NASCAR and Wrongful Death claims

http://www.reuters.com/article/2015/08/10/nascar-stewart-lawsuit-idUSL1N10I2KL20150810

You’ve undoubtedly heard about this.  Last year, at a lower-level, non-NASCAR event, NASCAR driver Tony Stewart ran into a fellow driver who was out of his car at the time, killing him.

The family of the deceased 20 year old driver have filed a wrongful death claim against Tony Stewart in New York.

Of course, jurisdictions differ, so I can’t really give you any insight as to how this case will go up there.  But I can tell you that in North Carolina, I don’t see how this one survives.

This is a blog post, by the way, not a Law Review article or anything fancy, so I’m just hitting up some random points about this case, were if filed in North Carolina, that I find interesting, and you might, too.  Enjoy:

• It is noted in the article that there is an allegation that Stewart acted with, “wanton, reckless and malicious intent and negligence.” There are three separate allegations there:  He was acting negligently, he was acting with intent to kill him, or he was acting recklessly, or in our parlance, “grossly negligent.” But which one was it?  Good luck proving intent.  Short of Stewart admitting he swerved to hit him, I don’t see how you do that.  As for negligence and gross negligence, he’s driving a race car on a race track in a race.  How is he supposed to anticipate another driver walking on the track?
• North Carolina is a contributory negligence state, so if the plaintiff is found to be even 1% at fault in causing his injuries, he gets 0.  If they are alleging negligence, then contrib is a defense.  The fact that the decedent appeared to walk towards and point at Stewart shows that he wasn’t really acting reasonably to preserve his own safety; the fact that he tested positive for marijuana in an amount signficant “enough to impair judgment” makes it even less of a good look for the decedent.
• North Carolina typically doesn’t allow Assumption of the Risk as a defense.  However, it can be allowed in the course of “inherently dangerous activities.”  I’m gonna go out on a limb and say that racing cars fits that description.
• Stewart is the only defendant named.  In every description I’ve heard of this event they’ve described the track as “dark” or “poorly lit.”  Why not name the track?  Couldn’t they be at least partially to blame?

These are just a few thoughts about why I think this case wouldn’t fly in NC.  That doesn’t mean it won’t fly in NY. Who knows?  In the end, I would imagine that they will reach some sort of settlement given how much Tony Stewart is worth; he may not want to risk some sort of “punish the millionaire” type of verdict.

Would I have taken this case?  That’s a hard question to answer.  But if you have one like it, you should definitely call me.