What Do You Think of This...DE & Lawsuit?
06-12-2006, 11:18 PM
#46
Originally Posted by RJay
Without a doubt. My only point of contention is that its a different posture to be defending oneself than to be defending others. At the end of the day, its the defendents who bear the personal risk after all.
Make no mistake, IMO this sort of thing is indeed threatening the sport we love, particularly in the gray area of DE, if for no other reason than ultimately if the potential for litigation becomes too onerous only professionals or for profit organizations will be able to cope with the problems. Just in terms of track fees, at least here in the Northeast PCA is substantially under the cost of our sister not for profit clubs, and half the cost of the for profits. If we were out of the picture, who know how much it might cost for a day at the track.
I thought long and hard about whether I really wanted to take on this particular job for the club, as every activity that involves moving cars is theoretically, my responsibility. For the moment, given the protections PCA has in place, there are people willing to serve. But its never been easy to get volunteers and adding any sense of personal risk into the equation isn't going to help. You mention the time commitment, and its true. The time commitment is significant enough with out the possiblity of receiving a subpoena and having to testify at a trial. Particulary so if the only reason I'm there is because its standard practise to sue everyone in sight regardless of the frivolity of it.
Increasingly boards are spending more time doing risk assessment as opposed to event planning. National, as you may or may not know has forbidden regions from running Karting events for example. While I'm not privy to the precise circumstances that led up to this decision, its clear that the underlying problem is the risk of injury and resulting lawsuits despite the presense of waivers and the other precautions you mention.
None of this is to say that any non-profit club should be exempt from situations where there is clear evidence of negligence on the part of the club. But **** happens. I can't count how many times I've heard of a green run group driver nearly making onto track in the wrong group for example. If they did and there was a serious accident, should there be legal recourse? If a driver is promoted to white and first time out at that level hits a tire barrier and winds up seriously injured, should the instructor that promoted him fear a legal action (something, minus the serious injury, I've seen happen btw). Short of obvious negligence, like knowing the track is covered in antifreeze and sending everyone out anyway cause, what the heck, it'll be a good learning experience, I'd like to hope that again, reasonable people would be prepared to say thats there is risk and reward in what we do, and that sadly, on rare occasion, some of us will pay a heavy price knowing full well that that was the deal we signed on the line for. And no offense to your chosen profession, but I, for one would rather not have to engage an attorney to have to assert this point in court.
Apparently, according to Redline, I missed shaking your hand at the Glen last year at Zone 1. If you're attending again, lets make sure that happens.
Make no mistake, IMO this sort of thing is indeed threatening the sport we love, particularly in the gray area of DE, if for no other reason than ultimately if the potential for litigation becomes too onerous only professionals or for profit organizations will be able to cope with the problems. Just in terms of track fees, at least here in the Northeast PCA is substantially under the cost of our sister not for profit clubs, and half the cost of the for profits. If we were out of the picture, who know how much it might cost for a day at the track.
I thought long and hard about whether I really wanted to take on this particular job for the club, as every activity that involves moving cars is theoretically, my responsibility. For the moment, given the protections PCA has in place, there are people willing to serve. But its never been easy to get volunteers and adding any sense of personal risk into the equation isn't going to help. You mention the time commitment, and its true. The time commitment is significant enough with out the possiblity of receiving a subpoena and having to testify at a trial. Particulary so if the only reason I'm there is because its standard practise to sue everyone in sight regardless of the frivolity of it.
Increasingly boards are spending more time doing risk assessment as opposed to event planning. National, as you may or may not know has forbidden regions from running Karting events for example. While I'm not privy to the precise circumstances that led up to this decision, its clear that the underlying problem is the risk of injury and resulting lawsuits despite the presense of waivers and the other precautions you mention.
None of this is to say that any non-profit club should be exempt from situations where there is clear evidence of negligence on the part of the club. But **** happens. I can't count how many times I've heard of a green run group driver nearly making onto track in the wrong group for example. If they did and there was a serious accident, should there be legal recourse? If a driver is promoted to white and first time out at that level hits a tire barrier and winds up seriously injured, should the instructor that promoted him fear a legal action (something, minus the serious injury, I've seen happen btw). Short of obvious negligence, like knowing the track is covered in antifreeze and sending everyone out anyway cause, what the heck, it'll be a good learning experience, I'd like to hope that again, reasonable people would be prepared to say thats there is risk and reward in what we do, and that sadly, on rare occasion, some of us will pay a heavy price knowing full well that that was the deal we signed on the line for. And no offense to your chosen profession, but I, for one would rather not have to engage an attorney to have to assert this point in court.
Apparently, according to Redline, I missed shaking your hand at the Glen last year at Zone 1. If you're attending again, lets make sure that happens.
My advice has to do with timing, and with the zen like thought that you should be doing your best regardless of the lawsuit. The lawsuit did not create the risk. Rather, the lawsuit is merely evidence of a risk that was there all along. We cannot stop a lawsuit from coming along, and we cannot affect the lawsuit that has already started. So, in many respects, the lawsuit is entirely irrelevant.
The decision or settlement that may result from the lawsuit could be relevant or not, but us worrying about it will not change that. So . . . let's not overreact, and let's remember that common sense is our best protection, not a bunch of reactionary measures (e.g., new rules) that could well come back to hurt us. Zen. Not much else to do.
If you really want to take a cynical view, you should hope that the facts in the incident were really, really bad, which arguably would make it easier to distinguish from nuisance lawsuits where we have acted reasonably. You have to admit that even the rumored facts are unusual for that event . . .
In the end, worrying or complaining about the lawsuit will not change anything or help us, so it is just a waste of our attention and energy.
RJAY (and Mark) I would love to meet you, but trust me that you didn't miss much by missing the chance to meet me . . . just ask my wife and friends
Originally Posted by SundayDriver
I see two significant area where it could change things a great deal:
1) Tracks may well abandon DE's as that does not make much money (I think I already mentioned that one)
2) Volunteers - knowing, through this example, that a flagger, instructor or any other worker can get dragged into a suit like this will certainly make some reconsider whether they want to volunteer. Will it be enough to mess up events? I don't know but it would not take much as most events struggle with getting enough workers.
BTW - I understand that the passenger had some relatively high level road racing experience. There is just more and more interesting detail leaking out about thsi case. It would be fascinating to be able to see all the real evidence when it finally comes out, but there are lot of interesting details in both directions. But, like you said, that is what discovery is for.
1) Tracks may well abandon DE's as that does not make much money (I think I already mentioned that one)
2) Volunteers - knowing, through this example, that a flagger, instructor or any other worker can get dragged into a suit like this will certainly make some reconsider whether they want to volunteer. Will it be enough to mess up events? I don't know but it would not take much as most events struggle with getting enough workers.
BTW - I understand that the passenger had some relatively high level road racing experience. There is just more and more interesting detail leaking out about thsi case. It would be fascinating to be able to see all the real evidence when it finally comes out, but there are lot of interesting details in both directions. But, like you said, that is what discovery is for.
I agree that the facts seem intriguing, so I am keeping an open mind (and an open ear) until more is revealed. Discovery, if the case lasts that long, should be fascinating.
06-13-2006, 02:32 PM
#47
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This discussion is mostly irrelevant: It will all boil down to whether the waiver works as intended (releasing everyone involved of responsibility for negligence). If that is not an adequate defense to liability for the foreseeable dangers of a track day, then you can kiss the future of such events good bye.
06-13-2006, 07:48 PM
#48
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Not so irrelevant. Track days where everybody does what the rules say are more predictable.
I'm predicting the waiver won't matter, because there were deviations from self-imposed standards.
AS
I'm predicting the waiver won't matter, because there were deviations from self-imposed standards.
AS
06-13-2006, 07:53 PM
#49
Originally Posted by Alexander Stemer
I'm predicting the waiver won't matter, because there were deviations from self-imposed standards.
AS
AS
How can your predictions be accurate at this point? Do you have access to all of the relevant facts in the case? Have you reviewed the waivers and the law regarding waivers in the relevant jurisdiction? Which standards? Were these standards binding and distributed to all participants? Did both participants have prior knowledge of the deviations? What leads you to make such a prediction?
TD
06-14-2006, 10:15 AM
#50
Before we predict the end of track as we know it, we should closely monitor the outcome and facts of this case.
First, it will highlight exactly the strengths and potential weaknesses of the waivers and other legal protection... certainly this will help us better judge thier effectiveness
Second, if the case is found in favor of the plaintiff on any issues it will tell us insight into where the true legal risks lie, and help improve programs.
My suspicion is that if damages are awarded it will be becasue of some clear variance between "reasonable" or "expected" risk and what actually happened... some possibilities:
1) The risk was grossly mis-stated... for example:
If I say "Track driving can be dangerous and result in damage to your car or injury"... and you wreck.. weil, you were warned... if I say "Have fun with your car in a safe, controlled environment".. and you wreck... well thats another tihing
If I promised you instruction and this was not provided, well... then there is a problem.
If I said events were operated to professional levels of safety, and then find staff were inadequate or unqualified, then we have a problem...
Clubs that say wht they do and do what they say should be at much less risk from this
2) Stated rules and procedures were not followed... this would clearly imply negligence of some level or another... but not necessarily threaten clubs that diligently follow rules and procedures.
3) Stated rules and procedures were found grossly inadequate compared with either the potential risks or rules and procedures of other organizations engaged in DE... again, this implies some level of negligence, but again not threaten clubs whose rules are within accepted norms.
There could also be rulings against PCNA or Cal Speedway that would, potentially not significantly apply to other DE events... for example:
CGT was judged to be dangerous in the hands of a novice driver... that does not impact us unless we drive CGTs
By varying the configuration of their basic barrier design, Cal Speedway was found negligent... although you cannot prove that the re-configured design was dangerous in an absolute sense, the fact that the standard design (presumably optimized for safety) was changed for reasons other than increasing safety, could be assumed to be less safe and thus more risky... such a situation is uniqe to Cal Speedway and to this specific instance, and would not apply to any other track or circumstance.
First, it will highlight exactly the strengths and potential weaknesses of the waivers and other legal protection... certainly this will help us better judge thier effectiveness
Second, if the case is found in favor of the plaintiff on any issues it will tell us insight into where the true legal risks lie, and help improve programs.
My suspicion is that if damages are awarded it will be becasue of some clear variance between "reasonable" or "expected" risk and what actually happened... some possibilities:
1) The risk was grossly mis-stated... for example:
If I say "Track driving can be dangerous and result in damage to your car or injury"... and you wreck.. weil, you were warned... if I say "Have fun with your car in a safe, controlled environment".. and you wreck... well thats another tihing
If I promised you instruction and this was not provided, well... then there is a problem.
If I said events were operated to professional levels of safety, and then find staff were inadequate or unqualified, then we have a problem...
Clubs that say wht they do and do what they say should be at much less risk from this
2) Stated rules and procedures were not followed... this would clearly imply negligence of some level or another... but not necessarily threaten clubs that diligently follow rules and procedures.
3) Stated rules and procedures were found grossly inadequate compared with either the potential risks or rules and procedures of other organizations engaged in DE... again, this implies some level of negligence, but again not threaten clubs whose rules are within accepted norms.
There could also be rulings against PCNA or Cal Speedway that would, potentially not significantly apply to other DE events... for example:
CGT was judged to be dangerous in the hands of a novice driver... that does not impact us unless we drive CGTs
By varying the configuration of their basic barrier design, Cal Speedway was found negligent... although you cannot prove that the re-configured design was dangerous in an absolute sense, the fact that the standard design (presumably optimized for safety) was changed for reasons other than increasing safety, could be assumed to be less safe and thus more risky... such a situation is uniqe to Cal Speedway and to this specific instance, and would not apply to any other track or circumstance.
06-14-2006, 11:19 AM
#51
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I have a question. I have stayed out of this discussion because I have no legal education. Sebring recently moved and built new walls to increase spectator space. Could this lead to liability even if the track advises us that the walls are changed? In other words, if this lawsuit finds that there is liability because of moved walls, would that make it nearly impossible to change a track layout ever for fear of creating liability?
06-14-2006, 02:27 PM
#52
Originally Posted by mitch236
I have a question. I have stayed out of this discussion because I have no legal education. Sebring recently moved and built new walls to increase spectator space. Could this lead to liability even if the track advises us that the walls are changed? In other words, if this lawsuit finds that there is liability because of moved walls, would that make it nearly impossible to change a track layout ever for fear of creating liability?
I think the relevant thing in the Cal Speedway case is that this was a temporary re-positioning of the barriers to a place where they normally would not be... so failure to return the track to its officially designed configuration could be presented as negligence in the same way that having a piece of equipment parked there would be...
06-14-2006, 04:41 PM
#53
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The reason I think the discussion is mostly irrelevant is that IF the waiver does its job it wont make any difference whether the deceased knew the actual risk level or not: by signing the waiver he attested to knowing there was significant risk, whether or not he truly appreciated it. Also it shouldn't make a difference if the event was competently or adequately staffed: the waiver excuses common negligence. (If a course worker was upset that the driver ignored a flag & pulled a gun and shot him, that's not negligence and wouldn't be covered). Everything I have read about this tragedy suggests negligence, not willful misconduct.
Ideally a good waiver does not prevent the Plaintiff from prevailing in court: it stops him from filing in the first place. In other words, the estate's attorney reads the waiver, figures it's hopeless and never files. Since that didn't happen we have to assume the waiver will nonetheless prevail and the case will be dismissed or will be unsuccessful. I think the odds favor the waiver, but creative attorneys can occasionally do what seems to be impossible.
Ideally a good waiver does not prevent the Plaintiff from prevailing in court: it stops him from filing in the first place. In other words, the estate's attorney reads the waiver, figures it's hopeless and never files. Since that didn't happen we have to assume the waiver will nonetheless prevail and the case will be dismissed or will be unsuccessful. I think the odds favor the waiver, but creative attorneys can occasionally do what seems to be impossible.
06-14-2006, 04:46 PM
#54
356wannabe, I think much the same way you do, and I would hope that the waiver would prevail as well. It is hard to overcome a waiver. Nonetheless, they can be overcome. Since we do not know the facts here, it is hard to know how likely, or unlikely, it is that the waiver will succeed. Also, to the extent that the case involves something worse than standard negligence, then, arguably it should not affect the rest of us in our activities, provided that we do not ourselves exceed standard negligence in our own activities.
In the end, it all boils back down to the fact that we need to do a good job regardless of this particular lawsuit. If the lawsuit changes the law with respect to waivers, then we can modify our waiver language. I do not believe that a settlement or judgement for the plaintiffs spells the end of DE or racing. It is way too early to start speculating about that.
In the end, it all boils back down to the fact that we need to do a good job regardless of this particular lawsuit. If the lawsuit changes the law with respect to waivers, then we can modify our waiver language. I do not believe that a settlement or judgement for the plaintiffs spells the end of DE or racing. It is way too early to start speculating about that.
06-14-2006, 06:17 PM
#55
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TD and 356 - I would like to see the waiver the participants signed. Often the waiver is designed to protect the track and the event organizer (as well as employees, agents, contractors etc.) of the abovementioned. Some actually include language which prohibits recourse between participants i.e. I lose control of my car and crash into you, you cannot sue me for damages nor name the track/organizer in any attempt at litigation.
From what I have seen, the waiver is being attacked on the grounds that the degree of risk was not evident, it alleges that Ben was known to lose control of his car and that this was not disclosed. I agree with TD that if the waiver had the proper language, it should stand. Since the action is against multiple parties, the waiver may be accepted and the suit heard against parties not covered by the waiver, i.e. Porsche.
It will be interesting to see how the case evolves. The rich target is PAG itself. Frankly we could end up with the Defendant joining the suit claiming the car is/was defective. Shifting the blame there would leave Ben's family whole.
Mitch - regarding Sebring, I think it will depend on what they do with the walls. I am not an expert on track design, but I suspect that architects who specialize in such things (Alan Wilson comes to mind) might say something like "design principles broaddly known and accepted ini the industry require that all obstacles be parallel to the direction of travel and where this is not possible (curves for example) be protected by adequate run off area with sand and or gravel traps as necessary to reduce the speed of a vehicle which loses control."
If that's the case, the track might find itself liable since it knowingly or unknowingly violated safety principles well known in their field. If this is considered "gross negligence" then the waiver might not protect them.
On a personal note, I hope that Ben's family is not made to suffer more - financial ruin after a personal loss would be horrible. Someone called this mess tragic. I agree.
Best,
From what I have seen, the waiver is being attacked on the grounds that the degree of risk was not evident, it alleges that Ben was known to lose control of his car and that this was not disclosed. I agree with TD that if the waiver had the proper language, it should stand. Since the action is against multiple parties, the waiver may be accepted and the suit heard against parties not covered by the waiver, i.e. Porsche.
It will be interesting to see how the case evolves. The rich target is PAG itself. Frankly we could end up with the Defendant joining the suit claiming the car is/was defective. Shifting the blame there would leave Ben's family whole.
Mitch - regarding Sebring, I think it will depend on what they do with the walls. I am not an expert on track design, but I suspect that architects who specialize in such things (Alan Wilson comes to mind) might say something like "design principles broaddly known and accepted ini the industry require that all obstacles be parallel to the direction of travel and where this is not possible (curves for example) be protected by adequate run off area with sand and or gravel traps as necessary to reduce the speed of a vehicle which loses control."
If that's the case, the track might find itself liable since it knowingly or unknowingly violated safety principles well known in their field. If this is considered "gross negligence" then the waiver might not protect them.
On a personal note, I hope that Ben's family is not made to suffer more - financial ruin after a personal loss would be horrible. Someone called this mess tragic. I agree.
Best,
06-14-2006, 06:29 PM
#56
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Originally Posted by mitch236
I have a question. I have stayed out of this discussion because I have no legal education. Sebring recently moved and built new walls to increase spectator space. Could this lead to liability even if the track advises us that the walls are changed? In other words, if this lawsuit finds that there is liability because of moved walls, would that make it nearly impossible to change a track layout ever for fear of creating liability?
06-14-2006, 08:44 PM
#57
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TD,
My prediction is not based on certainty, because this whole process can be very caprecious. There is a "facts speak for themselves" element, however. (Yes, I admit we don't really KNOW all the facts 'til presented in evidence, tested, and verified). That is what underlies my prediction.
The obvious point is that people don't die at DE events. Have we heard of other organized DE events where a passenger has died? I certainly accept that this may have happened, but, if so, it is a rare event. The implication is that the death transpired because of events not known to or predictable by the passenger. He therefore accepted a risk he could not have reasonably known.
If everyone who thinks this cas has no validity were confident of that conclusion, there would be no debate, because the facts would be so clear that even if a jury erred, an appellate court would clean up the mess. AS
In the end, I don't think we will see the end of track days. There are now more opportunities than ever. Costs may rise, but they always do, until they reach the limits a willing buyer will pay a willing seller.
From Cory's widow's perspective, there are some facts she really needs to know, and she is at least entitled to that. AS
My prediction is not based on certainty, because this whole process can be very caprecious. There is a "facts speak for themselves" element, however. (Yes, I admit we don't really KNOW all the facts 'til presented in evidence, tested, and verified). That is what underlies my prediction.
The obvious point is that people don't die at DE events. Have we heard of other organized DE events where a passenger has died? I certainly accept that this may have happened, but, if so, it is a rare event. The implication is that the death transpired because of events not known to or predictable by the passenger. He therefore accepted a risk he could not have reasonably known.
If everyone who thinks this cas has no validity were confident of that conclusion, there would be no debate, because the facts would be so clear that even if a jury erred, an appellate court would clean up the mess. AS
In the end, I don't think we will see the end of track days. There are now more opportunities than ever. Costs may rise, but they always do, until they reach the limits a willing buyer will pay a willing seller.
From Cory's widow's perspective, there are some facts she really needs to know, and she is at least entitled to that. AS
06-14-2006, 09:31 PM
#58
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Originally Posted by Alexander Stemer
The obvious point is that people don't die at DE events. Have we heard of other organized DE events where a passenger has died? I certainly accept that this may have happened, but, if so, it is a rare event. The implication is that the death transpired because of events not known to or predictable by the passenger.
Deaths are tougher because of the low death rate per mile driven and the limited number of DE deaths. The data suggests a DE death every few years. Going 5 years without a death or even having 2 or 3 in one year is not statistically unthinkable. The point I am making is that DE's are dangerous - more dangerous than driving on the street and there is clearly a chance of death in a DE.
Now, contrary to that 'data' and common sense (driving cars at the limit at high speeds is risky) many DE organizers imply or state that it is a safe environment. Even your comments imply that you think that DE's are inherently safe events.
06-14-2006, 09:43 PM
#59
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I have learned a couple of lessons from this unfortunate situation. I will never again take passengers in my car on track, no matter what. And, while I passed a recent PCA instructors clinic, I have decided not to participate as an instructor either. The risk, and the potential liability in the event of an accident, is too great.
I morn the loss of personal responsibility in our society, and I'm taking steps to protect myself.
Jim
I morn the loss of personal responsibility in our society, and I'm taking steps to protect myself.
Jim
06-14-2006, 09:51 PM
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Alexander:
Anytime you go 150mph+ with stock seats, 3 pt highway belts, no head and neck devices, no cage, etc - you risk some form of injury or dying if something goes amuck... Something as simple as a schraeder (sp?) valve coming loose, or instantly leaking could make your day pretty darn bad.
I've seen at least 4-5 incidents where people should have died or been seriously injured at DE's and haven't been. It has simply been luck and the grace of God that they weren't killed or injured.
A friend of mine in a stock BMW M3 (E46, 2002 model), wrecked at VIR, with stock belts, stock seats, upgraded brakes and slicks. When the paramedics got to him he was laying in the back seat with a broken front seat, no harness on him, etc. How did he not break his back, etc???
Or the time the Miata flipped in front of me, and I could see he and his instructors arms flailing around inside the open-cockpit as they bounced off the ground, up in the air, etc.
Brian
Anytime you go 150mph+ with stock seats, 3 pt highway belts, no head and neck devices, no cage, etc - you risk some form of injury or dying if something goes amuck... Something as simple as a schraeder (sp?) valve coming loose, or instantly leaking could make your day pretty darn bad.
The obvious point is that people don't die at DE events.
A friend of mine in a stock BMW M3 (E46, 2002 model), wrecked at VIR, with stock belts, stock seats, upgraded brakes and slicks. When the paramedics got to him he was laying in the back seat with a broken front seat, no harness on him, etc. How did he not break his back, etc???
Or the time the Miata flipped in front of me, and I could see he and his instructors arms flailing around inside the open-cockpit as they bounced off the ground, up in the air, etc.
Brian