Legal tangles over Daytona crash

Last updated 16:18 26/02/2013
Fairfax Australia

YouTube has restored footage of a spectacular crash after initially removing it at the request of Nascar organisers.

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An attempt by Nascar to block a video posted to YouTube of a crash at Daytona was rejected by the video sharing website.

About 30 spectators were injured when the crash at the weekend propelled debris, including at least one tyre, through and over a fence meant to protect the crowd.

Two spectators, who were originally listed as critical on Saturday, were described as in stable condition today. Others were either in stable condition in hospital or had been treated and released.

The crash was filmed by a spectator who later uploaded the vision to YouTube.

Nascar's senior vice-president and chief marketing officer Steve Phelps said Nascar moved to block images of the crash and victims in the stands posted on YouTube.

The video was initially blocked on YouTube with copyright concerns cited. But on review the video sharing website said there was no copyright infringement and unblocked it.

A later response from Nascar was they wanted it blocked out of respect for the people injured.

CHANCE AT A LAWSUIT

Spectators injured when they were hit by wreckage from the crash face a significant obstacle if they want to pursue injury lawsuits against Daytona International Speedway, its owner and the sport’s governing body Nascar: The fine print on their tickets.

Lawyers said that in the event of litigation arising from the pile-up at a second-tier Nationwide race, Nascar (the National Association for Stock Car Auto Racing), Daytona speedway and its owner, International Speedway Corporation, would likely point to the disclaimers displayed on auto-racing tickets, which were designed to inform buyers of potential dangers and waive any personal injury liability.

The disclaimer on a Daytona ticket said: ‘‘The holder of this ticket expressly assumes all risk incident to the event, whether occurring prior to, during or subsequent to the actual event, and agrees that all participants, sanctioning bodies, and all employees, agents, officers, and directors of Daytona International Speedway, its affiliates and subsidiaries, are hereby released from any and all claims arising from the event, including claims of negligence.’’

It has become common practice for sports businesses to place the disclaimers on the back of ticket stubs for admission to a variety of venues, such as ski resorts, hockey arenas and baseball fields, lawyers said.

Lee Kaplan, a trial lawyer who has defended Chrysler Group and Toyota Motor Corporation in product liability cases, said he felt the language in the Daytona disclaimer should be enough to cover possible claims arising from the Daytona crash.

He said spectators understand the risk they are taking by buying a Daytona ticket.

‘‘They are held to the knowledge that racing is inherently dangerous and spectators can be injured,’’ said Kaplan, a Houston lawyer, noting that the word ‘‘risk’’ in the disclaimer captures that sentiment.

But one question that might arise could be whether the disclaimers are enough to offset any questions about whether the organisers provided strong enough fencing and appropriate seating arrangements to keep fans safe from danger, personal injury lawyers said.

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If it were proven that Daytona knew that the fans were in harm’s way and opted against taking action such as changing the fans’ seating arrangement or setting more distance between the safety fence and the track, then potential injury claims were more likely to supersede any so-called ‘‘buyer beware’’ ticket disclaimer, Dan Kirschner, a Chicago personal injury lawyer.

Oakland-based attorney Bob Eassa, who has defended the Oakland Raiders in a variety of personal injury lawsuits by NFL players, said the disclaimer only covers ‘‘normal risk’’ and that the notice cannot remove claims of negligence if the company was proven to have acted inappropriately.

He said other legal claims that a ticket disclaimer would not waive are related to product liability.

The injured could claim, for instance, that International Speedway Corp and the construction company it used to make the safety fence did not use strong enough materials to prevent debris from flying into the stands and injuring spectators.

‘‘You’re attacking the fact that they didn’t do it right,’’ Eassa said.

By Monday morning, there were no reports of lawsuits being filed over the crash.

Saturday’s wreck happened after driver Regan Smith, who was leading the race, attempted to block another driver as they were nearing the checkered flag in the final lap of the race and hit the other car, a report on nascar.com said. This led to a pile up that sent driver Kyle Larson’s car airborne and ripped out its engine, sending the debris into the crowd. He walked away from the wreckage unhurt.

Nascar has required tracks to have US$50 million (NZ$60m) in insurance to cover spectator injuries, money that would be used to cover lawsuits against it, according to SEC filings.

International Speedway Corp has rarely defended itself in public lawsuits against Nascar fans over personal injury claims arising from accidents at its racetracks.

Recent accidents at Nascar racetracks include last year’s lightning strike at Pocono Raceway, which killed one fan and injured nine others, and a 2009 crash at Talladega Superspeedway when a car hit the catch fence and flying car debris flew through the fence and broke an 18-year-old’s jaw.

No disclosures of any lawsuits related to either instance could be found in International Speedway Corp’s SEC filings, nor any other personal injury claim over the past three years.

An online and federal court search of the Pocono and Talladega incidents didn’t turn anything up either.

Justin Reiff, an expert in amusement park litigation, said that large companies at risk of injury lawsuits typically quash personal injury claims by offering victims a large, upfront confidential settlement before they file a public lawsuit.

- Reuters

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