Kyle Larson’s car heads up into the fence. Photo via CNN
I was minding my own business Sunday, reading about the huge crash at the Daytona Speedway, and the dozens of people injured, when this quote jumped off the CNN page at me from one of the involved drivers, Brad Keselowski:
“As drivers, we assume the risk. But fans do not.”
Really? Don’t be so sure.
As a backdrop, you may want to look at this video shot from the stands where the debris flew through and over the retaining fence and into the crowd after Kyle Larson‘s car hit it and the front end disintegrated. A tire can be seen just one row back and three seats over from the cameraman, with at least one injured spectator on the ground and fans frantically waiving for medical assistance.
Since this crash took place in Florida, and I’m not licensed there, I’ll hit upon the issues that will be raised, leaving an ultimate determination as to how Florida law will handle the questions to others.
First, as a general proposition — and I’m using New York law here since that is what I’m familiar with but concepts will be the similar elsewhere — we look at what primary assumption of risk actually is, and how it confers complete protection against lawsuits for injuries from an event: It is:
a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation…If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.
Lawyers see cases like this – or at least attempts at cases like this — usually with foul balls in baseball and hockey pucks flying into the stands. It is not just the players on the field that are subject to the concept. We see it sometimes also with golf and with racing. You can read from two law review articles on the broad subject: Here and here.
Kyle Larson car on the fence. Photo credit: Associated Press/John Raoux
So here is the question: Is injury due to debris flying into the stands an obvious risk of sitting near the race track?
The answer, I think, must be yes. According to this 2002 article from the St. Petersburg Times, “Since 1990, 29 racing spectators have been killed by cars or flying parts, and another 70 have been injured.”
Those dangers are the reasons why a retaining fence has been placed at race tracks, a fence placed behind home plate for foul balls, and glass placed around the boards of hockey rinks. But still things get past, as owners of the events weigh the risks/benefits of putting these security features in place, which also happen to partially obstruct views of the event.
Some questions that the Florida lawyers will no doubt be asking:
1. Did the existence of the fence remove the obvious risk? This would be similar, I think, to a shard of broken baseball bat slipping through the fence behind home plate. Will there be different articles for small debris that flew through the fence as opposed to a tire that flew over it?
2. If the injured spectator was a minor that was unable to appreciate the risks of car parts flying into the stands, would that youth be able to proceed?
3. Are any of the people involved in the crash, or the makers of the car, responsible for causing the accident?
4. Would the disclaimer on the back of the ticket serve as notice to participants that they might be injured? It is very general:
“The holder of this ticket expressly assumes all risk incident to the event, whether occurring prior to, during or subsequent to the actual event, and agrees that all participants, sanctioning bodies, and all employees, agents, officers, and directors of Daytona International Speedway, its affiliates and subsidiaries, are hereby released from any and all claims arising from the event, including claims of negligence.”
If this was New York, my guess is that, if push came to shove, that a potential suit against the track would fail.
Of course, not all suits fail. It is’t only the track that might be a defendant. In one Florida suit resulting from a race track accident with debris sailing over the fence:
A Citrus County man and father of three, Lake Wilson, suffered a major head injury in 1990, when the hood of a race car at Citrus County Speedway sailed over a fence and struck him full force. Wilson was in a coma for 10 months, emerging brain damaged. He won a settlement of $2.7-million — not from the speedway, but the company that distributed the pins that failed to hold the car hood in place.
If any Florida lawyers want to take a crack at this in the comments, be my guest…
Another interesting (to me) facet of this story is the attempt by NASCAR to prevent publication of any videos of the accident taken by fans on the basis of a claim of blanket ownership of any and all images from the track — and the implied consent to same by using the admission ticket.
If that be the case, why not prevent publication of ANY track occurrence images, such as a victory flag, rather than only the images that put NASCAR in a bad light? Bad PR.
Published pictures of the aftermath show that the actual flying missile is one entire front side suspension assembly, which went OVER the fence rather than through it. So, now we have the car owner and builder potentially on the hook as well. Note that the so-called “wheel tethers” as mandated in Formula I would not have helped. They would only have been another part of the debris.
The track did improve the fencing recently, so may well have a case on its part for prudent behavior in the face of foreseeable mishaps. I’m not a lawyer.
None of the injured has died, but were in “critical condition” for a while. Someone (NASCAR? track owners? car owners? drivers?) has the potential for a PR coup by just picking up the medical bills anyway. There is no lack of money in that sport. Don’t know what effect this would have on any subsequent legal pursuit.
I hear Mitt Rmoney knows a couple of team owners. Maybe he could drop a few quid.
If the track or car owners did decide to pick up the medical bills of the injured spectators, would that somehow count against them in court? Perhaps as some sort of admission of guilt? I’ve heard that could happen, but it seems like a very bad policy that gives far too much importance to a spur-of-the-moment decision and discourages doing the right thing without court involvement.
If the track or car owners did decide to pick up the medical bills of the injured spectators, would that somehow count against them in court?
Doubtful. First, any lawyer would make it part of an agreement that payment is not a concession of liability.
Second, it could be considered part of settlement negotiations, which don’t go before a jury — if they did, no one would ever enter into them for fear of it being used against them later.
Florida tracks the Federal Rule making payment of medical bills, etc. inadmissible to prove liability.
Florida tracks the Federal Rule making payment of medical bills, etc. inadmissible to prove liability.
A good rule. Thanks for letting us know. Parties should be encouraged to resolve as many issues as possible between themselves, leaving only the most vexing ones for a court.
Funny coincidence: five minutes before reading your blog, I bought online two tickets to our local roller derby (no joke) team’s opening season game in Richmond, California. It had a “click off” mandatory waiver of claims as to sitting in the trackside seats! Much better written than your NASCAR waiver quoted above. The big issue here is always whether the waiver specifically waives the negligence of the traack/stadium/eventholder; if not, it is not deemed to waive it.
The big issue here is always whether the waiver specifically waives the negligence of the traack/stadium/eventholder
Waiving negligent conduct? In New York, such a waiver would be unenforceable as against public policy.
“It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence.” National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 937–938. But we have better weather than you do.
I’m not at all sure that particular disclaimer would work in Florida, considering O’Connell v. Walt Disney World, 413 So.2d 444 (5DCA 1982). The waiver should include express waiver of claim due to racetrack’s own negligence, and this is simply vague negligence.
That said, I do not do PI, I am not your lawyer, &c. I do, however, feel that such printed disclaimers, delivered only after the money has changed hands, ought to be void as offending public policy and conscience.
This reminds me of a conundrum I was discussing with a personal injury friend of mine. The issue is “Gallon Smashing.” Have you heard of it? (lots of videos and news stories if you google it) I would like to hear your take on it, honestly. The idea is that kids go to a grocery store, grab milk, then smash it on the ground and pretend to be hurt.
The question is, what about those cases where the kid actually experiences real injury in the process? (there’s one or two of those videos as well) Where is the liability, and could a P.I. attorney expect to win a case for the kid?
The issue is “Gallon Smashing.” Have you heard of it? (lots of videos and news stories if you google it) I would like to hear your take on it, honestly. The idea is that kids go to a grocery store, grab milk, then smash it on the ground and pretend to be hurt.
I have no idea why you think intentionally destroying something and committing insurance fraud by pretending to be hurt is in any way related to car parts flying into a crowd.
But I did make sure to delete your self-promoting marketing url.