I'll take the passenger seat out and ziptie you to the rollcage. You'll be fine.

 

I think I pulled a muscle going for that brake pedal that didn't exist.

 

Don't have time to go back and read all the posts here, (got through the first 5 1/2 pages earlier today). I'm not the only lawyer here, but I'll offer a couple of observations from the perspective of 33 years of civil trial practice.

I'm not surprised that this suit was settled, upwards of 95% of all suits never proceed to trial. The amount of the settlement is not at all exorbitant considering the nature of the action. Wrongful death claims are evaluated on the basis of pecuinary loss to the deceased's survivors. It's pretty much a dollars and cents formula, taking into account the mortality table (viz., life expectancy) and the number of persons dependent upon the deceased's wage earning capability, their respective ages, etc. Assuming the deceased was in the "prime" of his life and at the peak of his earnings capacity and was supporting a relatively young family (wife and school aged child or children) all dependent upon his support, it's not at all a crazy amount of money. In fact, the settlement is reflective of the decidedly uncertain liability aspects of the case.

From the facts presented, driver error was the primary contributing factor in the happening of this tragic occurrence. And, more than track design or configuration, the sponsoring club's lapse of diligence - shall we say - was the next most substantial cause of the passenger's (and driver's) unfortunate and untimely deaths. The remaining settlement contributions are basically (1) less than the cost of defending the case through verdict and appeal, etc., in Porsche's case; and (2) "nuisance value" in the case of the Ferrari's driver (way less than the cost of continued defense of the lawsuit through verdict).

This case will not prove the death knell for high performance driving or amateur racing. It may serve to have some facilities take a hard look at their tracks with a view towards making the venue safer. To be sure, neither will it be the last case to call into question the safety of tracks that invite amateur participation.

I don't know that any of the tracks that I've driven here in the east actually employ "state-of-the-art" safety design, either in their physical layouts or in minimizing the severity of the consequences of car-into-barrier (or off-track) impacts. Most don't. To date, VIR is probably the safest (and I'd guess the newest) track I've been on. A legal principle of long standing recognizes that if one elects to drive a car on a track at great speed, the inherently dangerous nature of that activity is readily apparent to the participant and one is, therefore, deemed to have "assumed the risk" of such activity and the potential (dangerous) consequences that attach thereto.

On the other hand, everyone here knows that sensibility (good sense) is not incorporated into a large bank account. So there are, and will continue to be, numerous individuals acquiring expensive toys the capabilities of which far exceed the talents of said individuals.

Now, if we all realize this - and it's nothing new - shouldn't track owners/operators (and especially those building a new facility) be equally aware of this circumstance? Notwithstanding the increasing costs of fuel and track rental time, the near impossibility of insuring against track-related loss and the associated dangers of the "hobby", the popularity of high-performance driving hasn't diminshed at all (though we may see some decline in the next decade as the "boomers" age and begin withdrawing from on-track driving).

If the technology exists, and it does, is it "negligent" for a facitilty that invites the business of amateurs (even "skilled" amateurs) to fail to employ the latest and best technology available for the protection of their customers, many of whom they know can easily be in "over their heads" in a heartbeat? Signed waivers are not meaningless and are enforceable in most states (they are in New York too, although there is an erroneous comment to the contrary in the article reporting on the settlement). But, an exception to the waiver's validity exists in instances of gross negligence. Defined simply, "gross negligence" arises from a wanton disregard for the safety of others and in some cases is equivalent to intentional conduct. Thus, a manufacturer's "business decision" to opt against a recall of vehicles with gas tanks susceptible of exploding in a rearend collision, versus the cost of a relatively small number of expensive lawsuits, constitutes gross negligence (and, some might add, criminal negligence).

Don't throw away your helmets just yet. But do expect track and event entrance fees to increase as track owners pass along the costs of updating their facilities to employ (hopefully) better safety designs and energy absorbing materials, more safety personnel, etc.

There are other aspects for potential liability at amateur high performance driving events that we could discuss and debate ad nauseum, but this post is too damn long already and I apologize for that.

 

A skilled trial lawyer can make a case out of anything. All you need is a bad outcome. Unfortunately, I don't see any way to avoid a lawsuit in these types of events if you have a willing plantiff and a motivated lawyer. The best you can hope for is to reduce the liability exposure for gross negligence by adopting established safety guidlines and adhering to them.
Pit out onto a hot track is often a tricky procedure even for experienced drivers. We have all seen situations where someone is merging out of the pits while someone else is going by at full tilt, or maybe even passing which can set up the three wide scenario. That can get dicey. One thing that should be considered is simply not allowing hot pit out at all in the lower run groups. That is, if you come in to the pits, you are done for the session. At the beginning of the session, all cars leave the grid and the track stays yellow until the grid is clear. Pit exit is then closed for the session. That would solve the traffic merge issue. I also don't think passengers should be allowed on track unless an instructor is in the car. The bigger problem for DE's is going to be safety issues with the cars. At what point does driving without a full harness, race seat, head restrant, and a cage become a serious safety issue ? Is it grossly negligent to allow a novice to drive a street car on the track at 150 mph without this equipment ? If I was a track owner, or an organizer, I might be asking myself those questions.

 

Richard: with all due respect, BALONEY

when you combine a lack of personal reponsibility with bad outcomes and deep pockets or unprotected assets you get BIG checks

jack

 

For those that think this is a windfall its not. I deal in similar type of cases and I can assure you Porsche's contribution of 360K is basically a cost of defense. That tells me the plaintiff's attorney didn't have the case he thought against Porsche for design defect, despite some of the commentary that has been posted. Porsche vigorously defends its products.

There are many reasons parties settle lawsuits. The major reason is that its not their money, its the insurance carrier who makes the business decision because it's in the risk business and knows better than its insureds when its prudent to pay.

The sad fact is that even though track days are fun, they can be deadly. Looking back over twenty years of DE and club racing, I've had a few lucky calls that could of gone the other way.

Jimmy

 

Where was the "lack of personal responsibility" on the wife? She wasn't in the car. She has a dead husband, who was likely the primary breadwinner, and he was in his peak earning years. She probably never considered the possibility that her husband may not come home at all from this track event. Or, if she did, it was with the same idea that somebody might not come home at all if they drive on the freeway.

Let's consider that the driver was told that his car was dangerous, he spun multiple times, and then was probably trying to show off the car to a potential buyer. Hmm... sounds like potential negligence...

Let's consider that the track intentionally moved a wall into an area that they had to know would be dangerous and then provided no protection. Hmm... sounds like potential negligence...

Let's consider that had Porsche put PSM on the car, it would have almost definitely saved these people's lives. Yes, the car would have still spun, but at 130MPH, a car moves 200 feet per second. If the spun could have been delayed by one tenth of a second, the fatal crash would have been avoided (and likely replaced by a crash further down on the wall). Hmm... sounds like potential negligence...

And the poor Ferarri driver. Yes, he was in the wrong place at the wrong time, but one of the things that I always teach my students is to not trust the pit-out steward and instead check their own mirrors. Obviously, this was not done. Hmm... sounds like potential negligence...

Now, I'm also a big believer of personal responsibility, but if my wife was horribly maimed while riding with an instructor, and my insurance company decided to go after people, what would be my options at that point? Tell her to suck it up and pull the plug?

 

Bravo! That's another one of my gripes (in a long list of many). Who is really being punished with this settlement? The driver? Nope, he's dead. Instead his wife and kids who had absolutely nothing to do with the accident are the ones punished...

 

There is potential negligence in almost everything we do. Gross negligence is something else entirely. Do you think that a guy looking to sell his car to someone upwards of a quarter mil is going to try to kill him? Do you think that a guy looking to sell a car for over a quarter mil wants a to provide favorable demonstration? The track is the only legal place to demonstrate the car. Demonstrating high speeds on public roads would have been true negligence, but not to the passenger because that is what the passenger expects. It would have negligent toward the public. Taking the car for a "demo" spin at the track rather than public roads is showing less negligence than would otherwise be expected.

We are looking at an unfortunate accident. Waivers or no waivers, people know that cars can get out of control, crash, and kill people at the race track. They know this. It should take some pretty perverse behavior for something to really constitute gross negligence at a dangerous venue.

Please no offense to the harmed. Any increases in fees for participation are sticking it to the less affluent, making motorsports any even more elitist sport than it already is. I am glad that the settlement was not in the tens of millions, or my days are numbered.

 

In the spirit of learning and trying to understand how this might impact all of us that participate in DE environments... There's been lots of talk about the cost of this to the various interests -- the track, the drivers, the organizers, etc. To some, the award may sound high, and to others (me included), very low. Now add in there that of all of the parties, probably none of them are out of pocket in this settlement. This may have been all about the insurance companies figuring out who is going to pay what. Perhaps Porsche was the only party that actually wrote a check for their part of the settlement, but that was a low number and probably came from the "legal defense account".

Then one might wonder how this will impact insurance availability and rates for such events in the future. I suppose we have to ask how often something of this magnitude happens? We all know about the spin that results in $10-50k in damage to a car at a DE, and they've been happening for year after year. But DEs still exist and insurance is still inexpensive.

My guess is that the net result of this will be more attention to safety (good) at DE in the future, perhaps the insurance companies will mandate some positive changes (ie: to the event organizers to insure better safety), that tracks will be more conscious of what is happening at their facilities, and that drivers will be a little more cautious as they will remember this tragedy for many years to come (talk about it, read about it here on the web, etc.). With hope, this accident will create a safer environment for us all such that there will never be another fatality at a Drivers Education.

 

Interesting, Brian, but your defending the position of the wife of the passenger only. How about the wife and kids of the driver? Should she sue her dead husband? Where's her lawsuit against Porsche, the track, the Ferrari driver, the flag workers, etc.? With your argument, shouldn't she be suing them, too?

In this country I'm surprised they didn't sue NASCAR (the really deep pockets). Weren't they the reason the barrier was moved? So kids could play on that playground during a NASCAR race?

 

I have wondered all along about the accuracy of the remainder of the report. I don't know it to be inaccurate elsewhere, but I wonder.

 

I'm sitting here wondering why someone else should pay if the wife didn't have their affairs in order and a contingency plan in place (life insurance maybe?) for if/when her husband did accidentally hit the dirt...

That's personal responsibility. Who does she sue if he's walking out of the house going to work, trips and kills himself????

This country was going along fine and well until someone came up with the phrase "**** Happens" and then a bunch of beaurocrats decided, well we can't have "**** Happening" and people being hung out to dry so we've got to make people pay! (sounds like this whole Adjustable Rate Mortgage fiasco doesn't it)

I just don't get it... Maybe that's why don't have much, because I haven't sued enough people to get what I need...

 

What are you talking about???
From the look of the accident I can't imagine that a few mph or even 20mph would have made a difference. If the wall had been as it was originally, the likelihood of survival would have been much greater.

 

Richard G, thanks for your post. It puts things in perspectve.

While we are all focused on the settlement, I wonder if there isn't another action either under way, or perhaps in preparation.

It seems to me that there is another injured party here. Ben's wife and family. While I agree that in the final analysis, the principal cause was driver error, the outcome was aggravated by the track layout, barrier placement etc.

It is posssible to imagine that without the other contributing factors, the outcome would not have been fatal. In short, does Ben's widow have a case?