Andrea Nicole Costello v. GLEN WOOD COMPANY, DBA Wood Brothers Racing, a foreign corporation; TRAVIS ALEXANDER

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREA NICOLE COSTELLO,
Plaintiff-Appellant,
v.
GLEN WOOD COMPANY, DBA Wood
Brothers Racing, a foreign corporation;
TRAVIS ALEXANDER,
Defendants-Appellees,
and
NATIONAL ASSOCIATION FOR STOCK
CAR AUTO RACING, LLC,
Defendant,
v.
SPEEDWAY MOTORSPORTS, LLC; et al.,
Third-party-defendants.
No. 21-16840
D.C. No.
2:19-cv-01752-APG-BNW
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted December 9, 2022
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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San Francisco, California
Before: BRESS and VANDYKE, Circuit Judges, and RESTANI,** Judge.
Andrea Costello appeals the district court’s grant of summary judgment on
her negligence and gross negligence claims in favor of Glen Wood Company,
DBA Wood Brothers Racing, and Travis Alexander. As the parties are familiar
with the facts, we do not recount them in detail here. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
We review de novo a district court’s grant of summary judgment. MacIntyre
v. Carroll Coll., 48 F.4th 950, 954 (9th Cir. 2022) (citation omitted). “We view
the facts and reasonable inferences drawn from the facts in the nonmovant’s
favor.” Id. The moving party is entitled to summary judgment upon showing that
no genuine issue of material fact exists and that the movant is “entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Federal courts sitting in diversity must
apply the choice-of-law rules of the forum state. Fields v. Legacy Health Sys., 413
F.3d 943, 950 (9th Cir. 2005) (citation omitted).
First, under Nevada law, the choice-of-law provision identifying Florida law
in the waiver agreement Costello signed was valid. Nevada’s choice-of-law
principles generally permit choice-of-law provisions so long as: (1) the parties
** The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.

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acted in good faith; (2) were not evading Nevada law; (3) the chosen state’s law
had a substantial relation with the transaction; and (4) the agreement was not
contrary to Nevada public policy. See Progressive Gulf Ins. Co. v. Faehnrich, 130
Nev. 167, 171 (2014) (citation omitted). The waiver agreement clearly identified
that Florida law controlled, and Costello presented no evidence that the waiver was
made in bad faith or with the intent to evade Nevada law. Florida had a substantial
relationship with the contract because NASCAR is headquartered in Florida and
sponsored the race where Costello’s injury occurred. Thus, Florida law applies to
interpreting the waiver agreement.
Next, applying Florida law, the district court correctly concluded that the
waiver agreement barred Costello’s negligence claim. The waiver agreement
concerned injuries Costello could suffer at the event and expressly waived her right
to sue for harm caused by negligence. See Banfield v. Louis, 589 So. 2d 441, 444
(Fla. Dist. Ct. App. 1991) (per curiam) (“[W]aiver or exculpatory clauses, although
not looked upon with favor, are valid and enforceable … if the intent to relieve a
party of its own negligence is clear and unequivocal.”). The waiver contained a
specific list of absolved parties by capacity, including “vehicle owners,” “pit
crews,” and “agents and employees of each of them,” under which Defendants are
covered. See id. at 445 (“A waiver that identifies parties by capacity is sufficient
to absolve those parties from liability as a matter of law.”).

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Finally, applying Nevada law, the district court correctly granted summary
judgment on Costello’s gross negligence claim. The record evidence does not
show that Alexander failed to exercise even the slightest degree of care when
pulling the generator cart, particularly when he pulled the cart at a walking pace
and tried to navigate around people. See Hart v. Kline, 116 P.2d 672, 674 (Nev.
1941) (“Gross negligence is equivalent to the failure to exercise even a slight
degree of care.” (quoting Shaw v. Moore, 162 A. 373, 374 (Vt. 1932)). Thus, there
is no genuine issue of material fact and Defendants are entitled to judgment as a
matter of law.
AFFIRMED.

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