By Robert E. Freeman, Proskauer
The two cars inch their way to the starting line, each driver’s hands trembling on the steering wheel with anticipation. In the next few seconds, they will fly down a straightaway for just over a quarter mile at speeds over 140 mph. The column of lights blinks down from the top. Two reds and a yellow before the green light shines. The light they’ve been waiting for all day: 3 … 2 …1
Racing on this “Two-Lane Blacktop,” accidents can happen. Indeed, in January, a Texas appellate court reinstated a race car driver’s negligence lawsuit against a racetrack operator for injuries sustained in a crash, DQing a lower court’s ruling that the racetrack operator was not liable. (Coleman v. Otese Ltd., No. 19-00015 (Tex. App. Jan. 23, 2020)).The appellate court ruled that the racetrack operator failed to prove that the driver had signed an enforceable release or that the track was otherwise clear of liability.
On August 28, 2015, race car driver Tony Coleman (“Coleman”) lost control of his vehicle at Texas Raceway at speeds over 100 mph, and his truck careened into a retaining wall at a high speed, resulting in a horrific crash and fire. Coleman suffered severe burns and orthopedic injuries. In January 2017, Coleman sued the owner of the racetrack, Otese Ltd. (“Otese”), asserting claims of negligence and gross negligence for Otese’s failure to: adequately clean the track and remove any unsafe track conditions; provide appropriate fire-fighting equipment and trained personnel; provide appropriate medical personnel and equipment; and maintain an adequately designed safety retaining wall (which allegedly had a damaged rail that separated and burst through the truck on impact). In his Complaint, Coleman claimed that the prior race had ended in a crash which, according to Coleman, caused motor oil to spill onto the track. He also alleged that the raceway workers’ attempts to clean up the oily fluids were ineffective, leaving the track slick and unsafe, thereby creating the conditions that were the ultimate cause of his accident. Raising a red light, Otese fired off counterarguments, stating that there was insufficient evidence that it had breached any duty to Coleman, that any breach proximately caused Coleman’s injuries, or that Otese acted in a grossly negligent way. Moreover, Otese claimed Coleman’s claims were barred by the doctrine of waiver, based on Coleman having signed a technical inspection document or “tech card” before the race that referenced a “K & K Insurance waiver” that is contained in a separate document that purportedly released Otese from any liability for injuries caused by negligence.
In December 2018, a Texas District Court (Tarrant County) granted Otese’s motion for summary judgment and dismissed the action, prompting Coleman’s appeal. While the appellate court affirmed the dismissal of gross negligence claims against Otese, it found material issues of fact surrounding Coleman’s negligence claims that warranted the dispute take a U-turn back to the trial court. Coleman’s first challenge was whether Otese’s waiver was effective and whether Coleman had fair notice that the tech card incorporated the Release. While Coleman acknowledged signing the tech card, he claimed he was not aware that he was signing any release. The court rejected Otese’s waiver argument, finding that the tech card did not expressly contain a release and the reference to a “K & K Insurance waiver” on the tech card did not sufficiently incorporate by reference any other document. Moreover, the court held that nothing on the face of the Release form introduced by Otese indicated that it was the same document as a “K & K Insurance waiver.” Lastly, the court ruled that Otese failed to establish that Coleman or any crew member with authority signed the Release form on the day of the accident.
Coleman’s second contention concerned the prior crash that allegedly released fluids on the track. Otese claimed that the prior accident occurred in a different area of the track, the track was adequately cleaned, and that the oil on the track may in fact have come from a missing fuel cap on Coleman’s truck (not to mention that Coleman raced without wearing fire-retardant protective apparel). Coleman pointed to his own testimony, stating that he saw a slipshod clean-up of the earlier accident (e.g., personnel allegedly used a sweeper and then poured cat litter on the track). Coleman also pointed to his expert witness’s report, which suggested Otese was negligent in its failure to properly train employees in track safety, and have adequate firefighting gear and functioning safety barriers on site. Alarmingly, when Coleman crashed, the first two fire extinguishers that the raceway workers attempted to use to put out the fire were completely empty while Coleman remained trapped in the wrecked truck. Looking at both sides, the court held that Coleman had raised factual issues as to how the oil got onto the track and whether it was adequately cleaned up, as well as evidence of potential omissions constituting a breach of duty and causation sufficient to allow the case to go forward.
While Otese beat out Coleman by a nose on the gross negligence claim, the court was of the opinion that Coleman’s arguments presented enough questions of material fact to overrule the previously entered summary judgment in favor of Otese. With arguments to be renewed at the trial court level, the winner of this race remains to be seen.
