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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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