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Feature Writing
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Bob Pockrass, SceneDaily.com

NASCAR drivers could face legal implications for retaliating on the track

If NASCAR drivers are going to retaliate against their fellow competitors, they might get more than three weeks probation because of it.

They could find themselves in trouble with the law.

Drivers should be aware that if they intentionally wreck another driver and someone is injured, they could face criminal penalties, according to Winston-Salem, N.C., attorney John Morrow, whose firm has represented Richard Childress Racing.

Whether the charges would stick and whether those injured could successfully bring civil claims against the driver is a matter of debate, according to lawyers and educators who follow sports law.
In Georgia for example, the definition of aggravated assault is “with a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”
If Brad Keselowski or a fan had been injured when Keselowski’s car got airborne after intentional contact by Carl Edwards in the March 7 race at Atlanta Motor Speedway, would Edwards’ action fit that assault definition?
“There certainly is a danger out there,” Morrow said. “They’re flirting with lawsuits. They race in about 20 states and every state has different laws. … You can be convicted of assault with a deadly weapon in North Carolina if you intentionally run over somebody.
“And if you kill them, that can get up there in the murder class [of crimes].”
NASCAR requires race tracks to have $50 million in insurance for spectator injury, property damage, participant liability and product liability. Morrow, who successfully represented RCR in getting the life insurance paid on Dale Earnhardt after his death, said drivers should carry insurance to cover civil and criminal claims as well.
While race fans and fellow drivers might be hesitant to file lawsuits against a driver, a local prosecutor in the spotlight would face outside pressures and influences on whether to charge a race-car driver.
“District attorneys are elected officials,” Morrow said. “Politics are part of the game. Let’s say you did something like what happened at Atlanta and even admitted, ‘Hell yeah I did it’ and it was Dale Earnhardt [injured]. Do you think a district attorney might indict you to get votes and publicity?”
It certainly wouldn’t be a cut-and-dried case. Most sports law dealing with intentional contact comes from hockey, where in 2000 Marty McSorley was convicted of assault for striking Donald Brashear in the head with his stick with three seconds left in a game.
But other cases have indicated that even a hard check after the game has ended can be considered part of the sport. In 1998, an International Hockey League goalie tried to sue another player for a check that occurred several seconds after the final whistle. The case was dismissed because the Missouri state court of appeals ruled that “this body check, even several seconds after the whistle and in violation of several rules of the game, was not outside the realm of reasonable anticipation.”
William Bray, a Charlotte attorney who has taught sports law classes at the University of North Carolina-Charlotte, said if Keselowski had been injured and tried to sue Edwards, the Roush Fenway Racing driver would need to be found to be reckless and not just simply negligent.
By competing in NASCAR, a driver consents to a level of contact, much like a boxer in the ring, Bray said.
“Keselowski would have an uphill battle,” Bray said. “Edwards’ attorney would point to 40 or 50 years of NASCAR and say there has been a lot worse that’s happened out there.
“The first thing they would probably do would be to put a big PowerPoint in front of the jury that showed all these statements by the sanctioning body prior to the season about ‘boys will be boys’ and ‘we will let them police themselves.’”
Bray said a driver would be more susceptible to a lawsuit for intentional contact if the driver was coming out of the pits and directly T-boned another driver rather than a push or nudge on the track that leads to injury or death.
“The analysis of this whole case would start with the level and nature of contact with Keselowski,” Bray said. “I don’t think there’s anything exceptional about one driver in racing bumping or nudging another driver. Any resulting damages – from a civil standpoint or a criminal standpoint – the analysis is going to start there.
“Because that contact was relatively unexceptional in the sport, it’s going to be an uphill battle for any claims for anybody.”
Morrow didn’t agree. He said if the intent is clear, a driver is in danger of civil and criminal liabilities.
“You assume a hell of a risk when you drive a race car, but one of those risks is that another driver is not going to try and kill you,” Morrow said. “It’s whether or not [the contact] is intentional, and they very well in this situation stated intent.”
If a driver sued another driver, it wouldn’t be argued whether either assumes the risk of crashing. Instead, it would be argued whether a driver, just by participating in the sport, consents to retaliatory contact, said Mark Conrad, a sports law professor at the Fordham University School of Business.
“In theory, a basic case could be made for an assault but it could be a defense that this is something in the realm of the sport,” Conrad said. “I’m not a big NASCAR viewer. But this [Atlanta wreck] does strike me a little bit beyond that. That’s something that a jury would have to determine. I don’t think it would be dismissed out of hand.”
If a fan were injured and tried to sue, there would be similar arguments on whether the injuries were just the nature of the sport. Tickets to NASCAR races often include a waiver that states the ticket holder assumes the risk by attending the event. That release could help a driver’s defense but wouldn’t guarantee a case would be dismissed.
“It’s basic law in North Carolina, you can’t sign a release to waive an intentional [action],” Morrow said.
Still, NASCAR races are inherently dangerous to attend, Bray said.
“You are assuming some risk in attending that inherently dangerous sporting event,” Bray said. “Before a spectator could look at going after, in this case Carl Edwards, they would have to get past the fact they were attending an inherently dangerous event, they chose to sit close to the track.
“Let’s say they did [get past] that, they would have to prove it was reasonably foreseeable [by Edwards] that when Edwards did it, that they would be injured. With all the safety features in NASCAR now, is that reasonably foreseeable? It would be a question for the jury.”
Conrad agreed and said it would have to be determined if a fan’s injury went beyond what a person could reasonably expect when attending a race.
“It would not be an easy case but it is possible,” Conrad said. “It would be normal contemplation of danger. It’s an up-in-the-air question. I don’t think you could answer that question very easily one way or the other. It would make a very interesting case.
“Fortunately [in the Edwards/Keselowski incident] nobody was hurt.”