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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
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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.
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Key
excerpts from 2000 Article |
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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.
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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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