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NASCAR Lawsuits, and Shrapnel Injuries

Potential Legal Action from Injured Fans Lacks Credibility and Basis

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COMMENTARY | The dangers of racing shredded like sharp cheese through a grater during the final quarter mile of the last lap at Daytona International Speedway that frightful Saturday late last month. NASCAR prides itself in a commitment to safety.

But when the #32 Nationwide Series Chevy driven by Kyle Larson went airborne, grinded against the protective catch fence, broke through a crossover gate, and injured 28 spectators with scattershot debris, the popular motorsports series was forced to reevaluate its protection measures -- this time for those in the bleachers, not in the cars.

Could more have been done to better shield the fans? And, perhaps more important, can this tragic episode provide any lessons moving forward to improve spectator safety?

NASCAR is sparing no resource to answer these questions, staying true to a pattern of safety diligence under company president Mike Helton, who took the top job during the darkest time in NASCAR history when crashes killed drivers Kenny Irwin, Adam Petty, Tony Roper and Dale Earnhardt in a 10-month period from May 2000 to February 2001.

Helton has taken much criticism in his 12-plus years as president, mainly for the strategies he adopted to try and introduce his sport to fresh regions such as California, Kansas City and Las Vegas at the expense of race dates at Darlington and Rockingham in the Southeast, the birthplace of stock car racing.

Hyperactive expansion aside, Helton earns high marks for his prompt handling of safety initiatives, including his thorough and transparent investigation of the recent Daytona crash and spectator injuries.

But the debate continues to burn during NASCAR's ongoing fact-finding mission on where accountability belongs for the spectator injuries.

The answer is easy: Let the ticket buyer beware.

With 43 machines, weighing nearly 3,200 pounds apiece, racing inches apart at about 200 mph, the inherent dangers for both fans and drivers are quite obvious, especially at super speedways like Daytona and Talladega where cars routinely take flight.

But for those fortunate enough to stand near the catch fence and just a few feet from the on-track action, those deafening sounds, stinging smells, and eye-burning fumes are an easy tradeoff to any potential injury risk. But the thrill of proximity and sensory overload also carries an increased threat of injury.

Risk brings reward in racing for both spectators and drivers. So for some of the fans injured at Daytona -- the same ones who assumed the clear and present dangers of sitting so near the track -- to threaten legal action is nothing more than financial opportunism that shouldn't even be considered in court, or settled out of it.

The basis for a credible lawsuit is negligence. And commonsense alone confirms that an on-track accident, in a high-speed event, among heavy machines doesn't rise to negligence -- it rises to racing. But avariciousness and opportunity is a dangerous combination, and lawsuits are the typical byproduct.

William Bray, a Charlotte-based sports attorney and authority on motorsports legal issues, said in an article on aol.sportingnews.com that there are no ifs on whether litigation is coming, only when it will arrive.

"High-profile cases like this," Bray said, "there will be lawsuits filed." … And each of them should be promptly dismissed.

NASCAR and/or the speedway should help reimburse the injured fans for medical bills, lost wages, and perhaps some reasonable pain and suffering, but not for the exorbitant amounts that these lawsuits typically command, especially given NASCAR's terrific safety record since Helton took over before the start of the 2001 racing season.

According to data compiled by the Charlotte Observer, in the 11 racing seasons from 1991 to 2001, nine drivers have died in NASCAR's top three series -- Sprint Cup (5), Nationwide (2), Craftsman Truck (2). In the 11 seasons from 2002 to 2012, there were no deaths.

From mandating head and neck restraining (HANS) devices and multi-point seatbelt harnesses for all its drivers, to adding the SAFER barrier shock-absorbing soft walls and "cocoon" style driver's seats, NASCAR's safety consciousness under Helton's leadership has been unmatched on the track and in the cockpit.

And like any racing accident or tragedy, more safety lessons need to be learned outside the walls and fences after the Daytona incident, and perhaps some consideration to better protect spectators is prudent, as an opinion piece in the Charlotte Observer points out. Moving fans further from the action and raising the catch fences are just two suggestions.

But fan and driver protection is an evolutionary process, and future safety improvements do not necessarily indicate past negligence, nor do they pave the way for lifetime wealth from frivolous lawsuits.

Todd Burlage lives in South Bend, Ind., where he covers automotive news for Wheelbase Communications and University of Notre Dame athletics in print, online and on radio for a variety of media outlets. His automotive stories have run in print and on websites throughout North America, including on newsday.com.

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