LAW LIFE: Plaintiffs versus pre-injury releases

By Pat Murphy The Daily Record Newswire In honor of Trevor Bane's unlikely win at the Daytona 500, let's take a look at a couple of new cases addressing the enforceability of pre-injury releases in the motor sport context. I myself am more of the George Carlin persuasion: cars are for getting from here to there, not for racing. But when you have racing vehicles, you have crashes. When you have crashes, you have injuries. And when you have injuries, of course, you have lawsuits. Injured motorcross rider can sue Last week, the California Court of Appeal decided the scope of a release signed by Jerid Rosecrans when he was admitted to the Starwest Motocross Track in Perris, California. On June 17, 2007, Rosecrans went to take some practice laps around the .6 of a mile track. Rosecrans was 38 at the time and had been riding motorcycles since he was 14. Rosecrans zipped around the track for about 30 minutes before he took a tumble after jumping a ramp. Rosecrans wasn't hurt by the fall, but pain and injury was close on his heels. There were about 20 other motocross riders on the track at the time. Because Rosecrans had fallen on the down slope of a ramp, he was out of the view of the riders immediately behind him. As Rosecrans was picking himself up, he was struck by another motorcyclist. About 20 seconds later, Rosecrans was nailed by a second motorcyclist. Rosecrans sued the owner of the track for his injuries. The track owner pulled out the standard release which Rosecrans signed to gain admittance. The release was pretty comprehensive, appearing to cover every mishap, including those occurring during an eclipse of the moon. The trial court agreed that the track's release was sufficient to bar Rosecrans' ordinary negligence claims and dismissed his lawsuit in its entirety. But last week the California of Appeal threw a wrench in the track owner's plan to walk away from Rosecrans' injuries free and clear, concluding that the motocross rider had a claim for gross negligence that wasn't covered by the release. Rosecrans alleged that the track normally employed two "flaggers" whose job it was to signal other riders when a motorcyclist was down on the track. According to Rosecrans, there was only one flagger on duty when he had his accident, and that flagger wasn't in a position to prevent follow-on riders from running him down when he took his tumble. The Court of Appeal recognized that "the owner/operator of a motocross track has a duty to provide a warning system, such as caution flaggers, to alert other riders of a fallen participant on the track." Moreover, the court concluded that the alleged failure of the track to post a flagger in the vicinity of Rosecrans' accident may have amounted to gross negligence. The court explained that Rosecrans' evidence showed that "(1) it is standard practice in the [motocross] industry to have caution flaggers on their platforms at all times, based upon [an industry manual for caution flaggers]; (2) a caution flagger was not posted on the platform near Jerid's fall at the time of the accidents, as stated by Jerid; and (3) the failure to post a caution flagger on the platform was an extremely egregious error, as declared by the safety expert. ... "Based upon this evidence, [Rosecrans] created a triable issue of fact as to whether the failure to provide a caution flagger constituted an extreme departure from the ordinary standard of conduct. (Rosecrans v. Dover Images) The misadventures of Beer and Toot While Rosecrans can celebrate the opportunity to place his case before a jury, Charles Beer and Darin Toot shared a different fate at the hands of a state appeals court. On Oct. 3, 2003, Beer and Toot were severely injured at the La Crosse County Fairgrounds Speedway in Wisconsin. They were hurt when a racecar lost control and left the track, striking both Beer and Toot as they were standing within a restricted area of the infield. Beer and Toot sued the Speedway for their injuries. Earlier this month, the Wisconsin Court of Appeals decided that their lawsuit was barred by Speedway's standard "Release And Waiver of Liability" form, which the two men had signed as a condition of participating in the event. The court rejected the argument raised by Beer and Toot that the Speedway release violated public policy. This was well-trod ground for the court, noting that it had upheld an "identical" exculpatory clause in a 1999 case, Werdehoff v. General Star Indemnity. "In Werdehoff ... [w]e addressed whether the release was 'clear as to its application,' and concluded that it was; whether the release 'clearly communicate[d] the terms of the agreement to the signer,' and concluded that it did; and whether the release 'serve[d] two purposes,' and concluded that it did not. Consequently, we concluded that the waiver did not violate public policy.... As we have explained, the waiver in Werdehoff is, in all pertinent respects, the same as the waiver here. Accordingly, we are bound by our conclusions in that case," the court said. (Beer v. La Crosse County Agricultural Society) Published: Thu, Feb 24, 2011