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08/11/12
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Could NASCAR, Pocono Raceway face lawsuits over fatal lightning storm?
Whether Pocono Raceway or NASCAR will face legal challenges after one fan was killed and nine others injured following last week’s Pennsylvania 400 remains to be seen. It’s certainly possible, although the chance of a victim winning a lawsuit based on negligence is uncertain.

“You can’t sue God, (and) it’s an act of God,” said Philadelphia-based personal injury attorney Jeffrey Reiff. “The issues raised are if they knew or should have known of severe weather or thunderstorms in the area, whether they had a duty to warn spectators or put them in a safer facility.

“The people that are at that track are classified as business invitees and it could be argued that they’re owed the highest duty of care. Owners or people that own land and invite the public to their premises to watch a game or for business can be liable if they breached a duty to those people.”

Pocono Raceway did not respond to questions about their legal liability from the tragedy and a NASCAR spokesman declined comment.

NASCAR requires tracks to have $50 million in insurance to cover spectator injuries, according to the standard NASCAR sanction agreements filed by Dover Motorsports as part of its Securities and Exchange Commission requirements. That policy likely would cover any lawsuits filed.

“One of the interesting issues in the case will be who has that duty (of care)?” said Michael Moreland, vice dean of the Villanova University School of Law. “Is it NASCAR, the owner of the race track?

“They owe a duty of care to warn people about that and take reasonable steps to prevent them from being injured. … The plaintiffs will still have an argument that you have a duty as a premises owner to take steps to prevent an injury even from acts of God.”

Shaun Crosner, an attorney with Dickstein Shapiro in Los Angeles, represents venue operators in obtaining insurance coverage and in lawsuits if the insurance company is unwilling to grant the claim.

“A lot of times when you have what’s referred to as an act of God, liability is very uncertain and generally spectators injured by acts of God have trouble recovering against venues or leagues or anything like that,” he said.

“But that doesn’t mean that they’re not going to try. There might be a lawsuit stemming out of this event. You just don’t know. There certainly is a chance.”

Reiff said the issue would come down to what track and NASCAR officials knew and when, and whether the track gave fans enough warning. A severe thunderstorm warning was issued at 4:12 p.m. and the track posted a notice of severe weather on Twitter at 4:21 p.m. The race was stopped at around 4:43 p.m., declared official about 11 minutes later and a lightning strike that injured nine people and killed 41-year-old Brian Zimmerman hit at 5:01 p.m.

Pocono Raceway officials said Sunday that an announcement went over the public address system as the race was being halted, but said they were going to review the exact timeline. Lightning could be seen in the area before the race was stopped.

“When you invite somebody into your place of business, you owe them the highest duty of care and how far we extend that duty is always a question for the jury,” Reiff said. “What would the reasonable man have done under the circumstances? … Did they warn the people? The issue (could) come down to is Twitter a reasonable measure to warn, is that good enough?”

Reiff said he did not believe any waiver on the back of a ticket would hold up in court, but Crosner said it is possible that could help NASCAR or the track prevail.

“That goes into the whole issue (of) whether can you force people, as a condition of buying the ticket, to waive liability,” Moreland said. “The general rule there is that people do not waive liability for negligence on part of the premises owner.”

The other issue would be that fans could see the lightning, so did they make a conscious choice to put themselves in jeopardy?

“That will go to the steps of reasonableness—if you are a premises owner in a case like that, can you rely upon the fact that everybody knows that the lightning is coming through as a way of saying that you don’t have to do anything to prevent harm to those who are on your premises,” Moreland said.

“Crudely put, that will be the defense’s argument—that they didn’t have to do anything or they did what they needed to do.”

There does not appear to be much case law as far as lightning strikes at sporting events where spectators are injured. Moreland noted that football games often are stopped for lightning, a sign that reasonable care is being taken to protect fans.

“All of those accidents, you really have to look at the particular facts in each situation,” Crosner said. “There are a lot of variables here and it’s hard to predict at this point whether there will be any lawsuits generated out of this accident.” Sporting News

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