ORLANDO, Fla. — The attorney for three NASCAR fans injured last weekend during a race the day before the Daytona 500 says they are exploring a possible lawsuit, but some experts say they could face tough obstacles in winning damages.
Matt Morgan, the Orlando-based lawyer for the fans, said at a news conference Tuesday than any suit would focus on the safety fence used along the track at Daytona International Speedway. He said he hopes to reach a settlement with NASCAR to avoid a lawsuit.
More than 30 people were injured last Saturday after a horrific wreck in a second-tier NASCAR series race sent chunks of debris, including a heavy tire, into the stands. Morgan declined to provide the identities of his clients, but said two of them were seated directly in front of the crash and sustained injuries ranging from a fractured fibula to abdominal swelling. All have been released from the hospital.
Some experts say there could be grounds for a lawsuit, and that courts have looked past liability waivers written on the backs of sporting event tickets. Others maintain the ticket is a legal contract that could be hard to overcome in court.
"Ultimately, I believe it would be gross negligence," Morgan said. "We all know that when you go to a race you assume a certain amount of risk. But what people don't assume is that a race car will come flying into the stands... That's why they make the fences."
Asked to comment on the fans' retention of a law firm, NASCAR spokesman David Higdon wrote in a statement, "We are unaware of any lawsuits filed."
Daytona International Speedway is owned by International Speedway Corp., a NASCAR sister company. Spokesman Andrew Booth said, "As per company policy, we do not comment on pending litigation."
Donnalynn Darling, a New York-based attorney who has been practicing personal injury law for 30 years, said there is a theory that a spectator who buys tickets to a sporting event assumes the risk of objects coming out of the field of play, such as a foul ball at a baseball game.
But she said there is also a foreseeable risk question that promoters of events also accept.
"Did the sporting event promoter take action to prevent that specific risk?" Darling asked. "In terms of this fence...it was put up to prevent people from being hurt. You have people who were not only injured by falling debris, but by the failure of the fence."
Others say such restrictive clauses on the back of tickets are generally disfavored by Florida courts.
"If it's just something written on the back of the ticket and not called to the attention of the person purchasing, there's reason to believe many courts in Florida won't hold that they consented efficiently," said University of Florida emeritus law professor Joseph Little.
Still, Paul Huck, an adjunct professor at the University of Miami School of Law, said contract law could take precedence.
"A ticket to one of these events is like a contract — and its provisions limiting liability are generally enforceable," he said. "We enter into these types of contracts on a regular basis, and we often don't give it a second thought that we may be limiting or even giving up certain legal rights when we do so."
Darling also said that the fence's manufacturer at Daytona would likely be "very much responsible" because of it being foreseeable that debris could go through a fence that has holes in it.
That seems to be theory that Morgan is adopting. He referenced a 2009 crash at NASCAR's racetrack in Talladega, Ala. in which a car that launched into the catch fence sent debris into the stands and injured several fans.
"At that point in time a group of engineers got together and they said 'It's time for us to manufacture a safer fence,'" Morgan said. "To my knowledge, that was done. But what we have to investigate at this point in time is what was done...If you can ever point to monetary considerations being put ahead of people, then there's a big problem."
Darling predicted that NASCAR would try to settle with the injured fans.
NASCAR "had an obligation to protect the fans that are so loyal, and it is bad from a public relations standpoint," Darling said. "So they're going to do something."