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Assuming the risk of Carnivals, concussions and car parts

Common law trial lawyers, judges and juries better remedy for sports and entertainment injury risks than politics

Lady and gentlemen, start your engines! (Lawyers may wish to prepare Summons and Complaints even as spectators assume the risk.)

Less than an hour from now, those most famous words in racing will be uttered sending 43 drivers to the start-finish line for the 55th running of NASCAR’s premier event, the Daytona 500. After rookie Danica Patrick became the first female driver to take the pole position for the Great American Race last week, media coverage of the first Sprint Cup points race of the season has discussed little else (even relegating Junior Nation’s hopes for a return of the 88 car to the Victory Lane he visited in 2004, and that his late father occupied in 1998 before dying in a crash on the last lap of the 2001 race.)

Danica who?

But after up to 33 spectators were injured yesterday when debris traveling at up to 200 mph from what was left of Kyle Larson’s airborne Chevrolet flew through, up and over the “catch-fence” on the last lap of NASCAR’s Nationwide Series opener, we expect the herd media will relegate the risk of 42 men losing to Ms. Patrick on Daytona International Speedway or that Danica will marry fellow 500 competitor Ricky Stenhouse Jr after the race :

One of Larson’s tires ended up in the ninth row of the grandstands and — after his car was cut in half in the wreck — his engine tore through the fence and came to a rest on a walkaway at the bottom of the concourse.

And you thought the assault on cornerback play in the NFL was over for 2013? But at least we’re safe on Carnival cruise lines before shattered MLB maplewood bats again fly into the stands at  Grapefruit League games? No, no and no.

Since before the first foul ball struck a Red Sox fan feeding on Fenway Park frankfurter, courts have been hashing out the limits of premises and tort liability for participants and spectators injured in and at sporting events. In general, players on football gridirons, baseball diamonds and race tracks “assume the risk” of injury and are barred from suing team and stadium owners, coaches, and opposing players for any damages they sustain in competition. We don’t expect the concussion lawsuits against the NFL to alter this general Common Law rule in state and federal courts, but we do fear what politicians and even league commissioners may do to emasculate masculinity from sports as they seek to emulate their nanny state counterparts that have banned jungle gyms from school playgrounds and diving boards from Days Inns, but I digress.

In general, spectators entering a sports area assume the risk of foreseeable risks of flying baseballs, bats and even Goodyear tires, but there could be exceptions to these rules if only Insurance companies would allow a case to reach the highest court of a state or a federal circuit court of appeals. Is it a foreseeable risk that a race car engine will break through barriers improved twice since the first famous airborne (Bobby Allison in 1987) NASCAR incident at Talledega Superspeedway Alabama, after which restrictor plate and other technologies have relegated that track and the other superspeedway in Daytona, Florida as less super (slower based upon highest lap speeds attained since 2000) than shorter tracks in Michigan, Texas, or Atlanta and Charlotte?

This trial lawyer for two decades thinks its best to let judges, juries and the Common Law of England (as hashed out since the days of King Henry II subjected himself to scourging for sins against Archbishop of Canterbury,  Thomas Becket) handle the evolution of “contact” sports, than squeamish politicians seeking lowest common (“chick-i-fied”, i.e. non-Danica) denominator votes for “caring” more about the “children.”

Just as we suggested that it would be better for a patron to sue President George W. Bush for reviewing the latest books on dirty bombs checked out by Mohamed Jones at the local library than to tie the hands of the Commander in Chief in his quest to prevent more 9/11s; so we think it best to Let Men be Men (and Danica be Danica) in America, lest North America be relegated to non-padded football (sans non-goalie hand balls), cricket and Field Hockey.

At least there’s no risk that a criminal will use an illegal gun that scissors or a 9-1-1 call can’t remedy before and after sports events and interstate highways are safe? Right?

Life is risky, but when the rewards could include Dale Earnhardt Jr winning the The Chase, Atlanta Braves the World Series and the University of South Carolina the SEC Championship in the George Dome; this Gamecock can live with it and wouldn’t have it any other way. And at least on Caribbean cruises and Amtrak, common carriers owe passengers a higher duty of care.

Mike DeVine

“One man with courage makes a majority.” – Andrew Jackson

Editor of Hillbilly Politics

Atlanta Law & Politics columnist at Examiner.com

Front page columnist for Liberty Unyielding and Western Free Press

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