Not Making the Grade

by

Harris v. I-44 Lebanon (Missouri)
(Late Model Race Car Driver Injured While Racing on a Dirt Track When a Large Rock Hit His Helmet; Motion for Summary Judgment Based on Waiver and Release Denied; Defense Verdict Issued After Trial)

The case involved late model racing on an oval dirt track in Lebanon, Missouri. The Plaintiff was a 51-year-old lifelong dirt track racer who was injured in 2003 when he was struck by a rock in the mouth area of his helmet during a late model dirt track race.

Roughly five months before this accident, the Lebanon I-44 Speedway was converted from an asphalt track to a dirt race track, which involved laying dirt over the asphalt surface. The initial batch of dirt was unsatisfactory so the track preparer, Randy Mooneyham, removed this dirt and put an entirely new type of dirt on the track. After it was placed on the track, he then used a rock picker, a rock rake and a grader to work the debris out of the track and pack it down throughout the 2003 season. Plaintiff raced on the track several times during 2003 before his accident.

On August 23, 2003, Plaintiff entered the Lebanon I-44 Speedway and signed a waiver and release which included an express assumption of risk. During a race, his car slowed and pulled off the track. An object appeared to have struck his helmet, and a rock about the size of a tennis ball was removed from the racecar. Plaintiff was treated for a broken jaw and missing teeth; eight months later, he underwent surgery on his neck for a herniated disc and a degenerated disc.

Before trial, the Defendant twice raised the issue of release of liability based on the written release signed by plaintiff via two motions for summary judgment. The trial court denied both motions. Despite the fact that the agreement was a typical motorsports waiver and release, which have generally been upheld on a national basis, the court ruled that the written release lacked clear and explicit language to exonerate the track from acts of future negligence. The court also ruled that the agreement was drafted to broadly so as to potentially exonerate the defendant from gross negligence or intentional torts, which would have been contrary to public policy.

At trial, Plaintiff argued that the Defendant should have sifted its track dirt with a power screen sifting machine before the 2003 season. Plaintiff offered the testimony of Russell Darnell, PhD, on the use of power screening machines to prepare dirt racing surfaces. The plaintiff also called Rick Stephenson, PhD, to testify about the movement of rocks within dirt—i.e. that rocks will move upward in dirt when stress is placed on the surface. Plaintiff admitted that his signature was on the waiver and release but that he did not read it. He introduced the release into evidence and testified that he believed it was a health insurance policy covering injuries from the event.

The Defendant presented evidence that sifting track dirt is not the custom and practice of the dirt track racing industry, that there was no evidence that sifting would have removed the rock that struck plaintiff and that plaintiff assumed the risk of this accident. The Defendant offered the testimony of two experts, Larry Kemp (Eldora Speedway) and Cary Agajanian. They testified that virtually no tracks across the country sift dirt before applying it to the track surface. They also testified that flying rocks are a risk of dirt track racing and that the waiver and release is used nationwide in racing events.

Randy Mooneyham also testified as an expert on behalf of the Defendant and discussed in detail the measures he took to work on the track surface, including the weekly preparation as well as the use of the rock rake and rock picker. Because plaintiff raised the issue of health insurance, Mr. Mooneyham testified that he had purchased a participant benefit policy, which had paid its limits of $15,000 on behalf of Plaintiff.

In closing arguments, Plaintiff asked the jury for a total of $934,571.88, which included a $15,000 reduction for Defendant’s health insurance payments. After about 70 minutes of deliberation, the jury returned a verdict for the Defendant Lebanon I-44 Speedway.

Firm Contact Information
Joel A. Block: joel.block@burkarthunt.com
Burkart & Hunt, P.C.
242 S. National Ave.
Springfield, MO 65802
P: 417.864.4906
F: 417.864.7859

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: