Topic: Interesting track waiver ruling.

There was an interesting ruling in the Ward v Stewart lawsuit today.  The judge ruled that the racing event was "recreation" under NY law and therefore the track waiver both signed was invalid.  If those waivers go away, our little sport may be in trouble.

http://www.espn.com/espn/now?nowId=1-21750555

1990 RX7 "Mazdarita"  1964 Sunbeam Imp (IOE 2013 Sears Pointless) 2002 Jaguar x-type (Winner C-Class 2021 Sears Pointless)
Gone bye-bye
1994 Jaguar XJ12 (Winner C-Class 2013 Sears Pointless)  1980 Rover SD1 (I Got Screwed 2014 Return of Lemonites)

Re: Interesting track waiver ruling.

Ward got out of his car and stormed onto the ACTIVE. RACE. TRACK. Everyone who has had even 5 minutes of training knows not to get out of the f'ing car, unless it's on fire. And no, drivers are not accustomed to having "pedestrians" on the track. We're "prepared" for emergency crews to be on track in very limited situations, and they're covered by numerous vehicles with lights. And there's usually a local or full-track yellow for a lap or two before they get out there. If someone needs to get to a car immediately, red flags come out - everybody stops as quickly as safety permits.

I was impressed by the professionalism of the Road Atlanta crews. Tow in front, pickup in back. There's always a vehicle between traffic and any person outside a vehicle, or vehicle in tow. And they ran yellows TWO stations ahead of any issue. (that one was a bit annoying as I'm looking for trouble the instant I see yellow, but the off could be 1000 feet away -- around a corner and over a hill, so you did need to slow down as you won't be able to actually see it before you're on top of it.)

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Re: Interesting track waiver ruling.

jfbeam wrote:

I was impressed by the professionalism of the Road Atlanta crews. Tow in front, pickup in back. There's always a vehicle between traffic and any person outside a vehicle, or vehicle in tow. And they ran yellows TWO stations ahead of any issue. (that one was a bit annoying as I'm looking for trouble the instant I see yellow, but the off could be 1000 feet away -- around a corner and over a hill, so you did need to slow down as you won't be able to actually see it before you're on top of it.)


Agree with all of the above 100%.  IMO, the Road Atlanta crew was top-notch and set the bar high. This is how flagging should be done.

Captain
Team Super Westerfield Bros.
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Re: Interesting track waiver ruling.

jfbeam wrote:

Ward got out of his car and stormed onto the ACTIVE. RACE. TRACK. Everyone who has had even 5 minutes of training knows not to get out of the f'ing car, unless it's on fire. And no, drivers are not accustomed to having "pedestrians" on the track. We're "prepared" for emergency crews to be on track in very limited situations, and they're covered by numerous vehicles with lights. And there's usually a local or full-track yellow for a lap or two before they get out there. If someone needs to get to a car immediately, red flags come out - everybody stops as quickly as safety permits.

That part of it doesn't even come into play at this point in their suit.  What the judge ruled on was that because it was a recreational event the waiver they signed at the gate was invalid.  Why is that important?  Because if this ruling stays, we can now sue each other, the track and the organizer for most anything.  You could now sue that wonderful RA track crew for damaging your car while towing it.  You can sue Jay for allowing those a-holes in that BMW who hit everyone for hitting you.  That's the problem with what the judge just did.

1990 RX7 "Mazdarita"  1964 Sunbeam Imp (IOE 2013 Sears Pointless) 2002 Jaguar x-type (Winner C-Class 2021 Sears Pointless)
Gone bye-bye
1994 Jaguar XJ12 (Winner C-Class 2013 Sears Pointless)  1980 Rover SD1 (I Got Screwed 2014 Return of Lemonites)

Re: Interesting track waiver ruling.

cheseroo wrote:

You can sue Jay for allowing those Flaming a-holes in that BMW who hit everyone for hitting you.  That's the problem with what the judge just did.

FTFY

Re: Interesting track waiver ruling.

As I understand it... for the moment, the Federal judge's ruling only becomes formal precedent if the 2nd Circuit Federal Appeals court re-affirms it. And then it's only formal precedent within the 2nd Circuit (NY, Vermont, Connecticut). And maybe only for NY, depending on how their waiver laws compare to other state's. If the Supremes rule on something, then it is everyone's formal precedent.

I am not a lawyer, real lawyers please weigh in regarding my correctitude.

25X Loser - Delinquent Racing - '86 Rust-Tite Merkur - 9 years (when do I get to stop?).

Re: Interesting track waiver ruling.

Of course the precident doesn't just effect Racing.  Think of all the hobbies out there that you sign waivers for.  You like rock climbing and fall while doing it sue the place you fell at. You play any recreational sport, sue everyone any time you get a minor injury.  It could make every recreational activity essentially go away because any injury could bankrupt them.

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Re: Interesting track waiver ruling.

Not a lawyer. But I think this will either get overturned, or there will be some silly, but binding, workarounds.

Can see the argument that it is NOT recreational if prize money is at stake. It is pro racing, in that case. Looks like the nickels at stake cover that eventuality. I'm aware there was probably prize money at stake in the Stewart case; that is not my point. Basically, I am saying this: whatever maneuvering the NFL will use to get out of players suing EACH OTHER for concussions, is the pattern to follow. Can anyone argue that the NFL is "recreation" ? I don't think so.

Agreed that the case precedent is binding, IN THAT JURISDICTION. Not everywhere. Let NY lose the economic impact of pretty much anything recreational. The ruling will get overturned pretty quick.

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Re: Interesting track waiver ruling.

I wonder if it may be something wrong in that specific waiver that is opening it up for this.  If it is caused by that waiver it would seem easy to fix by changing that on future waivers.

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Re: Interesting track waiver ruling.

You always could sue even under waiver. The waver is a means of you "being informed" and it does protect from small damage. But no sign at the door waiver protects against malpractice, wrongful death etc....

You are obviously risking your car, your free time, and your money going to a race. And tripping over a power cord, or falling down perfectly in order steps isn't going to be a payday. The Waiver makes that explicit and shows proof that you know it. But, something real happens waivers are not magic lawsuit armor. If the fire truck shoots confetti and not water you bet you can sue. If a poorly maintained tire wall that can be proven was a known issue, fails and causes severe injury or death. That's malpractice not risk.

While Moron shouldn't have exited his car, if the waiver wasn't explicit about the rules, under "Recreation" they are responsible for him not staying in his car.

What this means is, official and Documented Driver Briefings of the safety rules so they can PROOVE you were told most likely.

I can see if I still have the notes from the Flight School Waiver thing I went to which covers most of the same stuff, but It may have been purged in a cleaning frenzy.

Mistake By The Lake Racing (MBTL)
88 Thunderbird "THUNDERBIRDS ARE GO!", Ex Astris, Rubigo / Semper Fracti
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Re: Interesting track waiver ruling.

Stewart was already cleared of any wrongdoing in criminal court. The family is just being greedy and vindictive. I am not aware of the family suing the venue or organizer,  but that's what the waivers actually cover. (the one you sign at the gate is for the track, the one at registration is for the event organization.)

Personal liability runs both ways. If you're going to call out Stewart for his actions -- in fact, actions beyond his control. The same applies equally to Ward. You cannot argue he is unaware of the danger to which he is exposing himself and others by walking onto a live race track -- i.e. "walking out into high speed traffic". Pain and suffering? He didn't last long enough for either. Terror of impending death? Given his brazen, red misted charge onto the track, very unlikely.

Stewart should sue the ever loving shit out of the Ward family for the "mental anguish" caused by their son's actions. (see how stupid it sounds)

Duff Beer Civic (#128) -- 2014 Sebring - Class B (#1 of 7), 2016 Barber - Class B
1981 Jet Electrica 007 [Plymouth Horizon TC3] (#128) -- Mk.1 - Index of Effluency Eco (IOEe) @ 2016 Lemons South Fall, Mk.2 - Judges' Choice @ 2017 'Shine Country Classic, Mk.3 - Index of Effluency @ 2017 Southern Discomfort

Re: Interesting track waiver ruling.

You are missing the point.  In this particular case, the waiver limited what the parties could sue for.  With the waiver ruled invalid, the possible causes of action plus Stewart's potential liability are uncapped.  Ward's actions may no longer be relevant.  The particulars of the Ward case have been beaten to death, don't drive high, don't chase cars ohin a hot track, etc.  I've driven sprint cars and am well aware of what went down and how it happened the way it did.  I've also worked for Stewart so I know what he's like.  But none of that is what this about.

Why it's of interest to us is whether or not this was a flaw in the track's waiver, a quirk in NY law or whether it will have broader negative implications to us going out and playing car in our hoopties.

1990 RX7 "Mazdarita"  1964 Sunbeam Imp (IOE 2013 Sears Pointless) 2002 Jaguar x-type (Winner C-Class 2021 Sears Pointless)
Gone bye-bye
1994 Jaguar XJ12 (Winner C-Class 2013 Sears Pointless)  1980 Rover SD1 (I Got Screwed 2014 Return of Lemonites)

Re: Interesting track waiver ruling.

I've read the decision - Under New York law there IS a problem with the waivers in question that unfortunately is probably shared with many of the wavers we sign with tracks and organizers - they attempt to exempt the organizer and the track from liability for negligence.  Laws on this vary from state to state, but under the applicable NY law, if the law applies to the release in question, the release is "wholly unenforceable."

Here's the relevant law: 

[e]very covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admissions or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the [*20]  owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.

Here's the organizer's release:

In consideration of being permitted to join Empire Super Sprints, Inc. (hereinafter called "ESS") and being permitted to participate in or be a spectator at Empire Super Sprints, Inc. membership events during 2014 I hereby:

1. Release, waive, discharge, and promise not to sue ESS, any of it's [sic] officials, any of its members, any of it's [sic] sponsors, or car owners, drivers, pit crews, for personal injury or property damage which I sustain during 2014 arising out of an ESS event, whether my loss is caused by the negligence of ESS or it's [sic] members. This does not waive rights of suit in the event that an action is termed criminal within the jurisdiction of applicable [*5]  law.

2. Agree to indemnify and hold harmless ESS, its officials and members for any loss, liability, damage, or cost which may incur due to my presence at an ESS event, whether I am competing, officiating, or observing an ESS event.

3. Assume the risks inherent in automobile racing and assume responsibility for the bodily injury or property damage which those risks can cause.

Here's the track's release:

In consideration of being permitted to compete, officiate, observe, work for, or participate in any way in the Event(s) pr being permitted to enter for any purpose any restricted area (defined as any area requiring special authorization, credentials, or permission to enter or any area to which admission by the general public is restricted or prohibited), I, the undersigned, for myself, my personal representatives, heirs, and next of kin:

. . . .

3. Hereby release, waive, discharge and covenant not to sue the promoters, participants, [or others] . . . from all liability to the undersigned . . . for any and all loss [*6]  or damage, and any claim or demands therefor on account of injury to the undersigned's person or property or resulting in death of the undersigned arising out of or related to the event(s), whether caused by the negligence of the releasees or otherwise.

4. Hereby agree to defend, indemnify and save and hold harmless the Releasees and each of them from any loss, liability, damage or cost they may incur due to claims brought against the releasees arising out of or related to the undersigned's injury or death from the event(s) whether caused by the negligence of the releasees or otherwise.

5. Hereby assume full responsibility for any risk of bodily injury, death or property damage arising out of or related to the event(s) whether caused by the negligence of releasees or otherwise.

The judge found that Ward paid money to both the organizer and the track, and was not a professional racer - i.e., he wasn't making money from racing (like most, the family was spending massive amounts of money to go racing).  He paid money to participate for fun (even though some prize money was available) and in those circumstances he was a "user" of a "recreational" facility and the statute operated to invalidate both waivers in their entirety. 

One issue that I did not see raised in any of the case law cited in this decision was the issue of prize money and whether that transforms an event from "recreational" into "professional".  I'm not sure if there's case law on that issue.  If there is I assume it would have been cited by Stewart's lawyers but it was not cited by the court.  Assuming Stewart appeals this decision that might be a big part of it.

Another item I noticed is there was an exception for "instruction."  It was a skydiving case - basically if you are paying to receive instruction it is not a recreational activity.  That distinction might save many HPDE's from having the same thing happen to them.

Once again, this is a ruling under the specific New York state law cited above.  Laws on these types of releases vary considerably from state to state and I would not be at all surprised to see a completely different result given exactly the same facts had they occurred somewhere other than New York.

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Re: Interesting track waiver ruling.

My understanding is you can NEVER sign away your protection form negligence. Even Instruction still leaves the provider open to negligence.

It was incompetent to put that in a waiver to begin with but was probably just regurgitated boilerplate since most wavers seem to be identical save for the names.

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88 Thunderbird "THUNDERBIRDS ARE GO!", Ex Astris, Rubigo / Semper Fracti
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Re: Interesting track waiver ruling.

@mgavro Thank you

1990 RX7 "Mazdarita"  1964 Sunbeam Imp (IOE 2013 Sears Pointless) 2002 Jaguar x-type (Winner C-Class 2021 Sears Pointless)
Gone bye-bye
1994 Jaguar XJ12 (Winner C-Class 2013 Sears Pointless)  1980 Rover SD1 (I Got Screwed 2014 Return of Lemonites)

Re: Interesting track waiver ruling.

Guildenstern wrote:

My understanding is you can NEVER sign away your protection form negligence.

It varies state to state and there are numerous hoops to be jumped through and loopholes to be avoided, but in certain circumstances it is possible.

Electric Mayhem Racing

Re: Interesting track waiver ruling.

A bigger issue is how could they prove the track was negligent because idiot decided to exit his car and go on the track?

What would be reasonably expected of the track to do?

Mistake By The Lake Racing (MBTL)
88 Thunderbird "THUNDERBIRDS ARE GO!", Ex Astris, Rubigo / Semper Fracti
A&D: 2014 Sebrings at Sebring (NSF), 2014 NJMP2 Jurassic Park (SpeedyCop), 2012 Summit Point J30 (PiNuts)
2018 Route Sucky-Suck Rally Miata, 2019 World Tour Of Texas 64 Newport

Re: Interesting track waiver ruling.

I don't believe the track is the target of the suit nor do I believe any negligence on their part will be found.  That was the venue so they got sucked in.  I think the primary problem Stewart faces is explaining why he accelerated. Its going to be difficult conveying to a layman jury that a sprint car isnt like your street car where you turn the steering car and it turns.  You turn the wheel on a sprint car when its idling and it just pushes.  It's a locked rear end with different diameter tires and you have to give it gas to turn the car.  If the jury finds he purposely accelerated to run the guy down, then he's negligent and the sky is the limit for damages.  That's why they fought so hard to keep the waiver in, to limit a negligence claim.

1990 RX7 "Mazdarita"  1964 Sunbeam Imp (IOE 2013 Sears Pointless) 2002 Jaguar x-type (Winner C-Class 2021 Sears Pointless)
Gone bye-bye
1994 Jaguar XJ12 (Winner C-Class 2013 Sears Pointless)  1980 Rover SD1 (I Got Screwed 2014 Return of Lemonites)

Re: Interesting track waiver ruling.

Ahhh I see.

It's the "Participants" part of the waivers language.

Yea defense is going to have their work cut out for them because the Plaintiff will certainly try to get the Jury thinking like the cars they drive not the goofy winged engine sleds they were racing in.

Mistake By The Lake Racing (MBTL)
88 Thunderbird "THUNDERBIRDS ARE GO!", Ex Astris, Rubigo / Semper Fracti
A&D: 2014 Sebrings at Sebring (NSF), 2014 NJMP2 Jurassic Park (SpeedyCop), 2012 Summit Point J30 (PiNuts)
2018 Route Sucky-Suck Rally Miata, 2019 World Tour Of Texas 64 Newport

Re: Interesting track waiver ruling.

cheseroo wrote:

I don't believe the track is the target of the suit nor do I believe any negligence on their part will be found.  That was the venue so they got sucked in.  I think the primary problem Stewart faces is explaining why he accelerated. Its going to be difficult conveying to a layman jury that a sprint car isnt like your street car where you turn the steering car and it turns.  You turn the wheel on a sprint car when its idling and it just pushes.  It's a locked rear end with different diameter tires and you have to give it gas to turn the car.  If the jury finds he purposely accelerated to run the guy down, then he's negligent and the sky is the limit for damages.  That's why they fought so hard to keep the waiver in, to limit a negligence claim.


Unless they have video that was not released, I don't see how they can prove Stewart accelerated.  The video that was made public was taken with a cell phone from across the track.  The engine you hear could be any one of the other cars on the track.

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Re: Interesting track waiver ruling.

racinrob wrote:

Unless they have video that was not released, I don't see how they can prove Stewart accelerated.  The video that was made public was taken with a cell phone from across the track.  The engine you hear could be any one of the other cars on the track.

Easy.  Eyewitnesses.  Racers that were directly behind Stewart testified that they saw him steer to the right and accelerate.  Defense seems to be arguing that in a sprint car those were the appropriate driver inputs for Stewart to take to avoid the collision.

I read a theory from a dirt-tracker on another website that Stewart was setting up to "roost" the kid - basically spray some dirt in his face - but because there was a car right in front of him and the kid was coming down the track pretty fast, he didn't expect him to be where he was.  There's only one person on earth that knows whether that's true.

New York is a comparative negligence state, so if it goes to a jury they would have to decide how much of the blame goes to Ward and how much goes to Stewart.  Theoretically, the more blame they place on Ward the lower the damages.

Electric Mayhem Racing

Re: Interesting track waiver ruling.

I've driven the cars and that is appropriate way to get one turned when idling.  They really don't turn for shit at anything other than speed and with throttle.  Brakes also suck too.  They mostly set the car so you can turn it but most of them will barely lock the wheels.  With a wing you can't see out the right side of the car so anyone approaching that side would seem to appear out of nowhere.  Plus its night with a dirty face shield and the guy was wearing a dark driving suit.  Two of the drivers who were behind Stewart that will likely testify against Stewart are an ex-girlfriend (anyone remember during his wild championship run a few years ago when he went on a winning tear and they asked him on TV what had changed?  His response "I got rid of some deadwood"  Yup, it was her) and the guy the ex-girlfriend later married.  The whole thing really is unfortunate because on one hand if the Ward family gets shut out, they have invested so much hatred towards Stewart that I just dont know how/where they unload that emotion.  On the other hand, I honestly don't believe Stewart even knew the guy was there until it was too late to avoid him.  The slide job Stewart put on Ward the lap before wasn't dirty and someone with more experience perhaps would have realized that staying out there was a losing proposition and backing off and letting him pass or setting up for a crossover is the usual maneuver in that situation.  Stewart gave him enough room to get himself out of there.  Anyway, that's why I think Stewart would be bewildered that anyone would be mad at him.  It's just an unfortunate mess.

1990 RX7 "Mazdarita"  1964 Sunbeam Imp (IOE 2013 Sears Pointless) 2002 Jaguar x-type (Winner C-Class 2021 Sears Pointless)
Gone bye-bye
1994 Jaguar XJ12 (Winner C-Class 2013 Sears Pointless)  1980 Rover SD1 (I Got Screwed 2014 Return of Lemonites)

Re: Interesting track waiver ruling.

And then there is this from Brazil:

https://www.motorsport.com/kart/news/ma … ht-989234/

https://cdn-8.motorsport.com/images/amp/0LxV1J90/s6/kart-500-miles-granja-viana-2017-fight-6845349.jpg

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Re: Interesting track waiver ruling.

^ I have my own "That'll go on your permanent record" moment.  Years ago in a post crash discussion we both ended up over the wall onto the hot track rolling around exchanging pleasantries just as they were restarting the race with accelerating cars passing about 20 ft away.  I was the club's reigning "Sportsman of the Year" at the time.  For some reason they never gave out that award again. 

With age comes wisdom.

1990 RX7 "Mazdarita"  1964 Sunbeam Imp (IOE 2013 Sears Pointless) 2002 Jaguar x-type (Winner C-Class 2021 Sears Pointless)
Gone bye-bye
1994 Jaguar XJ12 (Winner C-Class 2013 Sears Pointless)  1980 Rover SD1 (I Got Screwed 2014 Return of Lemonites)