither of which are 

required nor prohibited in ruling on summary judgment motions.” Smith v. 

Delta Tau Delta, Inc., 9 N.E.3d 154, 157 (Ind. 2014) (citing City of Gary v. Ind. 

Bell Tel. Co., 732 N.E.2d 149, 153 (Ind. 2000)). Its sole finding was, “[T]here is 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 11 of 21

a genuine issue of material fact regarding the ‘wanton and willful’ misconduct 

or actions of [Sportsdrome] and/or its employees.” Appellant’s App. at 8. 

Sportsdrome filed its Motion for Reconsideration or, in the Alternative, to 

Certify for Interlocutory Appeal. The trial court certified the order, and our 

court accepted jurisdiction. Sportsdrome now appeals. 

Discussion and Decision

[14] Challenging the denial of summary judgment, Sportsdrome asserts two 

principal claims: (1) the trial court erred in not granting Sportsdrome’s motion 

for summary judgment on Clark’s negligence claims; and (2) the trial court 

erred in denying Sportsdrome’s motion for summary judgment on Clark’s 

claims of willful and wanton misconduct.

7

 We review summary judgment de 

novo, applying the same standard as the trial court: “Drawing all reasonable 

inferences in favor of . . . the non-moving parties, summary judgment is 

appropriate ‘if the designated evidentiary matter shows that there is no genuine 

issue as to any material fact and that the moving party is entitled to judgment as 

a matter of law.’” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (quoting 

Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)). “A fact is ‘material’ if its 

resolution would affect the outcome of the case, and an issue is ‘genuine’ if a 

trier of fact is required to resolve the parties’ differing accounts of the truth, or if 

 

7 We note that the trial court generally denied Sportsdrome’s motion for summary judgment, stating, 

“[T]here is a genuine issue of material fact regarding the ‘wanton and willful’ misconduct or actions of 

[Sportsdrome] and/or its employees.” Appellant’s App. at 8. Thus, it neither granted nor denied 

Sportsdrome’s motion with regard to Clark’s claims of negligence.
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 12 of 21

the undisputed material facts support conflicting reasonable inferences.” Id. 

(quoting Williams, 914 N.E.2d at 761) (internal citations omitted)). If there is 

any doubt as to what conclusion a jury could reach, then summary judgment is 

improper. VanDam Estate v. Mid-Am. Sound, 25 N.E.3d 165, 168 (Ind. Ct. App. 

2015), trans. denied. 

[15] “Even though Indiana Trial Rule 56 is nearly identical to Federal Rule of Civil 

Procedure 56, we have long recognized that ‘Indiana’s summary judgment 

procedure . . . diverges from federal summary judgment practice.’” Hughley, 15 

N.E.3d at 1003 (quoting Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 

N.E.2d 118, 123 (Ind. 1994)). “In particular, while federal practice permits the 

moving party to show that the party carrying the burden of proof lacks evidence 

on a necessary element, [Indiana] impose[s] a more onerous burden: to 

affirmatively negate an opponent’s claim.” Id. (quotation marks omitted). In 

other words, “In Indiana, the party moving for summary judgment has the 

burden of establishing that no genuine issue of material fact exists.” Dennis v. 

Greyhound Lines, Inc., 831 N.E.2d 171, 173 (Ind. Ct. App. 2005) (citing Jarboe,

644 N.E.2d at 123), trans. denied. Only when the moving party has met this 

burden, does the burden shift to the non-movant to set forth specific facts 

demonstrating a genuine issue for trial. Pfenning v. Lineman, 947 N.E.2d 392, 

396-97 (Ind. 2011). The party appealing from summary judgment has the 

burden of persuading us that the grant or denial of summary judgment was 

erroneous. VanDam Estate, 25 N.E.3d at 168.
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 13 of 21

[16] As a general rule, the law allows competent adults the utmost liberty in entering 

into contracts that, when entered into freely and voluntarily, will be enforced by 

the courts. Zollman v. Geneva Leasing Assocs., Inc., 780 N.E.2d 387, 392 (Ind. Ct. 

App. 2002). “A separate release agreement is a species of contract that 

surrenders a claimant’s right to prosecute a cause of action.” Id. “‘Our 

[S]upreme [C]ourt has stated that upholding releases serves an important public 

policy because it facilitates the orderly settlement of disputes.’” Id. (citation 

omitted). “The purpose of a release is to foreclose further claims.” Id. Here, 

Clark makes no claim that the Release was invalid. In fact, he concedes that 

the Release barred him from bringing a negligence claim against Sportsdrome. 

Appellee’s Br. at 1. To the extent that the trial court made no specific 

determination as to Clark’s negligence claims, it erred in failing to grant

summary judgment in favor of Sportsdrome as to any claim of negligence 

brought by Clark due to the fact he had signed the Release.

[17] Notwithstanding the protection provided by a release, “Indiana courts have 

recognized that the waiver of liability protection cannot provide a party the 

right to intentionally hurt someone, including by misconduct that is “willful 

and wanton.” See U.S. Auto Club, Inc. v. Smith, 717 N.E.2d 919, 924-25 (Ind. Ct. 

App. 1999) (upholding release as to such conduct is against public policy), trans. 

denied. See also State Grp. Indus. (USA) Ltd. v. Murphy & Assocs. Indus. Servs., Inc., 

878 N.E.2d 475, 479 (Ind. Ct. App. 2007) (“Although we have found no 

Indiana decision indicating that a party may not contract against liability for 

intentional tortious acts, this rule has a general consensus among our sister 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 14 of 21

states.”) (citations omitted). That being said, a contractual release cannot be 

avoided by “merely alleging intentional or near intentional conduct.” 

Appellant’s Br. at 12 (citing U.S. Auto Club, 717 N.E.2d at 925).

[18] Sportsdrome maintains that Clark’s willful and wanton conduct claims should 

be resolved as a matter of law because there is no genuine issue of material fact 

regarding Sportsdrome having actual knowledge of a probable injury. Willful 

or wanton misconduct consists of either: “1) an intentional act done with 

reckless disregard of the natural and probable consequence of injury to a known 

person under the circumstances known to the actor at the time; or 2) an 

omission or failure to act when the actor has actual knowledge of the natural and 

probable consequence of injury and his opportunity to avoid the risk.” Ellis v. City 

of Martinsville, 940 N.E.2d 1197, 1204-05 (Ind. Ct. App. 2011) (citing U.S. Auto 

Club, 717 N.E.2d at 924) (emphasis added). “Whether the party has acted or 

failed to act, willful and wanton misconduct has ‘two elements: 1) the 

defendant must have knowledge of an impending danger or consciousness of a 

course of misconduct calculated to result in probable injury; and 2) the actor’s conduct 

must have exhibited an indifference to the consequences of his own conduct.’” 

Miner v. Sw. Sch. Corp., 755 N.E.2d 1110, 1113 (Ind. Ct. App. 2001) (quoting 

Witham v. Norfolk & W. Ry. Co., 561 N.E.2d 484, 486 (Ind. 1990)). Our

Supreme Court has accepted that “‘wanton and willful’ and ‘reckless’ seem to 

imply the same disregard for the safety of others.” Obremski v. Henderson, 497 

N.E.2d 909, 911 (Ind. 1986). Willful or wanton misconduct is “so grossly 

deviant from everyday standards that the licensee or trespasser cannot be 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 15 of 21

expected to anticipate it.” Mohr v. Virginia B. Smith Revocable Trust, 2 N.E.3d 

50, 57 (Ind. Ct. App. 2014) (quoting Harper v. Kampschaefer, 549 N.E.2d 1067, 

1070 (Ind. Ct. App. 1990), trans. denied), trans. denied. “Willfulness cannot exist 

without purpose or design.” Id. 

[19] Clark contends that Sportsdrome’s willful and wanton conduct was its omission 

or failure to act when Sportsdrome had actual knowledge of the natural and 

probable consequence of injury to Clark and an opportunity to avoid the risk. 

In its motion for summary judgment, Sportsdrome claimed that Clark’s willful 

and wanton conduct claims should be resolved as a matter of law. Sportsdrome 

offered that Clark “failed to provide even an iota of evidence” to demonstrate 

that Sportsdrome or its employees engaged in a conscious act that they knew 

would probably result in injury to Clark. Appellant’s Br. at 15. Sportsdrome’s 

statement of insufficient evidence, standing alone, would not meet Indiana’s 

first burden for summary judgment because “[m]erely alleging that the plaintiff 

has failed to produce evidence on each element . . . is insufficient to entitle the 

defendant to summary judgment.” Dennis, 831 N.E.2d at 173 (citing Jarboe, 644 

N.E.2d at 123). In support of its claim, however, Sportsdrome designated 

portions of Clark’s deposition. That designated material revealed that Clark 

had volunteered at the track on sixty prior occasions over a two-year period, 

had seen frequent wrecks, yet had never seen or heard about a “racing car going 

over the crash barrier.” Appellant’s App. at 36-37. Additionally, Clark had seen 

only one car go into the pit and had heard about only one person being 

injured—an official who was stationed at a “flag stand” that was “right on the 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 16 of 21

track pretty much.” Id. at 35. Sportsdrome’s showing of the relative absence of 

wrecked cars being propelled into the pit and the absence of injuries was 

enough to show that Sportsdrome lacked actual knowledge that injury to Clark 

was probable on June 18. The burden, therefore, shifted to Clark to show that a 

genuine issue of material fact existed. 

[20] Clark offers that there is a genuine issue of material fact regarding the exact 

position where he was told to stand. Id. at 55. In its answer to interrogatories, 

Sportsdrome stated that it told Clark to stand “to the side of the exit gate from 

which cars were coming,” a location Sportsdrome claimed would have allowed 

Clark to avoid injury. Id. at 56. In his deposition, Clark maintained that he 

had been “instructed to stand on the opposite side of where the cars were 

coming from.” Id. at 55 (citing Clark’s Dep. at 73-74). Further, Clark 

maintained that because he was alone and unsupervised, in an area that 

Sportsdrome knew was clearly dangerous, Sportsdrome should have explained 

Clark’s duties to him. Id. at 55-56. Accordingly, Clark asserts that his position 

near the track relative to the traffic flow and his lack of experience created a

genuine issue of material fact as to whether Sportsdrome acted in a willful and 

wanton manner because Sportsdrome knew of the probability that Clark would 

be injured by standing on the wrong side of the pit gate, and it did not instruct 

him to move.8 We disagree.

 

8 Clark contends that Sportsdrome’s willful and wanton misconduct could be inferred from Sportsdrome’s 

procurement of liability insurance, as well as its mandatory requirement that participants each sign a Release. 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 17 of 21

[21] Sportsdrome claims that this court’s decision in U.S. Auto Club v. Smith, with 

“substantially similar” issues, is dispositive and mandates that we reverse the 

trial court’s decision and grant summary judgment in favor of Sportsdrome.

Appellant’s Br. at 16 (citing U.S. Auto Club, 717 N.E.2d at 924-25). In that case, 

Smith, a widow, filed a wrongful death action against the defendants (“USAC”) 

“for negligence, alleging that the design of the track and crowd control 

measures in the infield pits were inadequate.” U.S. Auto Club, 717 N.E.2d at 

921. Smith also alleged willful and wanton conduct as well as gross negligence, 

asserting that USAC was liable for her husband’s (“Larry”) injuries “because it 

knew or should have known of the dangerous conditions in the pit area and that 

injuries were likely to result.” Id. Smith asserted that USAC was liable because 

it breached a duty in failing to take even minimal steps to make the pits 

reasonably safe for those individuals who chose to remain in that area during 

the race. Id.

[22] Prior to entering the pit area, Larry had signed a waiver agreeing to release 

USAC from all liability. Id. at 921. USAC raised the waiver as an affirmative 

defense to Smith’s negligence claims. Id. Smith responded that the release was 

not sufficient to bar her claims as a matter of law, and in the alternative, that 

even if the release was valid, USAC’s acts rose to the level of willful and 

 

Id. at 55-56. Assuming without deciding that inferences can be made from these documents, these 

documents provide no insight into what Sportsdrome knew about Clark’s probable injury on June 18. The 

only inference that could be drawn from these documents is that being in a restricted area of the Sportsdrome 

racetrack can be dangerous, a fact about which both parties agree. 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 18 of 21

wanton misconduct. Id. at 922. To substantiate her willful and wanton 

allegations, Smith offered affidavits of various racing experts, who unanimously 

concluded that the safety design of the racetrack was in fact “reprehensible” and 

“grossly inadequate.” Id. at 924. USAC moved for summary judgment on 

both claims, but the trial court denied the motion, stating in part that “genuine 

issues of material fact remained as to whether USAC’s omission of safety 

devices in the infield as well as the purported defective design of the track 

amounted to willful or wanton misconduct.” Id. at 922. 

[23] On appeal, our court reversed the trial court’s decision, finding that the 

negligence claims were barred by the waiver and that “the designated evidence 

failed to demonstrate that USAC engaged in willful or wanton misconduct.” 

Id. at 925. In its decision, this court announced the legal standard for willful 

and wanton claims and noted that to establish that a defendant’s conduct is 

“willful and wanton[,]” a plaintiff must show “an omission or failure to act 

when the actor has actual knowledge of the natural and probable consequence 

of injury and his opportunity to avoid the risk.” Id. at 924 (citing Witham, 561 

N.E.2d at 486). Applying that standard to the facts, the court concluded that 

even the experts’ affidavits were insufficient to prove willful and wanton 

misconduct because nothing in the record suggested that USAC committed an 

act or omission that it knew was improper, and the allegation in the expert’s 

affidavits “fail[ed] to identify any specific factual evidence or foundation to 

support their conclusions about USAC’s actions.” Id. Stated differently, our 

court found, “[T]here is simply no evidence to support an inference that USAC 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 19 of 21

believed the accident was imminent, likely or probable, much less that they 

willingly subjected themselves and their racing colleagues to such risks.” Id. at 

925. Finding no evidence in the record to support Smith’s claim that USAC 

acted in a willful or wanton manner, we reversed the trial court’s denial of 

summary judgment, remanded to the trial court, and ordered that judgment be 

ordered in USAC’s favor. Id.

[24] Here, unlike Smith, Clark did not designate affidavits of testimony procured 

from well-known racing experts to support his willful and wanton claim. 

Instead, he argues that construing the record in the light most favorable to him

it is clear that he was never given training or instruction on the proper way to 

monitor race traffic, he was told to stand on the wrong side of the Turn 4 pit 

gate—one of the most dangerous turns because it is not fully protected by crash 

barriers—and he volunteered alone in Turn 4. Appellee’s Br. at 10. Clark 

maintains that Sportsdrome knew that he was on the wrong side of the pit gate 

because, on the night of the accident, Sportsdrome employee Greg Gibson was 

filming the races from the position of an elevated scissor lift positioned in the 

main stretch of the racetrack. Clark contends that it can be inferred that Gibson 

knew Clark was in the wrong place, yet failed to alert Clark over the headset. 

Clark argues that these factors bear on the issue of whether Sportsdrome 

committed a willful or wanton omission. Id. Under the facts of this case, we 

disagree. 

[25] While some of these factors are admittedly in dispute, they do not constitute 

genuine issues of material fact. None of these allegations sheds light on the 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 20 of 21

pivotal question—did Sportsdrome have actual knowledge that any of these 

events would result in probable injury to Clark. Here, it is not important 

whether Clark had training, was placed in an improper position in Turn 4, was 

stationed alone, or was not contacted through the headset. These factors do not 

speak to the issue of whether Sportsdrome knew that injury to Clark was 

probable. Clark had volunteered at the racetrack on sixty prior occasions and 

each time had been required to sign the Release. The Release revealed both 

parties’ understanding that the restricted areas of the racetrack were more 

dangerous than the areas open to the general public. Clark understood that 

accidents were frequent and even admitted that the “main reason” he started 

going to the track “was to watch the wrecks.” Appellant’s App. at 152. Even so,

Clark had never seen a car go over a crash barrier, had only heard about one 

person being injured in the two years that he had volunteered at the track, and 

had only seen one car breach the entry to the pit. 

[26] On the night in question, a number of races concluded without incident; 

however, while Clark was still at the Turn 4 pit gate, an accident occurred on 

the racetrack that “caus[ed] a car to be propelled onto the crash barrier.” 

Appellant’s App. at 61. The car did not simply shoot into the Turn 4 pit gate; 

instead, “[a]s that car continued down the crash barrier, it reached the area near 

which [Clark] was stationed, crossed the gap in the barrier, struck the barrier 

where it begins again on the other side of the opening, pivoted outward and 

landed on [Clark].” Id. at 61, 67. The fact that a racecar entered the pit gate 

was unusual, and even more unusual was the fact that the car hit Clark. The 
Court of Appeals of Indiana | Memorandum Decision 10A01-1505-CT-341|March 29, 2016 Page 21 of 21

record does not show that Sportsdrome had actual knowledge that an accident 

was probable, let alone that an injury to Clark was probable. Constructive 

knowledge is not sufficient, and where a plaintiff fails to provide adequate 

evidence for his allegations, Indiana courts do not hesitate to dispose of such 

claims as matter of law. Westray v. Wright, 834 N.E.2d 173, 181 (Ind. Ct. App. 

2005). In the absence of any genuine issue of material fact, the trial court erred 

when it denied Sportsdrome’s motion for summary judgment. 

[27] For the foregoing reasons, we reverse the trial court’s denial of Sportsdrome’s 

motion for summary judgment and remand with instructions to enter summary 

judgment in favor of Sportsdrome on Clark’s claims.

[28] Reversed and remanded.

[29] Mathias, J., and Brown, J., concur.