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Old 04-04-2018, 08:19 AM   #1
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Track Day Host Sued for Accident Damages

Despite signing the liability waiver at the track, someone has pursued a lawsuit against a track day host....

At a motorcycle track day, a rider ran off the track at Laguna Seca and his trajectory took him into a small sandbag — one of many placed around the track by track staff to direct rain runoff. The rider crashed violently, breaking his leg.

The sandbag is one of the central issues of the lawsuit, which alleges gross negligence on the part of track day host.

In the case of gross negligence, California law allows someone to sue even though they may have signed a liability waiver. Iin the opinion of the rider and his lawyers, the presence of the sandbag constituted gross negligence.

The judge's assessment of "gross negligence" hinges on a clause buried deep in the track day host's contract with Laguna Seca, which said that the tack day host had the right to examine the track before using it. So while the judge ruled that the placement of the sandbag itself was not grossly negligent, the track day host may have been negligent in failing to inspect the track and notice the sandbag; it could have either had the sandbag moved or, perhaps, mentioned it in the riders’ meeting.

The trial is set for May, 2018.

The link below has video of the accident from a rear facing camera on one of the motorcycles ahead of the rider who crashed. Watch the video and decide for yourself.

Read all of the details here: Could This Lawsuit Affect Track Days and Club Racing?
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Old 04-04-2018, 09:38 AM   #2
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Wow, the dude was already gone either way. Lot's of mistakes going on there. To the question of knowledge, If I am on a track (especially one I don't know), moto, or not... I walk the track. Everytime. It's basic and fundamental IMO. It gives one the opportunity to check things out, conditions etc.

This suit is just another example of the narcissistic, "I have no responsibility for my actions" mentality pervading our society.
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Old 04-04-2018, 12:07 PM   #3
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Anyone with logic and common sense would see this for what it is - a blatant money grab from doing something dangerous.

Sadly, finding 12 people with these qualities (esp in CA) is becoming exceedingly hard to do.

The result of this lawsuit will reverberate across the country.
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Old 04-04-2018, 12:51 PM   #4
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I can't ride a motorcycle so I can't comment on the riding of the injured guy. But he didn't go off on the first 10 laps of that session, and he didn't show up at the track until after the drivers' meeting, which he apparently didn't attend. It also seems to me he could have been injured going from pavement to dirt even without hitting any sandbags.
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Old 04-04-2018, 02:13 PM   #5
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I believe a well argued case would point out the gentleman was off line, he was not forced offline, and he sat up early which cause his leaving the track(Indicating a lack of experience). I think this is where auto DE's have a advantage over motorcycle Track days. The Instructor is in your ear in most instances as you start and in some instances before you get in a bad situation.
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Old 04-04-2018, 03:19 PM   #6
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I cannot speak for the legalities here, but I am very qualified to speak to the realities.
The reality is, he blew it! He just blew it. And if he can sue and win because he blew it, then I guess next, he'll sue because he hasn't won a national Superbike Championship yet either? Because either of those situations are clearly the fault of no one but himself.
He blew it.

Having attended hundreds of track days all over the country, and hosted dozens of them myself, and taught at many, many sport bike track-day schools as well, I fall back to the perspective that we all take when we swing our leg over that bike at the racetrack: We all understand the risk. We understand the responsibilities. We see the waiver that we sign as a mere formality, to reinforce what we all already know: which is that if we blow it, it's on us, as individuals.
No one made us blow it.
No one forced us to be there to begin with.
We all understand our health insurance is likely to deny claims. We all understand the risks. And the responsibilities.
All of us, it seems, except Daniel Kim.

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Old 04-04-2018, 06:06 PM   #7
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I cannot speak for the legalities here, but I am very qualified to speak to the realities.
The reality is, he blew it! He just blew it. And if he can sue and win because he blew it, then I guess next, he'll sue because he hasn't won a national Superbike Championship yet either? Because either of those situations are clearly the fault of no one but himself.
He blew it.

Having attended hundreds of track days all over the country, and hosted dozens of them myself, and taught at many, many sport bike track-day schools as well, I fall back to the perspective that we all take when we swing our leg over that bike at the racetrack: We all understand the risk. We understand the responsibilities. We see the waiver that we sign as a mere formality, to reinforce what we all already know: which is that if we blow it, it's on us, as individuals.
No one made us blow it.
No one forced us to be there to begin with.
We all understand our health insurance is likely to deny claims. We all understand the risks. And the responsibilities.
All of us, it seems, except Daniel Kim.

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Ding! 100% can't actually believe this is a discussion. WE take the risk... knowingly, willingly. That should end the discussion right there. If I were to eat a rock off the side of the road because of my mistake (in my sportbike days) is that the state, and local muni's responsibility? Nope...
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Old 04-04-2018, 10:44 PM   #8
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Kimís suit hinges on Keigwinís responsibility to warn him about the sandbags.

This brings up the ridersí meeting. In a text exchange with me just before I posted this story, Dziadzia confirmed something Iíd previously been told off the record ó that Kim didnít arrive at the track until after the ridersí meeting on that morning.

If I was defending Keigwinís, Iíd put Kim on the stand and ask him, ďAre you saying you should have been warned about the sandbags? Youíve been to a lot of track days; isnít it true that the time to issue such warnings is at the ridersí meeting? If the sandbags had been mentioned in the ridersí meeting, would you have been there to hear it?Ē And, ďSince the crash happened 10 laps into an afternoon session, didnít you have ample opportunity to see the sandbags yourself?Ē
This is a blatant cash grab.
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Old 04-05-2018, 04:56 AM   #9
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This is a blatant cash grab.
Yep. Seems clear he wants some working capital for his new startup.

I'm not well versed in the E-cycle world.... but I wonder if the enthusiasts that would be his eventual consumer base will have an issue with the way he tried to fund the venture? I would.... but I'm not a guy who has any interest whatsoever in electric vehicles, especially cycles.

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Old 04-05-2018, 08:04 AM   #10
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The first thing that I want to make clear is that I fully believe that we all take responsibility when we enter the track.

But after talking with a couple of friends about this case, I wanted to convey what some people believe will be the basis for the rider's claim of gross negligence;

The rider will claim that the sandbags were never intended to be part of the track run off area. The rider will present evidence showing that the design of the track never included sandbags in those areas.

Thus, the rider will claim that the sandbags created an "artificial obstacle" that either caused/contributed to him crashing or caused his crash to more serious than would have occurred if the area had been maintained consistent with intended design of track runoff areas - meaning plain dirt/gravel.

Furthermore, the rider will claim that the sandbags were not placed there to improve the safety of the racers but to accomodate rain. Therefore, the safety of the sandbags had never been properly evaluated in terms of risk and the potential for reducing safety, and thus, they should have been removed after any threat of rain had passed to avoid creating an artificial obstacle in run off area.


Your thoughts?
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Old 04-05-2018, 12:25 PM   #11
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The first thing that I want to make clear is that I fully believe that we all take responsibility when we enter the track.

But after talking with a couple of friends about this case, I wanted to convey what some people believe will be the basis for the rider's claim of gross negligence;

The rider will claim that the sandbags were never intended to be part of the track run off area. The rider will present evidence showing that the design of the track never included sandbags in those areas.

Thus, the rider will claim that the sandbags created an "artificial obstacle" that either caused/contributed to him crashing or caused his crash to more serious than would have occurred if the area had been maintained consistent with intended design of track runoff areas - meaning plain dirt/gravel.

Furthermore, the rider will claim that the sandbags were not placed there to improve the safety of the racers but to accomodate rain. Therefore, the safety of the sandbags had never been properly evaluated in terms of risk and the potential for reducing safety, and thus, they should have been removed after any threat of rain had passed to avoid creating an artificial obstacle in run off area.


Your thoughts?
I would counter that argument by suggesting that the design ALWAYS included appropriate measures to control rainwater in a desert climate with little to no vegetation. But the placement of those measures could never be "designed" until rainwater creates its path, and sandbags are placed. I'd further ask "what constitutes a hazard"? It can be argued at an extreme that gravel, sand, turf, any of those things are hazardous, as they do not provide the same consistent qualities in traction, steering & braking as the asphalt does. As many have pointed-out: Kim was crashing whether he hit that sandbag or not. It could be argued at the other extreme that NOTHING is a hazard, if it is placed outside the asphalt surface of the track, as it's not intended to have riders on any unpaved surface. So who determines what constitutes a negligent hazard? I've fallen-down at Barber because I took the runout and instantly locked the front wheel in the wet grass. So is that grass a hazard? Should I sue Barber?

One of the problems we have is that too often in the legal system, we get people who enjoy semantics. They enjoy parsing the words, rather than the meanings of them. They will try to maneuver into a place where this event exists in a vacuum, with no context from the general landscape of the sport, the associated risks, the inherent dangers, etc. They'll try this case in that bleak, context-less field which will provide zero perspective, and then they'll spin the words to suggest an intended meaning that is not in sync with what we all know to be true. This is not justice: it's law. There's a wide gap between the two. "Mind the Gap!"

It's a shame that personal responsibility has been eroded in this country (perhaps it's the world, I don't know?) to the point where we blame everyone but ourselves for getting-in over our heads and getting hurt.
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Old 04-05-2018, 08:37 PM   #12
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The first thing that I want to make clear is that I fully believe that we all take responsibility when we enter the track.

But after talking with a couple of friends about this case, I wanted to convey what some people believe will be the basis for the rider's claim of gross negligence;

The rider will claim that the sandbags were never intended to be part of the track run off area. The rider will present evidence showing that the design of the track never included sandbags in those areas.

Thus, the rider will claim that the sandbags created an "artificial obstacle" that either caused/contributed to him crashing or caused his crash to more serious than would have occurred if the area had been maintained consistent with intended design of track runoff areas - meaning plain dirt/gravel.

Furthermore, the rider will claim that the sandbags were not placed there to improve the safety of the racers but to accomodate rain. Therefore, the safety of the sandbags had never been properly evaluated in terms of risk and the potential for reducing safety, and thus, they should have been removed after any threat of rain had passed to avoid creating an artificial obstacle in run off area.


Your thoughts?
Stone, I think the question would have to be, how long have the bags been a part of that area? You do make a couple of good points, but tracks have hazards. If a track, when originally designed, didn't have a wall somewhere, then added one, let's say just for aesthetic reasons, and someone hit said wall, would that be a similar scenario?

Looking at the footage of just the impact of the bag could suggest it "caused the accident" to someone less knowledgeable. However, there is no doubt the rider was already done. In this case, really, it's all a matter of bad luck. He could have buried the front end into gravel, or lowsided into the runout, grabbed a peg and high sided violently. Happens all the time. Bad luck.
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Old 04-05-2018, 10:23 PM   #13
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Tom - interesting points in your 2nd post. But let's think about the various scenarios around the placement of the sandbags...

1. Assume LS didn't bother to put the sandbags up at all. There would be some wicked gullies that would either need to be addressed after every rain or left for the drivers to contend with at ea. event. Obviously LS would not want to be doing constant landscape grooming, so it makes sense to have the sandbags during rainy season. BTW, it looked like the runoff area was relatively smooth up to the 1st sandbag in the video.

2. Should LS have removed them for this event? How long is their rainy season? They couldn't be expected to know when the rainy season was over. Not sure when this event was held but it obviously was during the rainy season. Should they be expected to remove & replace for each winter event? R&Ring the sandbags for every event would cost $$$ and would have to be passed on to the consumers. And what happens if it rains during an event? Do they put the sandbags out or let the dirt run onto the track and create gullies along the side of the track, or cancel the event because the track is unsafe?

3. The organizers should have seen the sangbags during track inspection and requested LS have them removed before the event took place. Can you imagine the delay this would have caused? I imagine there would be sandbags over in T8 and T9 areas that would need removing too. That could have wiped out 2 hrs of the morning. Then what happens if it rains?

Bottom line is it isn't unreasonable to have the sandbags there. If the rider was freaked out with them, he certainly could have backed off in the areas where there were sandbags. He chose to drive fast thru those areas.

Someone in our club rented our local track during the off season a yr ago. Pit out spits you onto the beginning of the main straight, which is followed by a fairly slow 90 deg turn. On my 1st lap, I was barrolling down the straight and suddenly noticed the brake signs were removed. I realized it after my normal brake zone so I blew hitting the apex but made the corner. The next several laps were used to find visual spots on the track or nearby to locate brake zones. You learn and adapt.

I've driven at Laguna Seca, Kansas Speedway, COTA, and Indy. All of those tracks are fairly wide open when it comes to runoff areas. Several of my club buddies like to go up to Road America for a mid-week 2-day DE in June. I've watched videos from there and it's an old school track with barriers not far off the track. Basically if you go off, you're going to crash. While the track looks like a lot of fun and has some high speed sections, I've chosen not to run there because of the smaller margin for error. The closest I've ever come to having an "off" is running over the water grate inside of T8 at Laguna, but I factor safety into my decisions on where I run. No one is holding a gun to my head saying I have to participate. The same applies to the motorcycle driver.

It will be a shame if this lawsuit ruins track day events. I guess it was a matter of time before someone was able to poke holes in the signed waiver. Personal responsibility is long gone.
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Old 04-06-2018, 08:35 AM   #14
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Tough call. Motorcycles do require unique measures to assure reasonably safe runoff area as compared to cars. Like the hay bales you see at Woodward and temporary circuits. That's part of hosting a MC event. F1 has problems with runoff/curbing becoming part of the racing surface because they were made MC safe, and thus less effective for cars. What many of you are saying is that if the track put a telephone pole in the exit area runoff, drivers should just "know it's there" and not kill themselves on it ?

BTW, that's one of the problems with "track days". They tend to be on a tight budget, and may not have the staffing and safety equipment/personnel of a bigger sanctioned event.

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Old 04-06-2018, 11:17 AM   #15
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What many of you are saying is that if the track put a telephone pole in the exit area runoff, drivers should just "know it's there" and not kill themselves on it ?
Stephen, I don't think that's what we're saying (or, at least I'm not, haha). What I'm saying is that you can argue extremes (like a telephone pole) on either end of the spectrum. But a sandbag placed to divert rain from entering the racing surface is NOT an extreme. The court has already ruled that placement of the sandbag was not negligent, and intimated that in fact it is viewed as a reasonable measure to improve safety. The only thing still in question is whether the track day host was negligent in their decision to hold the event on a track with those known conditions.

Let's ask another illustrative hypothetical: Let's say it was raining. Let's say the track day host (like all of us before him) decided to run the day anyway, because the track will not offer any credit or refund for a rain-out. Let's say you suck at riding in the rain, but you decide to ride that day anyway. Then you crash.

Who's at fault? are YOU at fault? or is the track day host at fault?

I don't see this as substantively different. The responsibility to ride within your limits is yours. beyond that, are reasonable efforts taken to ensure safety? The court has already ruled that the sandbag falls within that category.
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Old 04-06-2018, 11:42 AM   #16
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My point is that what is pretty inconsequential to a car driver can be catastrophic (telephone pole) to a motorcycle. Not the same as your rain example, which should still have reasonably safe runoff areas. Performance driving is never 100% under control, even if it's due to a mechanical failure.
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Old 04-06-2018, 11:58 AM   #17
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My point is that what is pretty inconsequential to a car driver can be catastrophic (telephone pole) to a motorcycle. Not the same as your rain example, which should still have reasonably safe runoff areas. Performance driving is never 100% under control, even if it's due to a mechanical failure.
My friend, a sand bag to a motorcycle is NOT the equivalent of a telephone pole to a car.
As a professional myself, I'd tell you (as many others already have) that Kim was crashing with or without that sand bag. And I can tell you many, many people (including myself) have hit much, much worse on a run out, without crashing.

Could we say that the sandbag contributed to the severity of the accident? Quite possibly. Maybe probably. But it certainly did not cause the accident. Not even a remote stretch of the imagination could make it so. The cause of the accident is quite clearly Mr Kim running off the race track in a manner that was consistent with a crash. As I said below, he blew it. He blew it. He blew it long before he left the racing surface. And the moment he left the racing surface, he determined he was going to crash. You can see it in his failure to control the motorcycle on the asphalt, and his continued failure to control the motorcycle in the runoff. He blew it. He did it.

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Old 04-06-2018, 12:04 PM   #18
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My friend, a sand bag to a motorcycle is NOT the equivalent of a telephone pole to a car.
As a professional myself, I'd tell you (as many others already have) that Kim was crashing with or without that sand bag. And I can tell you many, many people (including myself) have hit much, much worse on a run out, without crashing.

Could we say that the sandbag contributed to the severity of the accident? Quite possibly. Maybe probably. But it certainly did not cause the accident. Not even a remote stretch of the imagination could make it so. The cause of the accident is quite clearly Mr Kim running off the race track in a manner that was consistent with a crash. As I said below, he blew it. He blew it. He blew it long before he left the racing surface. And the moment he left the racing surface, he determined he was going to crash. You can see it in his failure to control the motorcycle on the asphalt, and his continued failure to control the motorcycle in the runoff. He blew it. He did it.

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I hit send too soon, haha.
I'll tell you furthermore, that your comment about still having safe runoff areas even in the rain, is inapplicable. Crashes in the rain rarely happen when you take the run off, because crashes happen on the racing surface in the rain. That's why many of us have trailered motorcycles all over the country, only to leave them in the trailer when we get there, because it's raining. Riding in the rain sucks. Haha.
I think my comparison is quite valid, because what it illustrates is that we, the motorcyclist, the track day participant, take the responsibility to ride in the conditions as they are presented to us. Reasonable precautions are made by the track owner, and the track day provider. The court has already ruled that the sandbag is a reasonable precaution, and that it contributed more to safety than as a hazard. So that question is no longer a question to anyone. Or at least it should not be one any longer.

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Old 04-06-2018, 12:16 PM   #19
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Riding in the rain sucks. Haha.

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Absolutely, totally sucks. And yeah, a telephone pole and a sand bag to divert runoff really are apples and oranges. It will be interesting to see how this plays out.
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Old 04-06-2018, 04:07 PM   #20
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Although I don't ride anymore I did many track days and had instruction - That guy on the vid was way off line and was going to crash anyway - no way to avoid it, it's sand!
The trouble with track days is people with fast bikes (& cars) who do not race and some may not even have had track instruction - it can be scary sharing a track with these people!
I hope this guys lawsuit does not win - it could ruin it for all of us!

It amazes me how the Nurburgring still gets away with it - they even make people pay for the damage when they crash!

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