Track liability waivers not enforceable?
12-14-2017, 09:40 PM
#16
Anjin San
Rennlist Member
Rennlist Member
Join Date: Mar 2005
Location: South Pasadangerous, California
Posts: 21,881
Likes: 0
Received 7 Likes
on
5 Posts
Sometimes it looks and feels like judges do things to run up legal fees. Whether or not it’s for ignorance or just just doing things to drag out something is unclear.
That being said I wonder when the last time the waivers were updated or if, like my region, waivers were overused, or putting a burden to a point that nobody wants to use them. It might need a video of the signer saying while he signs that he understands what he is signing. Some Loan Brokers do tape signing to protect themselves.
12-14-2017, 10:16 PM
#17
Race Car
Join Date: Apr 2005
Location: With A Manual Transmission
Posts: 4,728
Likes: 0
Received 2 Likes
on
2 Posts
I'l be honest, I got rear ended last weekend avoiding a crash by a guy who had 150 yards to see and avoid. He hit me at full speed in spite of dirt, dust and a full line of sight. He also passed under red and divebombed all in the same day. His repeated stupidity makes me want to take some action, if not just to make him spend money. He deserves it. That level of incompetence does not deserve to drive on a track.
12-15-2017, 10:05 AM
#19
WRONGLY ACCUSED!
Rennlist Member
Rennlist Member
Join Date: Nov 2011
Location: Connecticut Valley Region
Posts: 14,449
Received 3,237 Likes
on
1,576 Posts
Disclaimer - I used to be a litigator 20 years ago but never worked in the area of tort law. My current area of expertise is commercial real estate taxation.
That being said, let me explain why this article is completely misleading.
Let's start with this thought - as an attorney one of the most routine random questions you get from people is "can I sue someone for X"? Where X is a bad hair cut, or something like that. My answer is always "ABSOLUTELY you can sue them for that! Winning the case? - now that's a different story because that's never going to happen."
In the article it says that the judge is allowing the case to go forward. This means the plaintiff brought a motion to dismiss. In simple terms a motion to dismiss is where a defendant tells the court that there is no way the plaintiff could ever be successful in the case, and in the interest of not wasting everyone's time, it doesn't even need to be litigated. Because the plaintiff's case is never heard it is a very high bar to get over. Accordingly, a motion to dismiss generally has very low odds of being successful. The judge basically made a ruling saying that the defendant's didn't meet the very high burden of getting the case dismissed without being heard. It is not an indication in any way shape or form of the viability of the plaintiff's case, other than the case is one step up from being a complete waste of time to the court.
Secondly, the real issue at hand is not the waiver itself because Tony Stewart is being accused of INTENTIONALLY hitting the decedent. You can never waive your rights to an intentional injury. Note well cases involving hockey for example. If you check someone into the boards in the normal course of play, and they crack a rib, no liability. But if you skate half-way across the ice, and cross-check them into the boards after the whistle has blown, you probably have some liability if you hurt them.
In the instant matter the liability waiver would not protect Tony Stewart if he intentionally tried to hit the decadent, or even if he just meant to spray him with dirt, and then hit him. That would be an intentional act.
Additionally, even if this goes to trial there is no guaranty the decadent's family wins, and even if they win, Tony Stewart can still appeal it. There is a long way to go before this is over - potentially years - unless Tony Stewart settles at some point, which might be the smart thing to do.
Lastly, and perhaps more importantly, a bad verdict would NOT mean the end of liability waivers at all. This is a different type of case in which an intentional act is being alleged. They may have thrown in some "negligent" claims, because you always throw in the kitchen sink in these types of matters, but an intentional act is what is at stake here. There is always the outside chance that a judge totally misunderstands the law and gives a bad ruling, but that is what appeals courts are for. There is a saying in the law - "hard cases make bad law." Where a judge tries to social engineer a favorable ruling for a plaintiff because "it is the right thing to do" it creates bad precedent. It happens. But, again, that is what appeals courts are for.
Accordingly, everyone can go back to DE and racing and have some degree of confidence in your waiver. Just don't let red mist creep into your actions and you won't have to worry, unlike Tony, who does have to worry somewhat because that is what is being alleged.
Now remember kids, I may be a lawyer, but I am not your lawyer, so none of the above is intended as legal advice. Just some random blathering on the internet!
That being said, let me explain why this article is completely misleading.
Let's start with this thought - as an attorney one of the most routine random questions you get from people is "can I sue someone for X"? Where X is a bad hair cut, or something like that. My answer is always "ABSOLUTELY you can sue them for that! Winning the case? - now that's a different story because that's never going to happen."
In the article it says that the judge is allowing the case to go forward. This means the plaintiff brought a motion to dismiss. In simple terms a motion to dismiss is where a defendant tells the court that there is no way the plaintiff could ever be successful in the case, and in the interest of not wasting everyone's time, it doesn't even need to be litigated. Because the plaintiff's case is never heard it is a very high bar to get over. Accordingly, a motion to dismiss generally has very low odds of being successful. The judge basically made a ruling saying that the defendant's didn't meet the very high burden of getting the case dismissed without being heard. It is not an indication in any way shape or form of the viability of the plaintiff's case, other than the case is one step up from being a complete waste of time to the court.
Secondly, the real issue at hand is not the waiver itself because Tony Stewart is being accused of INTENTIONALLY hitting the decedent. You can never waive your rights to an intentional injury. Note well cases involving hockey for example. If you check someone into the boards in the normal course of play, and they crack a rib, no liability. But if you skate half-way across the ice, and cross-check them into the boards after the whistle has blown, you probably have some liability if you hurt them.
In the instant matter the liability waiver would not protect Tony Stewart if he intentionally tried to hit the decadent, or even if he just meant to spray him with dirt, and then hit him. That would be an intentional act.
Additionally, even if this goes to trial there is no guaranty the decadent's family wins, and even if they win, Tony Stewart can still appeal it. There is a long way to go before this is over - potentially years - unless Tony Stewart settles at some point, which might be the smart thing to do.
Lastly, and perhaps more importantly, a bad verdict would NOT mean the end of liability waivers at all. This is a different type of case in which an intentional act is being alleged. They may have thrown in some "negligent" claims, because you always throw in the kitchen sink in these types of matters, but an intentional act is what is at stake here. There is always the outside chance that a judge totally misunderstands the law and gives a bad ruling, but that is what appeals courts are for. There is a saying in the law - "hard cases make bad law." Where a judge tries to social engineer a favorable ruling for a plaintiff because "it is the right thing to do" it creates bad precedent. It happens. But, again, that is what appeals courts are for.
Accordingly, everyone can go back to DE and racing and have some degree of confidence in your waiver. Just don't let red mist creep into your actions and you won't have to worry, unlike Tony, who does have to worry somewhat because that is what is being alleged.
Now remember kids, I may be a lawyer, but I am not your lawyer, so none of the above is intended as legal advice. Just some random blathering on the internet!
12-15-2017, 10:55 AM
#21
Rennlist Member
Disclaimer - I used to be a litigator 20 years ago but never worked in the area of tort law. My current area of expertise is commercial real estate taxation.
That being said, let me explain why this article is completely misleading.
Let's start with this thought - as an attorney one of the most routine random questions you get from people is "can I sue someone for X"? Where X is a bad hair cut, or something like that. My answer is always "ABSOLUTELY you can sue them for that! Winning the case? - now that's a different story because that's never going to happen."
In the article it says that the judge is allowing the case to go forward. This means the plaintiff brought a motion to dismiss. In simple terms a motion to dismiss is where a defendant tells the court that there is no way the plaintiff could ever be successful in the case, and in the interest of not wasting everyone's time, it doesn't even need to be litigated. Because the plaintiff's case is never heard it is a very high bar to get over. Accordingly, a motion to dismiss generally has very low odds of being successful. The judge basically made a ruling saying that the defendant's didn't meet the very high burden of getting the case dismissed without being heard. It is not an indication in any way shape or form of the viability of the plaintiff's case, other than the case is one step up from being a complete waste of time to the court.
Secondly, the real issue at hand is not the waiver itself because Tony Stewart is being accused of INTENTIONALLY hitting the decedent. You can never waive your rights to an intentional injury. Note well cases involving hockey for example. If you check someone into the boards in the normal course of play, and they crack a rib, no liability. But if you skate half-way across the ice, and cross-check them into the boards after the whistle has blown, you probably have some liability if you hurt them.
In the instant matter the liability waiver would not protect Tony Stewart if he intentionally tried to hit the decadent, or even if he just meant to spray him with dirt, and then hit him. That would be an intentional act.
Additionally, even if this goes to trial there is no guaranty the decadent's family wins, and even if they win, Tony Stewart can still appeal it. There is a long way to go before this is over - potentially years - unless Tony Stewart settles at some point, which might be the smart thing to do.
Lastly, and perhaps more importantly, a bad verdict would NOT mean the end of liability waivers at all. This is a different type of case in which an intentional act is being alleged. They may have thrown in some "negligent" claims, because you always throw in the kitchen sink in these types of matters, but an intentional act is what is at stake here. There is always the outside chance that a judge totally misunderstands the law and gives a bad ruling, but that is what appeals courts are for. There is a saying in the law - "hard cases make bad law." Where a judge tries to social engineer a favorable ruling for a plaintiff because "it is the right thing to do" it creates bad precedent. It happens. But, again, that is what appeals courts are for.
Accordingly, everyone can go back to DE and racing and have some degree of confidence in your waiver. Just don't let red mist creep into your actions and you won't have to worry, unlike Tony, who does have to worry somewhat because that is what is being alleged.
Now remember kids, I may be a lawyer, but I am not your lawyer, so none of the above is intended as legal advice. Just some random blathering on the internet!
That being said, let me explain why this article is completely misleading.
Let's start with this thought - as an attorney one of the most routine random questions you get from people is "can I sue someone for X"? Where X is a bad hair cut, or something like that. My answer is always "ABSOLUTELY you can sue them for that! Winning the case? - now that's a different story because that's never going to happen."
In the article it says that the judge is allowing the case to go forward. This means the plaintiff brought a motion to dismiss. In simple terms a motion to dismiss is where a defendant tells the court that there is no way the plaintiff could ever be successful in the case, and in the interest of not wasting everyone's time, it doesn't even need to be litigated. Because the plaintiff's case is never heard it is a very high bar to get over. Accordingly, a motion to dismiss generally has very low odds of being successful. The judge basically made a ruling saying that the defendant's didn't meet the very high burden of getting the case dismissed without being heard. It is not an indication in any way shape or form of the viability of the plaintiff's case, other than the case is one step up from being a complete waste of time to the court.
Secondly, the real issue at hand is not the waiver itself because Tony Stewart is being accused of INTENTIONALLY hitting the decedent. You can never waive your rights to an intentional injury. Note well cases involving hockey for example. If you check someone into the boards in the normal course of play, and they crack a rib, no liability. But if you skate half-way across the ice, and cross-check them into the boards after the whistle has blown, you probably have some liability if you hurt them.
In the instant matter the liability waiver would not protect Tony Stewart if he intentionally tried to hit the decadent, or even if he just meant to spray him with dirt, and then hit him. That would be an intentional act.
Additionally, even if this goes to trial there is no guaranty the decadent's family wins, and even if they win, Tony Stewart can still appeal it. There is a long way to go before this is over - potentially years - unless Tony Stewart settles at some point, which might be the smart thing to do.
Lastly, and perhaps more importantly, a bad verdict would NOT mean the end of liability waivers at all. This is a different type of case in which an intentional act is being alleged. They may have thrown in some "negligent" claims, because you always throw in the kitchen sink in these types of matters, but an intentional act is what is at stake here. There is always the outside chance that a judge totally misunderstands the law and gives a bad ruling, but that is what appeals courts are for. There is a saying in the law - "hard cases make bad law." Where a judge tries to social engineer a favorable ruling for a plaintiff because "it is the right thing to do" it creates bad precedent. It happens. But, again, that is what appeals courts are for.
Accordingly, everyone can go back to DE and racing and have some degree of confidence in your waiver. Just don't let red mist creep into your actions and you won't have to worry, unlike Tony, who does have to worry somewhat because that is what is being alleged.
Now remember kids, I may be a lawyer, but I am not your lawyer, so none of the above is intended as legal advice. Just some random blathering on the internet!
12-15-2017, 11:32 AM
#22
I'm not a lawyer. But closer to home the classic Autoclub speedway porsche CGT wreck/death the waiver shield was pierced. The Ferrari driver was nailed with vicarious liability of around $100K for following the marshal's instruction yet being on course. I do not know who actually pays out on those claims. I also don't know how to protect one's self from on track liability exposure. Your typical home owner's policy will not do it. Racing activity is an exclusion in umbrella's and personal excess liability policies. They only safeguard appears to be participating with big organizations like 67,000 member SCCA who lists each participant as an "additional insured" and who regularly posts the declaration page of their policy to members and makes available copy of the actual policy upon request. I personally have found no other organization as forthcoming with their insurance provisions. I would love to hear what other orgs are doing or how other racers, especially you lawyers, protect yourselves.
12-15-2017, 11:37 AM
#23
Rennlist
Basic Site Sponsor
Basic Site Sponsor
Join Date: Jun 2008
Location: Durham, NC and Virginia International Raceway
Posts: 18,649
Received 2,799 Likes
on
1,654 Posts
The plaintiffs pierced the waiver due to proving “gross negligence,” IiRC, FBB. A tall order...
12-15-2017, 12:04 PM
#24
Addict
Rennlist Member
Rennlist Member
Disclaimer - I used to be a litigator 20 years ago but never worked in the area of tort law. My current area of expertise is commercial real estate taxation.
That being said, let me explain why this article is completely misleading.
Let's start with this thought - as an attorney one of the most routine random questions you get from people is "can I sue someone for X"? Where X is a bad hair cut, or something like that. My answer is always "ABSOLUTELY you can sue them for that! Winning the case? - now that's a different story because that's never going to happen."
In the article it says that the judge is allowing the case to go forward. This means the plaintiff brought a motion to dismiss. In simple terms a motion to dismiss is where a defendant tells the court that there is no way the plaintiff could ever be successful in the case, and in the interest of not wasting everyone's time, it doesn't even need to be litigated. Because the plaintiff's case is never heard it is a very high bar to get over. Accordingly, a motion to dismiss generally has very low odds of being successful. The judge basically made a ruling saying that the defendant's didn't meet the very high burden of getting the case dismissed without being heard. It is not an indication in any way shape or form of the viability of the plaintiff's case, other than the case is one step up from being a complete waste of time to the court.
Secondly, the real issue at hand is not the waiver itself because Tony Stewart is being accused of INTENTIONALLY hitting the decedent. You can never waive your rights to an intentional injury. Note well cases involving hockey for example. If you check someone into the boards in the normal course of play, and they crack a rib, no liability. But if you skate half-way across the ice, and cross-check them into the boards after the whistle has blown, you probably have some liability if you hurt them.
In the instant matter the liability waiver would not protect Tony Stewart if he intentionally tried to hit the decadent, or even if he just meant to spray him with dirt, and then hit him. That would be an intentional act.
Additionally, even if this goes to trial there is no guaranty the decadent's family wins, and even if they win, Tony Stewart can still appeal it. There is a long way to go before this is over - potentially years - unless Tony Stewart settles at some point, which might be the smart thing to do.
Lastly, and perhaps more importantly, a bad verdict would NOT mean the end of liability waivers at all. This is a different type of case in which an intentional act is being alleged. They may have thrown in some "negligent" claims, because you always throw in the kitchen sink in these types of matters, but an intentional act is what is at stake here. There is always the outside chance that a judge totally misunderstands the law and gives a bad ruling, but that is what appeals courts are for. There is a saying in the law - "hard cases make bad law." Where a judge tries to social engineer a favorable ruling for a plaintiff because "it is the right thing to do" it creates bad precedent. It happens. But, again, that is what appeals courts are for.
Accordingly, everyone can go back to DE and racing and have some degree of confidence in your waiver. Just don't let red mist creep into your actions and you won't have to worry, unlike Tony, who does have to worry somewhat because that is what is being alleged.
Now remember kids, I may be a lawyer, but I am not your lawyer, so none of the above is intended as legal advice. Just some random blathering on the internet!
That being said, let me explain why this article is completely misleading.
Let's start with this thought - as an attorney one of the most routine random questions you get from people is "can I sue someone for X"? Where X is a bad hair cut, or something like that. My answer is always "ABSOLUTELY you can sue them for that! Winning the case? - now that's a different story because that's never going to happen."
In the article it says that the judge is allowing the case to go forward. This means the plaintiff brought a motion to dismiss. In simple terms a motion to dismiss is where a defendant tells the court that there is no way the plaintiff could ever be successful in the case, and in the interest of not wasting everyone's time, it doesn't even need to be litigated. Because the plaintiff's case is never heard it is a very high bar to get over. Accordingly, a motion to dismiss generally has very low odds of being successful. The judge basically made a ruling saying that the defendant's didn't meet the very high burden of getting the case dismissed without being heard. It is not an indication in any way shape or form of the viability of the plaintiff's case, other than the case is one step up from being a complete waste of time to the court.
Secondly, the real issue at hand is not the waiver itself because Tony Stewart is being accused of INTENTIONALLY hitting the decedent. You can never waive your rights to an intentional injury. Note well cases involving hockey for example. If you check someone into the boards in the normal course of play, and they crack a rib, no liability. But if you skate half-way across the ice, and cross-check them into the boards after the whistle has blown, you probably have some liability if you hurt them.
In the instant matter the liability waiver would not protect Tony Stewart if he intentionally tried to hit the decadent, or even if he just meant to spray him with dirt, and then hit him. That would be an intentional act.
Additionally, even if this goes to trial there is no guaranty the decadent's family wins, and even if they win, Tony Stewart can still appeal it. There is a long way to go before this is over - potentially years - unless Tony Stewart settles at some point, which might be the smart thing to do.
Lastly, and perhaps more importantly, a bad verdict would NOT mean the end of liability waivers at all. This is a different type of case in which an intentional act is being alleged. They may have thrown in some "negligent" claims, because you always throw in the kitchen sink in these types of matters, but an intentional act is what is at stake here. There is always the outside chance that a judge totally misunderstands the law and gives a bad ruling, but that is what appeals courts are for. There is a saying in the law - "hard cases make bad law." Where a judge tries to social engineer a favorable ruling for a plaintiff because "it is the right thing to do" it creates bad precedent. It happens. But, again, that is what appeals courts are for.
Accordingly, everyone can go back to DE and racing and have some degree of confidence in your waiver. Just don't let red mist creep into your actions and you won't have to worry, unlike Tony, who does have to worry somewhat because that is what is being alleged.
Now remember kids, I may be a lawyer, but I am not your lawyer, so none of the above is intended as legal advice. Just some random blathering on the internet!
12-15-2017, 12:13 PM
#25
Registered User
I'm not a lawyer. But closer to home the classic Autoclub speedway porsche CGT wreck/death the waiver shield was pierced. The Ferrari driver was nailed with vicarious liability of around $100K for following the marshal's instruction yet being on course. I do not know who actually pays out on those claims. I also don't know how to protect one's self from on track liability exposure. Your typical home owner's policy will not do it. Racing activity is an exclusion in umbrella's and personal excess liability policies. They only safeguard appears to be participating with big organizations like 67,000 member SCCA who lists each participant as an "additional insured" and who regularly posts the declaration page of their policy to members and makes available copy of the actual policy upon request. I personally have found no other organization as forthcoming with their insurance provisions. I would love to hear what other orgs are doing or how other racers, especially you lawyers, protect yourselves.
PCA is less clear on whether they provide ANY protection for the drivers in case of liability... I would think that they do, but no one will verify it.
I suspect that most folks would GLADLY pay an extra $50 an event to have some liability coverage thrown in...
I know Lockton and others sell liability coverage. But at $2500 or so for 1mm in coverage, that's about $500 an event at my current pace, and they only cover HPDE...
12-15-2017, 12:16 PM
#26
Rennlist Member
I'l be honest, I got rear ended last weekend avoiding a crash by a guy who had 150 yards to see and avoid. He hit me at full speed in spite of dirt, dust and a full line of sight. He also passed under red and divebombed all in the same day. His repeated stupidity makes me want to take some action, if not just to make him spend money. He deserves it. That level of incompetence does not deserve to drive on a track.
Peter
12-15-2017, 12:16 PM
#27
Registered User
This is pretty much how I see it as well. The waiver is good until someone does something malicious with intent. Proving Tony had intent to hit or even spray him with dirt is virtually impossible. If I had to bet, I would say the plaintiff attorney's tactics would be to use Tony's professional and championship status against him and argue that he could have avoided hitting the deceased if he wanted to but didn't and bring up his history of being a hot head on the track. Conversely, they could argue that even if he only intended to spray him with dirt, he miscalculated and is negligent in striking the deceased. It's going to be hard for a jury of 12 to convict given the toxicology report showed marijuana in the deceased system at the time of the incident which may or may not have contributed to the deceased getting out of his car on a hot track....
Yeah, but in the real world here is the risk:
Driver A hits/nudges Driver B. Avoidable? Not avoidable? Doesn't matter. Driver B sues Driver A despite having signed a waiver. Heaven forbid Driver B is a CGT and Driver A is a 944.
The guy in the 944 is now in a position to shell out $30-40k in legal fees, just to defend the waiver.
That's why, PCA SHOULD play a role and have some liability coverage available...
12-15-2017, 12:22 PM
#28
Rennlist Member
Thread Starter
Originally Posted by bpu699
Yeah, but in the real world here is the risk:
Driver A hits/nudges Driver B. Avoidable? Not avoidable? Doesn't matter. Driver B sues Driver A despite having signed a waiver. Heaven forbid Driver B is a CGT and Driver A is a 944.
The guy in the 944 is now in a position to shell out $30-40k in legal fees, just to defend the waiver.
That's why, PCA SHOULD play a role and have some liability coverage available...
Driver A hits/nudges Driver B. Avoidable? Not avoidable? Doesn't matter. Driver B sues Driver A despite having signed a waiver. Heaven forbid Driver B is a CGT and Driver A is a 944.
The guy in the 944 is now in a position to shell out $30-40k in legal fees, just to defend the waiver.
That's why, PCA SHOULD play a role and have some liability coverage available...
12-15-2017, 12:38 PM
#30
Rennlist Member
Thread Starter
Originally Posted by Matt Romanowski
That's now what happened here.