Could Daytona crash change law?
YEP, RACING'S DANGEROUS: Kyle Larson (32, Chevrolet), Justin Allgaier (31, Chevrolet), Brian Scott (2, Chevrolet) and Brad Keselowski (22, Dodge) collide at the end of the Nascar race at Daytona Speedway on February 23, 2013. Image: AFP
Author: Casey Sullivan
DAYTONA, Florida - The 30 or so spectators injured by flying wreckage after a crash during a Nascar race here on Saturday (Feb 23 2013) face a significant obstacle if they want to sue the Daytona Speedway, its owner and/or Nascar.
The small print on their tickets.
Lawyers say that if litigation arose then the National Association for Stock Car Auto Racing), Daytona Speedway and owner International Speedway Corporation would likely point to the disclaimers printed on auto-racing tickets that warn buyers of the dangers and thereby avoid personal injury liability.
Daytona International Speedway, International Speedway Corporation and Nascar did not respond to requests for comment.
About 30 spectators were injured when car bits and at least one tyre went through and over the catch fence meant to protect spectators, of which two originally listed as critical on Saturday were described as in stable condition on Sunday. Others were either recovering in hospital or sent home after treatment.
The disclaimer on a Daytona ticket says: <i>"The holder of this ticket expressly assumes all risk incident to the event, whether occurring prior to, during or subsequent to the actual event, and agrees that all participants, sanctioning bodies, and all employees, agents, officers, and directors of Daytona International Speedway, its affiliates and subsidiaries, are hereby released from any and all claims arising from the event, including claims of negligence."</i>
Lawyers said it had become common for sports businesses to put the disclaimers on the back of ticket stubs for admission to a variety of venues, among them ski resorts, hockey arenas and baseball fields.
Lee Kaplan, a trial lawyer who has defended Chrysler Group and Toyota Motor Corporation in product liability cases, felt the language in the Daytona disclaimer should be enough to cover claims arising from the Daytona crash. He said spectators understood the risk they were taking by buying a Daytona ticket.
"They are held to the knowledge that racing is inherently dangerous and spectators can be injured," he said, noting that the word "risk" in the disclaimer captured that sentiment.
ONLY 'NORMAL RISK' COVER
However Dan Kirschner, a Chicago personal injury lawyer, pointed out that such a disclaimer might have no value if, for instance, knowingly failed to provide sufficient protection and appropriate seating. If it could be proved that Daytona <i>knew</i> fans were in harm's way and didn't act to reduce the threat then potential injury claims were more likely to supersede any so-called "buyer beware" ticket disclaimer.
Oakland-based attorney Bob Eassa, who has defended the Oakland Raiders in a variety of personal injury lawsuits by National Football League players, said the disclaimer only covered "normal risk" and that the notice could not remove claims of negligence if the company were proven to have acted inappropriately.
"You're attacking the fact that they didn't do it right," Eassa said.
By Monday morning there were no reports of lawsuits being filed over the crash.
Saturday's wreck happened after driver Regan Smith, who was leading the race, tried to block another driver as they were nearing the chequered flag on the final lap and hit the other car, a report on nascar.com said. This led to a pile-up that sent driver Kyle Larson's car airborne and ripped out its engine, sending the debris into the crowd. He was not hurt.
UP FRONT PAYOUTS
Nascar has required tracks to have $50-million in insurance to cover spectators' injuries, money that would be used to cover lawsuits against it, according to SEC filings.
International Speedway Corp has rarely defended itself in public lawsuits against NASCAR fans over personal injury claims arising from accidents at its racetracks. Justin Reiff, an expert in amusement park litigation, said large companies usually offered to settle out of court to avoid bad publicity.
Wheels24 would point out that racetracks usually have warning signs displayed but also that the disclaimer on the ticket is only visible to the buyer once the ticket has been paid for.