By Jack Bradley, Staff Writer
Photo courtesy of pexels.com
Assumption of risk is a common law doctrine referring to a plaintiff’s inability “to recover for the tortious actions of a negligent party in scenarios where the plaintiff voluntarily accepted the risks of those actions.” This doctrine has long been a part of sports that pose a likelihood of injury to its participants. Individuals can assume risk either expressly or implicitly. In some professional sports, athletes assume the inherent risks of the sport by their participation, sometimes including the risks of behavior which does not adhere to the rules. Motorsports is a strangely unaffected exception. While it is by its nature inherently dangerous, there has previously been an assumption of risk doctrine applied to injuries arising out of motorsports.
Motorsports, also known as competitive car racing, is inherently dangerous, with vicious crashes in almost every race. While these accidents would likely be sufficient for a cause of action in the real world, racecar drivers typically assume the risks of the sport both contractually and implicitly. Drivers in motorsports are required to sign waivers distributed by the sport’s governing body. David Holcombe, Risk Manager at International Speedway Corp., stated that the sport “lives or dies by that waiver release.” Holcombe described how the waiver, which must be signed by drivers and their teams, is “an evolving document, but it is a contract, and fortunately for motorsports, most courts have looked at it as a contract.”
Apart from the contractual risk, there is also an implied assumption of risk in motorsports. Similar to the risks posed to hockey players by physical altercations during games, there is a certain degree of assumed risk associated with the competitive racing. However, with hockey fights there is an inflection point at which the action supersedes the implied risk of the sport. This same phenomenon holds true for motorsports. However, the challenge in motorsports is in gauging intent of the drivers. In any traditional stick and ball sport, it is quite easy to tell when conduct deviates from the usual conduct of the sport such that an athlete intends to harm another. In motorsports, it becomes difficult to make this distinction, as even when a driver intentionally crashes another, it is unlikely that they will admit that the move was intentional, and they will certainly not admit to trying to harm another driver.
One of the reasons we have not seen much litigation about the assumption of risk within motorsports is that the industry has been fortunate to have few cases of conduct leading to catastrophic injuries. One case that stands out occurred when NASCAR Cup Series Hall of Famer Tony Stewart ran a driver, Kevin Ward, over during a race when he tried to confront Stewart, subsequently killing him. Prosecutors did not find Stewart’s acts intentional and dropped all charges. However, Kevin Ward’s estate filed a civil action, which Stewart’s legal team attempted to dismiss based on the assumption of risk doctrine. The judge ruled that “the assumption-of-risk as a matter of law argument made by Stewart must be denied because there are genuine factual disputes over whether, and to what extent, defendant’s conduct during the caution period of the race may have unreasonably increased the risk that Ward Jr. assumed.” Stewart later settled with Ward’s estate for an undisclosed amount. This is one of the few examples in which the court did not recognize an assumption of risk within the motorsports setting. This case was peculiar, however, as Ward had gotten out of his car and there was a dispute as to whether Stewart intended to run Ward over.
Given that risk can be implied or assumed with a waiver, the type of conduct required for a driver to be found liable must unequivocally show that the driver intended to injure another, which is difficult to show in motorsports. For example, in the last twenty years of NASCAR, there have been several high-profile incidents where a driver has intentionally crashed another, causing a significant accident. These violent crashes have been a testament to the safety of the cars used in these sports, but how courts are supposed to differentiate between two similar intentional wrecks where one driver walks away fine and the other dies remains unclear.
 Dobbs, Hayden, and Bublick’s Torts and Compensation, Personal Accountability and Social Responsibility for Injury, 9th pg. 369-70.
 https://www.merriam-webster.com/dictionary/motorsport; https://motorracingsports.com/how-often-do-nascar-crashes-happen/