CGT crash settled at $4.5M
10-25-2007, 04:10 PM
#166
Do the lawyers on this board think that if this was a "race" event (like spec miata) that the ameteur participants would be held to a higher standard such that the incident would be chalked up as a "race incident" and no liability? The Ferrari guy shared the least liability but also had the shallow pocket. Do you think he would have been thrown out of the settlement if this was demmed a race incident?
10-25-2007, 06:07 PM
#167
Do the lawyers on this board think that if this was a "race" event (like spec miata) that the ameteur participants would be held to a higher standard such that the incident would be chalked up as a "race incident" and no liability? The Ferrari guy shared the least liability but also had the shallow pocket. Do you think he would have been thrown out of the settlement if this was demmed a race incident?
Traditionally, race and, more generally, sports particpants are deemed to "assume the risks" of the activity in which they compete and liability would be almost (but never entirely depending upon circumstances) non-existent.
As TD points out, the case we've been discussing in this thread was resolved through a voluntary "settlement", so the Ferrari driver's financial contribution towards the resolution (as was Porsche's) was based mostly (if not exclusively) on just getting out of the claim without incurring additional defense costs. Personally, I don't believe that the driver of the Ferrari did anything that would ultimately be determined "negligent" - but, the case never got to a jury.
I would add that, in my opinion, the CGT case was very defensible. The lawsuit wasn't at all "frivolous" (meaning completely devoid of merit) as certain unusual facts of that particular accident served to make the plaintiff's case "plausible". Which doesn't mean that plaintiff's arguments would have "carried the day" through trial.
Getting back to your main question, it would be nearly impossible for a racer to surmount the legal doctrine of assumption of the risk that would result in a tenable claim against a track or sanctioning body, etc.
10-25-2007, 06:27 PM
#168
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I think you missed my point. Large earning potential is probably the largest factor in the settlement value of a wrongful death action. If Corey had been a teller at a bank the settlement value would have been low enough that the case might never have been filed. It helps that Ben's estate had assets, too. That the settlement was just $4.5 million suggests to me that the case was not that strong, hence it is not as threatening to our hobby as it could be. (Looking for the silver lining.)
These 2 guys paid with their lives for someone else's stupid track configuration, and an ensuing bad set of circumstances, and MAYBE some degree of lack of skill on the drivers part. I say maybe because I don't know if anyone could have avoided the Ferreri. They had the option to not get in that car, but with their own free will chose to do so. The fact that the families and Porsche (even if insurance paid) were made to pay is chilling.
10-25-2007, 06:38 PM
#169
Thank You. So my read on this is we have one more reason to work our way from DE to timetrials to racing. Perhaps the fun factor increases while the personal liability decreases as we move along in the sport. Somehow there is most likely a "gotta" in my line of thinking.
10-25-2007, 07:05 PM
#170
I have seen this with some other orgs as well. But when the signature Danica Patrick appears in Tom Jones' box, Tom Jones will still say that he didn't sign any waiver. The registration folks have to consistently watch and make sure that they sign on the right line. Then it becomes a forgery issue.
10-25-2007, 07:06 PM
#171
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I think I just realized what's really been bothering me about this lawsuit. I'm just not comfortable with how this grieving widow sued everyone in sight; the CGT driver, the Ferrari driver, the track, the manufacturer, the organizer, etc. (as someone previously mentioned, maybe the gas station that provided the fuel that morning!), hoping to make one stick. I mean, I understand that anyone can sue anyone, but if you can just write up a list of co-defendants, where does it stop? The company that made the jersey wall? The company that provided the junglegym? NASCAR for moving the wall in the first place?
Mr. Glickel says the lawsuit isn't frivolous, and by legal standards I can see that. But I think it begins approaching frivolous when you start bringing in anyone from whom you think you can make a buck.
If this were to go to trial and I was on the jury, the singlemost contributing factor to the fatalites was a wall that was unprotected and should not have been there in the first place. Even without PSM, even with the particpants not moving over as they were supposed to, even with this track's ridiculous pit out configuration, and even though this guy had no idea how to properly drive his car... if that wall had been moved back to the way it was before the NASCAR race, the way the track was designed, these guys would be alive. Gross negligence on the part of the track... IMO.
Mr. Glickel says the lawsuit isn't frivolous, and by legal standards I can see that. But I think it begins approaching frivolous when you start bringing in anyone from whom you think you can make a buck.
If this were to go to trial and I was on the jury, the singlemost contributing factor to the fatalites was a wall that was unprotected and should not have been there in the first place. Even without PSM, even with the particpants not moving over as they were supposed to, even with this track's ridiculous pit out configuration, and even though this guy had no idea how to properly drive his car... if that wall had been moved back to the way it was before the NASCAR race, the way the track was designed, these guys would be alive. Gross negligence on the part of the track... IMO.
10-25-2007, 07:08 PM
#172
FBB,
Traditionally, race and, more generally, sports particpants are deemed to "assume the risks" of the activity in which they compete and liability would be almost (but never entirely depending upon circumstances) non-existent.
As TD points out, the case we've been discussing in this thread was resolved through a voluntary "settlement", so the Ferrari driver's financial contribution towards the resolution (as was Porsche's) was based mostly (if not exclusively) on just getting out of the claim without incurring additional defense costs. Personally, I don't believe that the driver of the Ferrari did anything that would ultimately be determined "negligent" - but, the case never got to a jury.
I would add that, in my opinion, the CGT case was very defensible. The lawsuit wasn't at all "frivolous" (meaning completely devoid of merit) as certain unusual facts of that particular accident served to make the plaintiff's case "plausible". Which doesn't mean that plaintiff's arguments would have "carried the day" through trial.
Getting back to your main question, it would be nearly impossible for a racer to surmount the legal doctrine of assumption of the risk that would result in a tenable claim against a track or sanctioning body, etc.
Traditionally, race and, more generally, sports particpants are deemed to "assume the risks" of the activity in which they compete and liability would be almost (but never entirely depending upon circumstances) non-existent.
As TD points out, the case we've been discussing in this thread was resolved through a voluntary "settlement", so the Ferrari driver's financial contribution towards the resolution (as was Porsche's) was based mostly (if not exclusively) on just getting out of the claim without incurring additional defense costs. Personally, I don't believe that the driver of the Ferrari did anything that would ultimately be determined "negligent" - but, the case never got to a jury.
I would add that, in my opinion, the CGT case was very defensible. The lawsuit wasn't at all "frivolous" (meaning completely devoid of merit) as certain unusual facts of that particular accident served to make the plaintiff's case "plausible". Which doesn't mean that plaintiff's arguments would have "carried the day" through trial.
Getting back to your main question, it would be nearly impossible for a racer to surmount the legal doctrine of assumption of the risk that would result in a tenable claim against a track or sanctioning body, etc.
In a race, it would be so much harder, but it could be done. For example, imagine if a giant sinkhole opened on the backside of madness at Mid-Ohio just before the beginning of a sprint race. The flaggers all saw it and knew that drivers would die if they hit it, but they didn't call it in to the tower. Race starts, cars come flying over madness and cannot stop in time to avoid the sinkhole. Drivers die. Under those circumstances, the widows of the racers most likely would have a good case in court . . . think in terms of "unusual" and "unexpected" circumstances that are handled in "inexcusable" ways. That's what leads to liability.
I have said it before and I will say it again . . . the best defense against liability is common sense.
10-25-2007, 07:13 PM
#173
Being the "bottom line" guy that I am, I don't see any silver lining in this anywhere. Because of the way any slick attorney can twist the law to say and mean anything they want it to, it has now been proven that when ever ANY of us drives onto a track, if the unthinkable happens, our families can potentially pay a huge penalty.
These 2 guys paid with their lives for someone else's stupid track configuration, and an ensuing bad set of circumstances, and MAYBE some degree of lack of skill on the drivers part. I say maybe because I don't know if anyone could have avoided the Ferreri. They had the option to not get in that car, but with their own free will chose to do so. The fact that the families and Porsche (even if insurance paid) were made to pay is chilling.
These 2 guys paid with their lives for someone else's stupid track configuration, and an ensuing bad set of circumstances, and MAYBE some degree of lack of skill on the drivers part. I say maybe because I don't know if anyone could have avoided the Ferreri. They had the option to not get in that car, but with their own free will chose to do so. The fact that the families and Porsche (even if insurance paid) were made to pay is chilling.
This case involved a very unusual situation and, frankly, some pretty stupid choices on the part of numerous parties. The wreck also involved a driver and a passenger who were both high-worth, or potentially high-worth, individuals. All of this matters. Finally, although 4.5 milliion sounds like a lot, the portion that Porsche and the other parties agreed to pay is NOT keeping any of them up at night. If I were you, I would not read too much into the fact that this particular lawsuit settled.
10-25-2007, 07:18 PM
#174
I think I just realized what's really been bothering me about this lawsuit. I'm just not comfortable with how this grieving widow sued everyone in sight; the CGT driver, the Ferrari driver, the track, the manufacturer, the organizer, etc. (as someone previously mentioned, maybe the gas station that provided the fuel that morning!), hoping to make one stick. I mean, I understand that anyone can sue anyone, but if you can just write up a list of co-defendants, where does it stop? The company that made the jersey wall? The company that provided the junglegym? NASCAR for moving the wall in the first place?
Mr. Glickel says the lawsuit isn't frivolous, and by legal standards I can see that. But I think it begins approaching frivolous when you start bringing in anyone from whom you think you can make a buck.
If this were to go to trial and I was on the jury, the singlemost contributing factor to the fatalites was a wall that was unprotected and should not have been there in the first place. Even without PSM, even with the particpants not moving over as they were supposed to, even with this track's ridiculous pit out configuration, and even though this guy had no idea how to properly drive his car... if that wall had been moved back to the way it was before the NASCAR race, the way the track was designed, these guys would be alive. Gross negligence on the part of the track... IMO.
Mr. Glickel says the lawsuit isn't frivolous, and by legal standards I can see that. But I think it begins approaching frivolous when you start bringing in anyone from whom you think you can make a buck.
If this were to go to trial and I was on the jury, the singlemost contributing factor to the fatalites was a wall that was unprotected and should not have been there in the first place. Even without PSM, even with the particpants not moving over as they were supposed to, even with this track's ridiculous pit out configuration, and even though this guy had no idea how to properly drive his car... if that wall had been moved back to the way it was before the NASCAR race, the way the track was designed, these guys would be alive. Gross negligence on the part of the track... IMO.
One of the reasons why plaintiffs seemingly sue everyone is that discovery takes place after the lawsuit is filed. You might learn after filling that a party you thought was more responsible is actually less responsible, and vice versa, but if you do not sue them, then you might not ever know. These high profile cases make the issue seem worse than it actually is, although it does make me sick to see any suits involving our common hobby.
10-25-2007, 09:14 PM
#175
x2
In a race, it would be so much harder, but it could be done. For example, imagine if a giant sinkhole opened on the backside of madness at Mid-Ohio just before the beginning of a sprint race. The flaggers all saw it and knew that drivers would die if they hit it, but they didn't call it in to the tower. Race starts, cars come flying over madness and cannot stop in time to avoid the sinkhole. Drivers die. Under those circumstances, the widows of the racers most likely would have a good case in court . . . think in terms of "unusual" and "unexpected" circumstances that are handled in "inexcusable" ways. That's what leads to liability.
I have said it before and I will say it again . . . the best defense against liability is common sense.
In a race, it would be so much harder, but it could be done. For example, imagine if a giant sinkhole opened on the backside of madness at Mid-Ohio just before the beginning of a sprint race. The flaggers all saw it and knew that drivers would die if they hit it, but they didn't call it in to the tower. Race starts, cars come flying over madness and cannot stop in time to avoid the sinkhole. Drivers die. Under those circumstances, the widows of the racers most likely would have a good case in court . . . think in terms of "unusual" and "unexpected" circumstances that are handled in "inexcusable" ways. That's what leads to liability.
I have said it before and I will say it again . . . the best defense against liability is common sense.
Seriously though, Todd (and you and I could come with hundreds of silly "what ifs"), but here's something a little closer to reality. How about damage arising through a clear disregard or infraction of prevailing rules? E.g., a sanctioning body (e.g., NASA) has a rule forbidding the use of antifreeze at all events. During a race an E30 Spec car (of course, a Porsche driver would never ignore a safety rule) blows the head gasket and dumps antifreeze (an illegal substance per NASA's rule) creating a slick track surface and before the flaggers can even respond, a car traveling behind the offending Beemer leaves the track surface and wrecks. Keep in mind, it wasn't oil or brake or power steering fluid or something that fell off a car, or even sand or dirt kicked onto the track surface, all of which might cause a slip, it's a prohibited (by rule) substance, which is prohibited because it's extremely slippery (more so than motor oil).
This occurred during a race (or even qualifying) and using antifreeze is not against the law in any state, does the owner of the wrecked car have a sustainable claim against the E30 racer resulting from a clear violation of the sanctioning body's race/safety rule?
10-25-2007, 10:02 PM
#176
Lifetime Rennlist Member
Damn! Why Mid-Ohio? I love Mid-Ohio.
Seriously though, Todd (and you and I could come with hundreds of silly "what ifs"), but here's something a little closer to reality. How about damage arising through a clear disregard or infraction of prevailing rules? E.g., a sanctioning body (e.g., NASA) has a rule forbidding the use of antifreeze at all events. During a race an E30 Spec car (of course, a Porsche driver would never ignore a safety rule) blows the head gasket and dumps antifreeze (an illegal substance per NASA's rule) creating a slick track surface and before the flaggers can even respond, a car traveling behind the offending Beemer leaves the track surface and wrecks. Keep in mind, it wasn't oil or brake or power steering fluid or something that fell off a car, or even sand or dirt kicked onto the track surface, all of which might cause a slip, it's a prohibited (by rule) substance, which is prohibited because it's extremely slippery (more so than motor oil).
This occurred during a race (or even qualifying) and using antifreeze is not against the law in any state, does the owner of the wrecked car have a sustainable claim against the E30 racer resulting from a clear violation of the sanctioning body's race/safety rule?
Seriously though, Todd (and you and I could come with hundreds of silly "what ifs"), but here's something a little closer to reality. How about damage arising through a clear disregard or infraction of prevailing rules? E.g., a sanctioning body (e.g., NASA) has a rule forbidding the use of antifreeze at all events. During a race an E30 Spec car (of course, a Porsche driver would never ignore a safety rule) blows the head gasket and dumps antifreeze (an illegal substance per NASA's rule) creating a slick track surface and before the flaggers can even respond, a car traveling behind the offending Beemer leaves the track surface and wrecks. Keep in mind, it wasn't oil or brake or power steering fluid or something that fell off a car, or even sand or dirt kicked onto the track surface, all of which might cause a slip, it's a prohibited (by rule) substance, which is prohibited because it's extremely slippery (more so than motor oil).
This occurred during a race (or even qualifying) and using antifreeze is not against the law in any state, does the owner of the wrecked car have a sustainable claim against the E30 racer resulting from a clear violation of the sanctioning body's race/safety rule?
On your anti-freeze question, wouldn't you have to show that there was gross negligence to get through the waiver?
10-25-2007, 10:14 PM
#177
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Sustainable case for antifreeze spill.. interesting. The rul,e is in place because coolant leaks are not uncommon. Knowing this, rulemakers decree no antifreeze allowed. Driver spills antifreeze and someone crashes because of it. Is that Gross Negligence? Sunday asks a good question. I think that establishing Gross Negligence would be difficult unless the driver knew that the car leaked and was likely to leak enough fluid to be a hazard during the race.
10-25-2007, 10:43 PM
#178
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Having merely skimmed some of this thread, I thought I'd chime in as "slick" personal injury lawyer with my (according to many on this forum) overwhelming powers of persuasion. The sky is not falling, the end of civilization is not on the horizon, and DE programs will continue. I truly believe our civil justice system, while flawed, separates us from the rest of the world by making our society safer and more humane, while (my libertarian mates) minimizing the need for an intrusive state bureaucracy.
Regarding the more specific issue of waivers or exculpatory agreements: they are often closely scrutinized by the courts (depending on the jurisdiction) and may be held invalid if they violate public policy. To contract in advance to release liability resulting from reckless conduct would be deemed to violate public policy, but it becomes a very fact sensitive analysis.
Regarding the more specific issue of waivers or exculpatory agreements: they are often closely scrutinized by the courts (depending on the jurisdiction) and may be held invalid if they violate public policy. To contract in advance to release liability resulting from reckless conduct would be deemed to violate public policy, but it becomes a very fact sensitive analysis.
10-26-2007, 12:46 AM
#179
Mark & Bob,
If the conduct that caused injury was illegal (a misdemeanor or felony) that's "gross negligence". Using antifreeze (on the street) surely isn't against the law anywhere. But the race organizer's rules prohibit the stuff at their events as a safety measure.
It's a questionable case. In some states filing suit will just be a waste of time. In some others, the claim might at least get to the courthouse.
If the conduct that caused injury was illegal (a misdemeanor or felony) that's "gross negligence". Using antifreeze (on the street) surely isn't against the law anywhere. But the race organizer's rules prohibit the stuff at their events as a safety measure.
It's a questionable case. In some states filing suit will just be a waste of time. In some others, the claim might at least get to the courthouse.
10-26-2007, 10:32 AM
#180
Damn! Why Mid-Ohio? I love Mid-Ohio.
Seriously though, Todd (and you and I could come with hundreds of silly "what ifs"), but here's something a little closer to reality. How about damage arising through a clear disregard or infraction of prevailing rules? E.g., a sanctioning body (e.g., NASA) has a rule forbidding the use of antifreeze at all events. During a race an E30 Spec car (of course, a Porsche driver would never ignore a safety rule) blows the head gasket and dumps antifreeze (an illegal substance per NASA's rule) creating a slick track surface and before the flaggers can even respond, a car traveling behind the offending Beemer leaves the track surface and wrecks. Keep in mind, it wasn't oil or brake or power steering fluid or something that fell off a car, or even sand or dirt kicked onto the track surface, all of which might cause a slip, it's a prohibited (by rule) substance, which is prohibited because it's extremely slippery (more so than motor oil).
This occurred during a race (or even qualifying) and using antifreeze is not against the law in any state, does the owner of the wrecked car have a sustainable claim against the E30 racer resulting from a clear violation of the sanctioning body's race/safety rule?
Seriously though, Todd (and you and I could come with hundreds of silly "what ifs"), but here's something a little closer to reality. How about damage arising through a clear disregard or infraction of prevailing rules? E.g., a sanctioning body (e.g., NASA) has a rule forbidding the use of antifreeze at all events. During a race an E30 Spec car (of course, a Porsche driver would never ignore a safety rule) blows the head gasket and dumps antifreeze (an illegal substance per NASA's rule) creating a slick track surface and before the flaggers can even respond, a car traveling behind the offending Beemer leaves the track surface and wrecks. Keep in mind, it wasn't oil or brake or power steering fluid or something that fell off a car, or even sand or dirt kicked onto the track surface, all of which might cause a slip, it's a prohibited (by rule) substance, which is prohibited because it's extremely slippery (more so than motor oil).
This occurred during a race (or even qualifying) and using antifreeze is not against the law in any state, does the owner of the wrecked car have a sustainable claim against the E30 racer resulting from a clear violation of the sanctioning body's race/safety rule?
Sustainable case for antifreeze spill.. interesting. The rul,e is in place because coolant leaks are not uncommon. Knowing this, rulemakers decree no antifreeze allowed. Driver spills antifreeze and someone crashes because of it. Is that Gross Negligence? Sunday asks a good question. I think that establishing Gross Negligence would be difficult unless the driver knew that the car leaked and was likely to leak enough fluid to be a hazard during the race.
Mark & Bob,
If the conduct that caused injury was illegal (a misdemeanor or felony) that's "gross negligence". Using antifreeze (on the street) surely isn't against the law anywhere. But the race organizer's rules prohibit the stuff at their events as a safety measure.
It's a questionable case. In some states filing suit will just be a waste of time. In some others, the claim might at least get to the courthouse.
If the conduct that caused injury was illegal (a misdemeanor or felony) that's "gross negligence". Using antifreeze (on the street) surely isn't against the law anywhere. But the race organizer's rules prohibit the stuff at their events as a safety measure.
It's a questionable case. In some states filing suit will just be a waste of time. In some others, the claim might at least get to the courthouse.
In the end, I really do not think this settlement changed much. If you were worried before, you are probably still worried. If you were not worried before, no particular reason to start worrying now . . .