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02/26/13
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Injured fans to sue Daytona Speedway  Three spectators injured by the wreck at Daytona International Speedway have contracted with the personal injury law firm of Morgan and Morgan, and four more have made appointments, firm founder John Morgan said Monday.

Morgan said of the three under contract, one has a broken leg and another has a head injury. He was checking with his firm on the third person's injuries. None of the injuries of those seeking legal help with the firm were life-threatening, he said.

A Speedway attorney said he would not comment on possible litigation.

"We have not received any representation letters. We will not comment on any litigation, pending or threatened," said Brett Scharback, vice president and deputy general counsel for International Speedway Corp., which operates the Speedway and a dozen other tracks across the country.

The potential legal fight to come will involve the "assumption of risk" when someone attends a sporting event, whether it's a race at the Speedway or a basketball game with players driving toward the hoop, said Morgan of Ponce Inlet, whose firm has offices in four states.

"When you go to a sporting event, if you are underneath the basket that's where your seat is and Shaquille O'Neal comes after a loose ball and dislocates your shoulder, you sat there knowing that was a risk," Morgan said.

But Morgan said in the case of the Speedway fans, they expected the fence to keep them safe when Kyle Larson's car slammed into the wall near the finish line of the NASCAR Nationwide Series DRIVE4COPD 300 on Saturday. The car broke apart, spraying a car tire and debris through a 22-foot grandstand fence into the crowd. At least 28 fans were injured.

"This case here is going to be different," Morgan said, "because the fans who were sitting behind that fencing did not really assume a risk like you would think, because they were assured that fence could weather anything coming through it."

The issue will be how strong and how high the fence should be, Morgan said. He said NASCAR probably would ask the fence manufacturer to contribute financially to any payouts the Speedway must make.

Morgan said he thanked God that there were no fatalities.

"And I do know that the France family, that safety for their patrons and spectators, is goal number one," Morgan said. "And I know that they are not taking this lightly and I know that there will be upgrades and repairs made for the next race."

Luis Gracia, an attorney with Port Orange personal injury firm Rue, Ziffra and Caldwell, said his firm has filed lawsuits against the Speedway before. One was a slip and fall, and the other was a woman who was run down by a golf cart. The cases were settled before going to trial.

Gracia said he faced the legal hurdle of a release printed on the back of the NASCAR ticket.

"It's on the ticket," Gracia said. "It's one of the conditions of you going into the venue. The ticket puts you on notice that basically you are buying the ticket and entering the venue contingent that you release them from any and all claims."

The ticket has this disclaimer, according to Speedway spokesman Andrew Booth: "The holder of this ticket expressly assumes all risk incident to the event, whether occurring prior to, during or subsequent to the actual event, and agrees that all participants, sanctioning bodies, and all employees, agents, officers, and directors of Daytona International Speedway, its affiliates and subsidiaries, are hereby released from any and all claims arising from the event, including claims of negligence."

Some courts have upheld such a release while others have not, Gracia said. The Speedway raised the issue of the release in his cases, Gracia said.

"The issue of the release of all claims is ever-present," Gracia said. "As a plaintiff's attorney I'd be liar to say that I was not concerned by it."

Gracia said no one pays attention to the disclaimer.

"Who in the world reads that," he said. "Nobody goes over the ticket and yet it's there." Daytona Beach News Journal

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