Appeals Court Affirms Finding for Motocross Riders

Jun 2, 2006

A Texas appeals court has affirmed a jury’s verdict that a motocross track operator acted with “gross negligence” when it moved a bulldozer from one part of the track to another without advising the participants, resulting in an injury to the participants.
In so doing the panel of judges quashed the defendant’s argument that the participants’ signing of a waiver should release it from the claims, or that the participants were somehow “contributorily negligent.” The judged did provide a small victory, reducing the punitive damages award.
The accident, involving plaintiffs John Phelps and Bryce Hawk, occurred at the Texas Moto-Plex, a motocross track in Fort Bend County, Texas. Phelps and Hawk had paid a fee and signed a release to get access to the track, at such point they were advised that two tractors and a bulldozer were grooming the back section of the track.
The men had been riding for a couple hours when they decided to take a break and gas up their bikes. By the time they reentered the track, the tractors and bulldozer had moved to a separate section. Phelps and Hawk were unaware that the equipment had been moved. After taking the first jump, the men crashed into the equipment sustaining injury.
They sued Texas Moto-Plex for negligence and gross negligence. Texas Moto-Plex admitted its negligence, but denied that it was grossly negligent and contended that Phelps and Hawk were at least partly to blame for their own injuries. The case was tried to a jury, which found Texas Moto-Plex solely responsible for the injuries and awarded Phelps actual damages of $ 191,931 and Hawk actual damages of $ 1,000. The jury also found that their injuries resulted from Texas Moto-Plex’s gross negligence and awarded each plaintiff exemplary damages of $ 75,000.
The first question addressed by the court was: “Were the Claims Barred by the Release?”
The answer to that question appeared to hinge on whether the actions of the Texas Moto-Plex amounted to negligence or gross negligence. The court noted that pre-accident releases of gross negligence violate Texas public policy. In finding there was gross negligence, the trial court relied heavily on the plaintiff’s expert testimony. The defendant, on appeal, had argued that the trial court erroneously allowed the expert. The expert’s testimony, however, was not “an unsupported, conclusory opinion on Texas Moto-Plex’s state of mind but, rather, was more fairly described as a recitation of largely undisputed facts,” according to the appeals court.
The panel of judges next turned to whether the record supports the jury’s malice finding?
“Malice or gross negligence requires much more than ordinary negligence,” held the panel. “Rather, a plaintiff must prove the presence of both an objective element (extreme risk) and a subjective element (actual awareness). See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921, 41 Tex. Sup. Ct. J. 763 (Tex. 1998).”
Central to the appeals court’s decision to affirm was the finding that “Phelps and Hawk received no express warning that the tractor had been moved. No track employee told them about the movement; and no flags, signs, or other warning devices were employed.”
“The jury’s finding is adequately supported even without reference to the disputed expert testimony. It is common knowledge that motocross riding involves high speeds and jumping. In fact, tracks are designed to facilitate that with the use of dirt ramps and banked turns. Having tractors engaged in maintenance activities on the track at the same time as it is being used by motocross riders creates the very risk manifested here: collisions between riders and equipment.”
Next, the court turned to whether there was “subjective awareness.” It concluded that the owner, Teague, of the track “had to realize that he created a hazard that posed a high degree of risk to the riders.” Specifically, it noted that testimony in the record is both legally and factually sufficient to establish:
“(1) Teague was aware heavy equipment and motorcycle riders were on the track at the same time;
“(2) Teague opted to do this for economic reasons rather than close the track or utilize an express warning system;
“(3) Teague asked Wadsworth to move his tractor from the back side of the track to work the area between the third turn and first jump;
“(4) Teague was aware Wadsworth’s tractor was operating between the third turn and first jump;
“(5) Riders approaching the first jump would have at least reduced ability to see equipment on the jump’s back side;
“(6) If a motorcycle rider struck a tractor or bulldozer it could cause considerable injury; and
“(7) Teague did not advise the riders on the track that the equipment was being moved to a different location.
“There was legally and factually sufficient evidence that Teague and thus Texas Moto-Plex created an extreme risk and was subjectively aware of that risk but chose to proceed nonetheless with conscious indifference to the safety of Phelps and Hawk. Texas Moto-Plex’s legal and factual sufficiency challenges to the jury’s malice findings are overruled.”
Next, the court turned to the defendant’s contributory negligence claim.
“Texas Moto-Plex contends Phelps and Hawk were contributorily negligent because they failed to use the designated starting gate to reenter the track after their second break and because they failed to visually locate the tractors and bulldozer when they reentered the track,” wrote the court.
Central to the court overruling this appeal was its determination that the riders only “stopped for a few minutes and did not even take off any of their equipment” before going back out on the track and that they weren’t expected to anticipate that the equipment would be moved.
Texas Moto-Plex, Inc. v. John Phelps and Bryce Hawk; Ct. App. Tex. 11th Dist.; No. 11-03-00336-CV ; 2006 Tex. App. LEXIS 892; 2/2/06
Attorneys of Record: (for plaintiffs) Andrew T. McKinney, Kim A. Cooper, McKinney & Cooper, L.L.P., Attorneys at Law, Houston, TX. (for defendant) H. Lee Lewis, Jr., Todd G. Riff, John J. Kahn, Riff & Associates, P.C., Attorneys at Law, Houston, TX.


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