“Waiving” The Checkered Flag When Racing Turns Deadly

In the aftermath of Dan Wheldon’s death, IndyCar will not return to Las Vegas Motor Speedway in 2012. Courtesy: Jennifer Stewart/US Presswire

In light of the tragic death of IndyCar racer Dan Wheldon this past year, The Legal Blitz elected to investigate some of the courtroom consequences that could theoretically surface in its aftermath. In the event of any accident of this sort, substantial money awards may be involved and various parties may be at risk of lawsuit. The range of defendants is often restricted by the terms of waiver contracts, which many racers or other professional athletes sign to release the league or other entity from certain liability.

In the context of a dangerous activity such as professional car racing, waiver contracts are often upheld by the courts because of the valuable consideration in the exchange: the right to participate

We caught up with Walter T. Champion, Professor of Law at Texas Southern University’s Thurgood Marshall School of Law and a graduate of Temple Law School. Prof. Champion stands by his words from a 2004 article, Car Race Waivers’ Checkered Flag on Third Party Loss of Consortium Claims, published in the Seton Hall Journal of Sports & Entertainment Law (14 Seton Hall J. of Sports & Ent. L. 109, 122-23 (2004)):

“The classic form for car race waivers are those that are dedicated to the participant: the steely-eyed NASCAR professional. . . . In the classic example of an experienced professional driver participating in a high-risk endeavor, waivers will usually be upheld. In cases where the waiver is not upheld, unexpected circumstances that should be under the control of the owner-operator may interfere with the vehicle and cause a mishap, for example, a wrecker on the track fixing the loudspeaker or a collision with a deer. The question is whether circumstances behind the accident were reasonably foreseeable risks, and whether the failure to take proper precautions to avoid the accident constituted wanton and willful negligence.”

Even if a waiver contract with the organization sanctioning the race (e.g., NASCAR) is upheld, athletes or their families may be left with other avenues for recovery in the event of death or serious injury that occurs in the course of sport. The first of these is arena liability. While spectators have been known to sue stadiums for slipping on stairs and similar accidents, athletes theoretically can attack these defendants as well. In the Wheldon accident, for example, there have been questions regarding the high-speed and high-banked oval track featured at Las Vegas Motor Speedway and the number of racers competing at one time.

Waiver contracts may also be relevant in the event one athlete decides to pursue a tort claim against another athlete. While even some of the most gruesome of sports injuries may occur in the normal course of events (see, e.g., Joe Theismann, Willis McGahee), sometimes players do things beyond what is deemed appropriate for play (see, e.g. Marty McSorley using his stick to smack Donald Brashear in the head, with only seconds remaining in a game). Aside from any criminal charges (McSorley was convicted of assault), the aggressor may also be liable in the civil sphere under the wanton and willful negligence standard. This could theoretically prove difficult car racing because nudging other racers into walls happens frequently enough to argue that such activity occurs in the normal course of sport.

Dan Wheldon after his victory at the 2011 Indianapolis 500. Courtesy: Michael Conroy / News Limited

No potential tort suit is complete without trying to drag in a product manufacturer. Prof. Champion believes that professional athletes do NOT waive any right to sue manufacturers in the event of a defect, such as a malfunctioning engine that explodes and causes burn damage to a driver, or a football helmet that cracks in its normal use, causing the player to sustain head injury. Of course, the liability of product manufacturers or any of the other potential defendants already described may be diminished – if not eliminated – by evidence of fault by the injured athlete. For example, a racer’s failure to fasten his seat belt or properly secure his HANS (neck brace) device may cut down the field of liable defendants.

Prof. Champion states that although releases are not favored by the courts, waiver contracts associated with race car driving are generally enforceable because the sport falls under the category of “ultrahazardous activities.” If nothing else, the tragic death of two-time Indianapolis 500 winner Dan Wheldon confirms exactly that. We wish the best to the Wheldon family, no matter which (if any) litigation route they choose to pursue.


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