Editorial

Has the Gonzalo Rodriguez lawsuit turned in CART's favor?

 by Mark Cipolloni
November 21, 2001

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Gonzalo Rodriguez's car came to rest upside down outside the Corkscrew.  Rodriguez was killed instantly from a Basilar Skull fracture.  The HANS Device was not yet used in racing at the time

Disclaimer...The sole intent of this article is to raise some of the legal issues involved in the Gonzolo Rodriguez case 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.

When I first heard about the judge's decision in the Gonzalo Rodriguez vs. CART and SCRAMP lawsuit it appeared the judge had ruled in the plaintiff's (Rodriguez) favor because he did not grant CART the full dismissal of the lawsuit that CART was seeking.  However, that was before I obtained a full copy of Judge Richard M. Silver's (Judge of the Monterey, CA. Superior Court) ruling handed down on November 5, 2001.  After reading the ruling, one gets a completely different perspective on what it all means.

Key excerpts from 2000 Article

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.

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.

A year ago on November 19, 2000 I wrote an article that laid out how I expected this case to be looked upon (key excerpts to the right).  As it turns out, I was pretty much on the mark (no pun intended).  The action brought against CART and SCRAMP (the Laguna Seca race organizer) by the Rodriguez family was for the wrongful death of Gonzalo Rodriguez caused because they were both negligent and "willful and reckless" concerning the safety measures taken at Turn 8 (the Corkscrew at Laguna Seca).

In essence what this says is that there were two causes of action in this case: 1) simple negligence, and 2) intentional and/or reckless conduct, i.e. gross negligence, a much more serious charge.

As we predicted a year ago, the defense would 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.  We also predicted CART's attorney's would point to 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. 

CART and SCRAMP moved for a summery judgment (essentially a dismissal of the case) asserting that the undisputed facts show they were not negligent and/or "willful and reckless" and, even if so, the release (waiver) that Gonzalo signed releases them from legal responsibility.

The judge ruled in favor of CART and SCRAMP on the first one.  He cited several prior cases (Allabach v. Santa Clara County Fair Assn. 1996 and Celli v. Sport Car Club of America Inc. 1972, among others) in which the 'release' or waiver was a subject of argument.  As the Allabach case ruling cited, "Racing is an inherently dangerous sport with the risk of significant injury or death.  Without such releases there would be no such racing."

The Rodriguez attorney's tried to argue that because Rodriguez was from Uruguay, he spoke English as a second language and, therefore, did not fully understand what he was signing.  The judge dismissed that argument because the facts showed it was without a doubt Gonzalo's signature, and if he did not understand what he was signing, he should have asked for an interpreter to tell him what it said.  In other words, it's your responsibility to understand everything in life you put your signature on, and if you don't, you should wait until you do before signing your rights away.

On the second charge, the judge ruled that the 'release' or waiver was not valid, i.e. he ruled against CART's request to dismiss the claim.  In California, as in most all states, you can't waive 'gross' negligence with a standard release form.

Gross negligence is held at a much higher level than simple negligence.  To put it in layman's terms, if numerous drivers had been hurt or killed at the corkscrew at Laguna Seca Raceway (now Mazda Raceway) and they did nothing to fix the problem, then one can claim they were grossly negligent, i.e. they willfully carried on with out making improvements knowing there was a problem.  See sidebar section on the question of "Foreseeability"

The Rodriguez side hired Dr. Antonio Ferrari to present arguments as to why CART and SCRAMP were grossly negligent.  After hearing all the testimony, and backup data/arguments, the judge writes "Although the declaration and evidence presented by Dr. Ferrari is questionable, it is sufficient to raise a triable issue of material fact.  He says he specifically told the defendants that Turn 8 was dangerous and posed "grave risks" prior to the accident.  The Defendants have presented evidence that seriously questions these statements.  Nonetheless it is a factual 'dispute' that can not be resolved by summary judgment."  In other words there is enough doubt to argue the case in a trial.

Realizing that I am an Engineer and not an attorney, here is how I see this case proceeding based on what little knowledge I have of law.  Establishing gross negligence in this case will be nearly impossible because you would need to establish deliberate and reckless conduct by the defendants.  Those are very serious charges, and must be proved with a preponderance of evidence, since this is a civil case (Beyond a reasonable doubt if it were a criminal case).

Proving deliberate and reckless conduct would be easy if drivers had died at Turn 8 before (I am not aware that any ever had), or maybe even if there were absolutely no bundled tires in front of the concrete wall, which there were.  True, the tires may not have been as good a 'soft' wall as is currently available, but because no one was ever killed there before, was the very best required?

We assume the Rodriguez side will argue that CART and SCRAMP should have foreseen the potential of a serious accident and been proactive about it.  We assume Gonzalo Rodriguez 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 might go head on into a concrete wall if his brakes failed approaching a turn, his throttle stuck or his foot accidentally got stuck between the brake and accelerator thereby depressing the accelerator?   Or, did CART and SCRAMP, breach their "Duty" to protect Rodriguez from unreasonable risks by not having a better soft wall in front of the concrete wall when they were aware better ones might be available. We believe THAT WILL BE THE QUESTION before the court!

Working in the Plaintiff's favor is the fact that the IPS barrier (manufactured and sold by none other than Dr. Ferrari) is the only barrier to date that has been certified by the FIA to meet their standards for a soft wall.  Dr. Ferrari claims he made CART and SCRAMP aware of this fact and they ignored him.  CART might argue Dr. Ferrari has a conflict of interest because he stands to gain from the sale of his barrier (though if it works damn it, all tracks should use it).

Working in CART's favor is that bundled tires have been the defacto standard soft wall used for years on race tracks.  They will argue that they were not grossly negligent because they were using what all tracks have been using for years, and the FIA never outlawed them, or the FIA never put out a bulletin stating bundled tires were not safe or were ineffective.

Now do you start to see the 'doubt' that will be raised in the jury's minds?  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. I do not believe that Kirk Russell (formerly with CART) who blessed the track as ready to race, was a licensed Professional Engineer in the State of California. There are no laws that say a licensed Professional Engineer must approve race track safety, though being a Licensed Professional Engineer myself, I certainly could argue why there should be. Therefore, in this case it is likely that industry standards will be used to determine reasonableness.  CART will argue that tire barriers are the industry standard.  The Rodriguez side will argue that the IPS barrier is now the industry standard because it is the only barrier that is certified (today) to meet the FIA standards.

I would be remiss if I did not also mention the HANS Device, which may have saved Rodriguez given he died of a Basilar Skull Fracture when his car violently flipped backend over nose when he hit the wall head on after going through the thin wall of tires.  This rotation elongated Gonzalo's neck as his head accelerated away from his body, thereby snapping the base of his skull.  Death was instant, as it always is in this sort of injury.  This same injury killed Dale Earnhardt, Adam Petty, Kenny Irwin and most recently, Blaise Alexander to name but a few.  

However, the HANS Device was not an industry standard then, as it is today.  Therefore, one can't claim CART was negligent by not mandating the HANS Device in 1999.  To CART's credit, it was the Rodriguez accident that heightened their awareness of this sort of injury, and they were the world's first racing sanctioning body to subsequently mandate its use after that.  In other words, they took corrective action when a known solution was available, which is more than can be said of the IRL which has yet to mandate the HANS, and NASCAR which only recently did.  We suspect that if a driver were killed today in an IRL car from a Basilar Skull Fracture, the IRL could be sued for gross negligence and likely lose the case.  In that case the plaintiff would argue that there have been numerous deaths from Basilar Skull Fractures, the possibility of it happening again was foreseeable, and the IRL willfully and recklessly ignored a known safety device made specifically for that sort of injury.

Notwithstanding the above discussion, we expect that this case will be settled out of court and never go to trial because the insurers, sanctioning body (CART), and track operators do not want to have any legal precedents set in cases such as this.  We also think the Rodriguez family will try to settle out of court because they stand a 'reasonable' risk of losing the case and, if they do, get nothing plus have to also pay CART's and SCRAMP's legal fees and the court costs.

The author can be contacted at markc@autoracing1.com

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