Last week saw a tragedy at a NASCAR speedway in Daytona, Florida when an accident on the track threw car parts into the stands injuring several people. A friend of mine who is a huge NASCAR fan asked about whether the victims could sue. My first instinct was to say yes. After all, the point of the legal system is to right wrongs and ensure that injured parties are made whole. After thinking about it for a few seconds though, I realized that may be a bit oversimplified because of the legal concept Assumption of Risk.
Normally when an entity, including a business, does anything in the world they carry with them a risk of liability of harming someone. This is why people carry insurance so that when the inevitable mistake occurs, a third-party is there to ensure that the injured party is made whole. Insurance can cost a lot of money and some businesses try to find ways to limit their liability. The most practical way is to implement safety procedures and policies that decreases the likelihood of a claim.
Some businesses have decided that they would rather use the legal concept of assumption of risk. This is especially so when the activity the business promotes is inherently dangerous and safety precautions that would limit the danger are so costly as to be impractical. Examples of this are amateur sport leagues such as Little League or Pee Wee football. Injuries will invariably happen in such contact sports so the contracts the players sign before they can participate explain the risks and limit the liability of the league and other players who may accidentally injure a participant in the course of a game. The player has assumed the risk; he has consented to shifting the risk from the other player and the league to himself.
Assumption of risk doctrine is being used more and more by other areas of industry such as pro sports. When you buy your ticket for a professional sports event (including a NASCAR race) flip the ticket over. Is there a lot of really small text there? If you are the rare person to read it you will probably find that the sport franchise warns you that being a spectator is inherently dangerous and by buying the ticket you assume the risk of injury. Just like the league athlete, the spectator has consented to the danger, and has no recourse against the franchise. Okay, so the injured people at the NASCAR race have no case right? Well, not so fast.
If you ever feel like you have gotten a raw deal and there is nothing that you can do about it……talk to a lawyer. A good lawyer can often come up with an argument that will throw the defense out on its ear. Consider the NASCAR fans. They bought a ticket assuming that the race organizers are doing everything practical to keep them safe (a reasonable assumption). They don’t read the back of the ticket because hey, it’s really small print and they want to go find their seats in the stands. Maybe there are signs at the gates warning the attendees that it’s dangerous to be a spectator but who reads those….the race is about to begin.
The race organizers will likely claim that the spectators were adequately warned of the danger they were putting themselves in and by entering the raceway they basically agreed to a contract shifting the risk from the speedway to themselves. Problem is, how do you consent to a contract when you didn’t know you were entering one? There is no place to sign on the tickets like the athletes in the sports league do, and even if there was, the race organizers don’t have a copy, so how can they reasonably argue that you had informed consent?
On top of that there is such a thing as an adhesion contract which means that the contract contains terms that are inherently unfair to one party who has no choice but to accept them. Normally, courts will void adhesion contracts or at least reform them to disallow the unfair language. So would (unknowingly) consenting to accepting the risk which leaves you suffering from serious injuries be fair? Well, it depends on the jurisdiction. I don’t know what Florida state law says so I can’t give legal advice to folks in Daytona.
What I can tell you though is it is unlikely that NASCAR will let this become a scandal. I bet right now there are lawyers negotiating settlements for the spectators injured in Daytona. NASCAR probably doesn’t want their assumption of risk quasi contract tickets challenged in court and thrown out as adhesion contracts. I also bet they raise and reinforce the barriers around the speedway. In theory they could do nothing and assume the risk that their contract would stand up in court. But why do that? That’s what insurance is for.