Will Greg Moore's final legacy to racing
be more than one of "spirit"?

 by Mark Cipolloni
November 19, 2000

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Disclaimer...The sole intent of this article is to raise some of the legal issues involved in the Greg Moore and Gonzolo Rodriguez cases and the law involving "Negligence" and "Assumption of the Risk". It is not intended to either (1) assess legal liability; or (2) make factual judgments about the nature of these cases.  Nor is this article a "legal opinion or legal brief" on the areas of law discussed above. That is left to the attorneys, jury and the courts to decide.

There has been immense speculation about what the lawsuits, brought by the Greg Moore and Gonzolo Rodriguez families as a result of their unfortunate deaths in 1999, will mean to the racing industry.  We thought it would be prudent to help everyone understand what legal issues may be presented and, therefore, minimize speculation and misinformation.

The action will be brought for "Negligence", since both deaths were not the result of any "Intentional Act".   The first element in negligence is to establish the "DUTY" to protect "others from "Unreasonable Risks" of harm. Obviously track owners have a "Duty" to protect drivers and fans from "Unreasonable Risks". The question is what is "unreasonable"? 

To determine what is reasonable or unreasonable the generally used criteria is the "Reasonable Man Test".  What would a reasonable man do under the same or similar circumstances? However, here, there are slightly different circumstances in that you have other standards of conduct that must be considered.  Either you would apply "Industry Standards", or "Professional Standards' (i.e., doctors are held to a different standard than non doctors).   Professionals are held to a higher standard because they have "Special" or "Superior" knowledge.  Therefore, in this case it is likely that industry standards will be used to determine reasonableness.

In the case of Moore and Rodriguez, we do have a "Race Track Industry".   However, one must remember that the standards by which these sort of cases are measured change, as does anything, with "experience" and "technology".  In 1950 auto racing safety was much different than today.  The modern speedways of today hardly resemble the race tracks of the 1950's.

There are really two questions to consider here.  1) Do tracks have to continually upgrade their facilities every year to higher safety standards? and;  2) Whose responsibility is it to define and impose those standards, the race track or the sanctioning body?

One of the main issues here is the question of "Foreseeability".  Could CART, NASCAR or any track owner "reasonably foresee" that a car will fly off the ground and go into the grandstand"?  Yes, that's why they put up high debris fences.  Was it foreseeable that Tony Kanaan would blow his engine and cause Michael Andretti to hit the wall in Fontana?  Yes, but that is considered a "REASONABLE RISK", that everyone could reasonable "FORESEE".  Could they "FORESEE" that a car might spin coming out of turn two, and slide backwards across the grass, and run headlong into a unprotected concrete barrier"?  The barrier certainly did its job in protecting spectators.  Something is foreseeable when the party either "KNEW" or "SHOULD HAVE KNOWN" that an incident was reasonably likely to occur.   For example, leaving oil from a blown engine in the middle of the groove on the turn would likely cause a car to spin and lose control; or having no debris fence in front of spectator grandstands is inherently dangerous to spectators, or not having fire extinguishers readily available in the pit area, are all examples of "foreseeable" situations.  The families filing the lawsuits apparently think that in both cases death or serious injury could have been avoided.  It can only be assumed that they believe that Industry standards would have demanded additional infield paving and the placement of a "soft wall" in front of the concrete wall that Moore hit. One can use a similar analogy at Laguna Seca with Gonzolo.  Could they foresee the danger at the corkscrew?

After a series of serious accidents at both Daytona and Talladega, wherein stock cars sliding through grassy areas of the infield (Turn 4 at Daytona and Turn 1 at Talladega), those areas were paved, thereby allowing cars/drivers to scrub off more speed and help reduce the chance of a car turning over, and to help reduce the extent of the impending impact with the safety barriers (walls).  Had they not done the paving, it certainly would have been "foreseeable" that subsequent accidents of the same or similar nature would have been likely to occur again.  Because of previous actions at Daytona and Talladega, was it "FORESEEABLE" at Fontana that such a similar occurrence was "likely"?  . The plaintiff attorney's in these cases will likely ask, "was it "Reasonably Foreseeable" that a Greg Moore or Gonzolo Rodriguez type of accident was possible?

The defense will likely counter with the argument that auto racing is an "ultra hazardous activity" and there is an "ASSUMPTION OF RISK" by the drivers. That means that race drivers understand that racing is inherently dangerous.  Does that mean that they accept every single risk because they are race drivers and track operators only have limited responsibilities and legal obligations to protect them from risks?  It could be argued that Greg Moore raced at Fontana the two previous years, as did all the drivers, yet did they ever complain about the unprotected wall he hit or the fact that the infield was unpaved and uneven?  One can argue that a lot of race track infields are uneven and unpaved.

We would be remise if we didn't discuss the "Waiver" that every driver (and related personnel who make a race happen) must sign.  This basically states that you understand you are participating in a dangerous activity and, therefore, you waive your right to sue.  Some have speculated that these cases will never get passed the waiver clause that Moore and Rodriguez signed.  The law in this area is not entirely certain.  For example, in some courts there is no waiver for "gross negligence". Establishing gross negligence in this case would be nearly impossible because you would need to establish deliberate and reckless conduct by the defendants.

The unfortunate aspect may be the defense of "Contributory Negligence."  Was Greg Moore driving over his head that day at Fontana (or Gonzolo Rodriguez at Laguna Seca) which contributed to him losing control of his car and hence crashing?  We're certain the defense will subpoena the in-car telemetry data that detailed Moore's steering and throttle movements in the moments before the accident.  Moore was passing a lot of cars that day.  Was he over the 'edge'?  We can't answer that, but one can assume that argument may be raised if the matter went to trial.

We assume Greg Moore relied on the fact that CART certified the "reasonable" safety of the track.  What does that mean? Well, that the pavement was in good condition, if there was an accident the oil and debris would be collected, etc.  Consider however, if someone blew an engine, he could spin and go into the wall causing injury.  He also understood that if a wheel came off a car it could hit him in the head with deadly consequences.  Maybe those are "reasonable risks" assuming that someone didn't negligently let the wheel come off the car, and even then that might be reasonable in a race. Did he knowingly assume the risk that he could go spinning backwards, slide across the grass, hit an access road, upsetting the car and go crashing into an (unprotected) barrier?   Or, did CART and the California Speedway, breach their "Duty" to protect Moore from unreasonable risks by not having the grassy area paved and not using soft-wall technology. We believe THAT WILL BE THE QUESTION before the court! 

Notwithstanding the above discussion, we expect that these cases will be settled out of court and never go to trial because the insurers, sanctioning bodies, and track operators do not want to have any legal precedents set in cases such as this.  Perhaps settlements in both cases will be to the Greg Moore and Gonzolo Rodriguez foundations respectively.  There is one thing you can be sure of, henceforth, safety in racing is about to be given a much higher level of attention.  The title of Greg Moore's biography "Legacy of Spirit" may be ironic in that his final legacy to racing may be more than one of 'spirit', but instead one of heightened safety awareness.

Special thanks to Steven N. Levinson for his major contribution to this article.

The author can be contacted at markc@autoracing1.com

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