Willful and wanton acts are those which, under the circumstances of the particular case, exhibit reckless disregard for the safety of others, including the failure to exercise ordinary care to prevent an impending danger. To establish that a defendant was guilty of willful and wanton conduct, plaintiff must show that the defendant had actual or constructive knowledge that his conduct posed a high probability of serious physical harm to others. The evidence must disclose that defendant was reckless, not merely careless, in his disregard of the danger created by the circumstances. Whether a defendant's acts amounted to willful and wanton conduct is a question to be resolved by the finder of fact, based upon the particular circumstances of each individual case.
Injured party was standing just off the race track when driver struck injured party. Injured party filed suit against racing association and the driver. The jury entered a verdict in favor of injured party. The jury also found that injured party was comparatively negligent. Racing association and injured party appealed. The court held that there was sufficient evidence to prove that racing association's conduct was willful and wanton. Racing association also contended that the trial court erred in denying its motion to pursue their affirmative defense that they were not liable because injured party executed a release.
Is an express assumption of the risk a bar to filing suit alleging willful and wanton acts of the defendant?
The court held that an express assumption of the risk was not a bar for injuries due to willful and wanton acts of a defendant. The court determined that the release was not admissible to show that injured party's actions amounted to an assumption of the risks arising from his participation in the race. The court also held that the trial court properly permitted the jury to consider the injured party's comparative fault, based upon principal of ordinary negligence, as an offset to the compensatory damages awarded for racing association's willful and wanton conduct.