By Mailise Marks, of Segal McCambridge Singer & Mahoney, Ltd.
A recent matter filed in Connecticut state court poses the somewhat novel question, what security and safety precautions should a racetrack owner put in place to prevent participants and their crews from harming each other after a race?
On May 30, 2018, Raymond Reed (#87) started the Super X-car race at the New London-Waterford Speedbowl, in the pole position. Jason Larivee, Jr. (#70) began the race in the tenth spot. Reed would dominate the race on the inside with Larivee immediately behind and Marc Shafer in #58 on the outside. The three vehicles would battle for the top spot, before Reed would appear to lose control in the final turn, either following a well-placed bump from Larivee or for other reasons. The race finished with Raymond Reed in eleventh place and Jason Larivee in ninth place. According to the Complaint, filed on March 10, 2020, after the race Reed sustained a broken nose and lost consciousness when a member of Larivee’s team, allegedly Scott Harrington, knocked him to the ground. As a result of these injuries, Reed claims that he suffers such infirmities as post-concussion syndrome and cervical sprain, Reed also alleges lost past and future wages.
The Complaint alleges that the Defendants: Whitney Farm Racing, LLC, lessee of the Speedbowl, New London-Waterford Speedbowl, and Bruce Berner, the owner of the track itself, were negligent. Succinctly, Reed asserts that the Speedbowl failed to provide adequate security measures to prevent the altercation, which resulted in Reed’s injuries.
Post-race scuffles are not uncommon between racers. Indeed, the “greatest fight in NASCAR history,” occurred at the end of the 1979 Daytona 500 and allegedly made NASCAR a national sport.[1] As ESPN Senior Writer, Ryan McGee observed, post-race fight in NASCAR are so memorable because they are scarce. See id. Fights are often separated by months or years. See id. Indeed, a quick search of the NASCAR YouTube channel reveals 6 minutes of fights from 1979 to 2019 showing glimpses of approximately a dozen fights often inspired by on track conduct including rear taps.[2] A review of those fights reveal that pit crews, with some assistance from race officials are more often than not the parties deescalating the battle, but that is not always true.
The Connecticut Courts, like many nationwide, utilize the “reasonable foreseeability” rule to determine if a duty was owed. The Supreme Court of Connecticut summarized “the test as whether or not the ordinary man in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?” Id. at 47 (emphasis added); see also § 344 Restatement 2d of Torts. However, the cases to which this test is applied to sports venue owners typically involve claims made by a casual observer and not a race participant. The relationship between a race participant and a racetrack owner is different in that a participant’s liability can be modified by a contract between the racetrack owner and the participants including the crew members.
Indeed, in the instant matter, the Speedbowl itself has terms of agreement in the Driver Information form which includes the following clause: “…[b]y submitting this form I agree to abide by all rules, regulations and agreements contained in the current official rules and regulations of the… Speedbowl and/or NASCAR, and/or INEX, including any amendments thereto. I agree that I am bound by the following of the rules…” Therefore, with the back drop of the reasonably foreseeable standard adopted by the courts and the deference paid to the terms of agreement by other courts, we can look to NASCAR for insight as to the industry standard on how such tousles should be handled by race officials and race track owners, particularly as such rules are adopted by the Speedbowl.
The rules and regulations of NASCAR are not public, but articles from last seasons races reveal that NASCAR implemented rules which not only impact the drivers participating in fights but also their crews. During the Monster Energy NASCAR Cup Series on or about October 27, 2019, a brief tousle occurred between the tire specialist from Joey Logano’s crew and driver Hamlin was slammed to the ground.[3] According to reports of the event, Denny Hamlin quickly popped up from the ground sustaining no injury as a result of his fall. See id. NASCAR rules permit fines to the tire technician of up to $100,000 or banning the individuals from a number of races depending on the severity of the fight. See id.
As the USA Today piece observes, incidents involving driver injuries from pit-crew involvement have increased- notably since the 2014 brawl between Jeff Gordon and Brad Keselowski. While that altercation resulted in the punishment of three crew members, fights are still an issue that NASCAR officials are working to address. This in turn would provide clear guidance as to how other tracks, including the Speedbowl would handle crew/driver incidents. See id. Therefore, the industry standard seems to be to permit pit crews and a few race officials, at most, to resolve any physical altercations between teams.
The article posits that a possible new standard to prevent race driver brawls and protect participants would be by implementing an automatic suspension policy against any crew member who gets involved in a fight. See id. However, as the article reflects creating such a policy would involve hiring “triple the number of officials on pit road following a race, [as] it doesn’t have enough officials to break up a fight…” Id. If such an expense is beyond the capabilities of NASCAR it seems improbable that a local track in Connecticut would be able to take on such an expense. Which leaves racetracks and racetrack owners with the same question pose above, what protections should racetrack owners put in place if tradition holds that pit crews are generally the ones in the best position to prevent driver injury? Particularly where the injury is caused by a member of the pit crew?
The court will likely focus its attention to the standards adopted by the racing community, including NASCAR, in evaluating what duty if any the Speedbowl owed to Reed in preventing his injuries from Harrington.
Mailise Marks is an Associate Attorney with Segal McCambridge Singer & Mahoney, Ltd. She litigates a wide array of matters including premises liability defense for public and private entities, including entertainment venues, in multiple jurisdictions. She additionally works within the firms data privacy and cyber security practice group. Ms. Marks is admitted in Connecticut, Massachusetts, New Jersey, and New York. She can be contacted at mmarks@smsm.com
[1] McGee, Ryan “The Kyle Busch-Joey Logano scrap was fun; now stop it!” March 14, 2017, (https://www.espn.com/racing/nascar/story/_/id/18907511/nascar-fighting-part-nascar-overdone ) (last accessed on June 12, 2020)
[2] NASCAR, “Best of NASCAR: Most Memorable Fights,” October 25, 2019 (https://youtu.be/WvabpyErNNY ) (last accessed on June 14, 2020)
[3] Pockrass, Bob, “Opinion: Driver fights bring buzz to NASCAR but also judgment calls from crew members, officials” Originally published October 31, 2019; updated November 1, 2019 ( https://www.usatoday.com/story/sports/nascar/2019/10/31/nascar-driver-fights-crew-members-officials-judgments/4104104002/) (last accessed on June 14, 2020)
