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February 24, 2013

This Weekend’s NASCAR Crash, Injuries: A Legal Breakdown

by Sam Ranard
By John M. Phillips

It has been reported that anywhere from 28 to 30-plus fans were injured when a violent crash shattered a race car, slinging parts from the track at the Daytona International Speedway through and over the fence and into the grandstands. No fatalities were reported. This entry looks at injury liability, contract law and “assumption of risk” and copyright law.

What happened?

The Saturday race was known as the NASCAR Drive 4 COPD 300 and is a part of the Nationwide Series. With two laps left, Tony Stewart took the lead, pushed by Sam Hornish. This pair couldn’t get more than a couple of lengths ahead of the pack, as racing has been made to be highly competitive over the years so finishes come down to an exciting ending. Hornish had to drop back to cool his engine. Stewart, without a partner, dropped to fifth. Brad Keselowski pushed Regan Smith into the lead.  Hornish got back behind Stewart with just under a lap to go and pushed him through the traffic to challenge Smith for the lead on the outside. Coming out of the final turn, Smith moved high to block Keselowski, who was trying to slingshot past to take the lead. The two cars touched, turning Smith sideways, and setting off a chain of collisions in the following pack. Kyle Larson’s , several places back, was hit from behind, sending it into the car ahead. The nose of Larson’s car dug in, the tail rose, and the car lifted off, spinning into the catch fencing four feet in the air, above the SAFER barrier. The fencing stopped the car from entering the stands, but some parts including the engine and a front wheel, went through or over the fence and into the crowd. His car was desiccated in the crash.

DRIVE4COPD 300

As a result, two huge holes were ripped in the catch fencing, and a steel standard was bent by the force of a 3600-lb. racecar hitting it at 180 mph. Thankfully, the strength of the safety barrier was sufficient to keep most of the wreckage out of the stands. Had the fence been even slightly less strong, massive fatalities almost certainly would have occurred.

History of fan injury:

The worst motor racing spectator tragedy in history was at the 24 Hours of Le Mans in 1955. Pierre Levegh’s Mercedes shot into the main grandstands, immediately killing 81 spectators and Levegh. Officials at Le Mans decided not to stop the race, fearing that if they did, the ensuing bedlam would further jam the small roads from Circuit de la Sarthe back into the town of Le Mans, blocking the paths of ambulances carrying dozens of badly injured. Some French journalists believed the death toll eventually exceeded 100.

Flying tires have been a race promoter’s nightmare for decades. Most recently, tires and shrapnel flying over fences caused two tragedies in less than a year in Indy car racing in 1998 and ’99.  Three spectators were killed during a CART race at Michigan International Speedway in ’98, by shrapnel that flew over the fence and into the stands.  Less than a year later, at Charlotte Motor Speedway, three more fans were killed by one flying tire during an Indy Racing League event.

Those two tragedies prompted heightening and strengthening of catch fences, and widening of their overhangs, at tracks nationwide. NASCAR was proactive at that time, mandating tethers for wheels and hoods on its cars, so they’d be “tied down” essentially.  But no tethers are totally invulnerable to shearing in crashes as violent as Saturday’s.

What went wrong:

NASCAR officials said the tether system designed to keep the tires attached to the car “for the most part held up” even though two tires went into the stands. “The tethers did hold on, but the challenge is that piece obviously got away when it hit the fence,” NASCAR Senior VP Steve O’Donnell said of the front of Larson’s car that was sheared off. “That’s something, again, we can learn [from]. “The tethers came from an incident where we learned with a tire going and escaping from the cars. We implemented tethers. Now we’ve got to take another look and say, ‘Hey, is that the best practice or is there more that we can do?’ ”  O’Donnell did not speculate on whether the crossover gate in the fence at the major point of impact played a role in making the accident worse. The remaining front stretch crossover gates were not removed for the 500.

According to Joie Chitwood, the Speedway president, 14 people were transported to hospitals while 14 others were injured. However, local officials believe the numbers may be a little higher. Chitwood says that even though fans were lined along the fence where Larson’s vehicle crash-landed through, there was a buffer there and all safety protocols had been in place.

Chitwood car looks to have struck through the cross-over gate—an area that can be opened so people can move between the grandstands and the field. NASCAR Senior VP Steve O’Donnell said the crash is being examined to determine whether anything needs to be done to improve current safety procedures.
DRIVE4COPD 300

One spectator was reportedly hit 45 rows up in the stands.

It was a terrible incident and each and every injured party –and potentially their attending family members- have legal claims for personal injury.

Reaction:

NASCAR immediately sought to quash videos from fans and media- alike, having them removed from YouTube and similar sites. On the attendees’ tickets, NASCAR claims to own the rights to all “images, sounds and data.”

NASCAR%20Ticket

For further information regarding the clause and its applicability, ticketholders are directed to http://www.nascar.com/rights, which is not even an active page, as it pulls up as an error.  NASCAR later changed its course, saying the video had been pulled in deference to the uncertain health status of many of the injured fans. This still does not change NASCAR’s initial stance, however, that they have a right to limit access to this content.  They may have some ownership in materials, but it is not exclusive and the person taking the photos or video would have superior or, at the least mutual rights.  NASCAR simply tried to quash the bad PR, leading up to its shining star- the Daytona 500.

Questions? Leave a comment below of contact the Law Offices of John M. Phillips, here.

Premises Liability:

NASCAR’s ticket also says that racegoers’ assume the risk of injury. Again, it sounds good, but that is only in the case of something commonplace. If they trip or get a bad burger, NASCAR may not be responsible, but NASCAR cannot disclaim premises liability of this magnitude.  Property owners and event holders must make sure that they have done all they can to prevent an injury accident from happening. This applies to both owners of public properties and private properties. At public events, when there are large crowds and potentially dangerous situations involved, even more precaution must be exercised to protect patrons, guest, participants, and others.

H.A. “Humpy” Wheeler, the president at Charlotte Motor Speedway when three spectators were killed when a tire went over the catch fence during a 1999 IndyCar event, said lawsuits surely will come.  Fifty were filed in the CMS incident with most settled out of court.

These stories were used and quoted in this story- http://www.rawstory.com/rs/2013/02/23/28-people-injured-after-crash-in-final-lap-of-nascar-event/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+TheRawStory+%28The+Raw+Story%29
http://espn.go.com/racing/nascar/cup/story/_/id/8980292/daytona-international-speedway-fence-fully-repaired-sunday-sprint-cup-race
http://espn.go.com/racing/nascar/nationwide/story/_/id/8978945/daytona-500-crashes-hurt-even-kill-fans-long-history-auto-racing

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