August 20, 2001 -NASCAR Leaves Safety to Drivers
After a car tire flew into the stands, killing three spectators and injuring eight others at a North Carolina speedway in May 1999, NASCAR acted quickly. Even though the accident was not at a NASCAR event, the stock-car racing organization had teams testing wheel tethers within three weeks. A month after that, the league mandated cabled wheel and hood restraints to prevent car parts from flying off. But when three NASCAR drivers died of head injuries in 2000, NASCAR did little. Only after the Feb. 18 death of racing icon Dale Earnhardt did the sanctioning body launch a probe into driver safety.
The resulting report -- expected to be released Tuesday in Atlanta -- may or may not impose substantive new safety-equipment requirements on drivers. If it does, it will herald a major shift in the way NASCAR has done business for decades.
One reason NASCAR historically has acted so quickly to protect fans but so slowly to protect drivers is its fear of liability -- and being sued for negligence.
Courts generally agree spectators have a reasonable right to be protected from injury and death at motorsports events. Drivers are a different story: They sign waivers absolving tracks and racing leagues of liability, agreeing to assume the risk. And some legal experts say adding safety rules for drivers would only muddy the waters, implying that NASCAR does accept some responsibility. In lawsuits, such rules could be twisted around to be used against NASCAR. "NASCAR takes the approach they leave the responsibility with the driver," said Carl Olson, a former drag-racing champion and ex-National Hot Rod Association vice president who handled risk-management matters for 25 years. "Virtually every other racing organization that I'm aware of says the participant is not in the position to make that decision. They believe sanctioning organizations are in a much better position to obtain information on safety."
NASCAR officials would not comment for this story. But the organization's rule book is clear: It's driver beware. For years, NASCAR -- noted for its secrecy and dislike of outsiders looking over its shoulder -- has stood apart from its racing brethren such as the Championship Auto Racing Teams, the National Hot Rod Association and the United States Auto Club.
Unlike those organizations, NASCAR does not:
Mandate driver-safety equipment with minimum standards rated by independent testing laboratories such as SFI Foundation or the Snell Memorial Foundation. NASCAR also is the only major racing group that is not a member of SFI, which writes safety and equipment standards and inspects failed equipment in accidents.
Make its rule books public. NASCAR rule books are available only to NASCAR members. The other organizations either post rule books on the Internet or make them available for sale to the public. Share crash and racing-injury data with the International Council of Motorsports Sciences to improve safety.
RULE BOOK PROTECTS NASCAR
Industry officials say a racing organization's rule book is a reflection of its personality -- and the philosophy of its liability lawyers. And NASCAR's is ultraconservative.
The league's 2001 rule book is rich in liability disclaimers involving safety, equipment and racing rules that are exempted from lawsuits. The message is clear, written in capital letters in the preface: "EXPRESSED OR IMPLIED WARRANTY OF SAFETY SHALL NOT RESULT FROM PUBLICATION OF, OR COMPLIANCE WITH, THESE RULES."
That type of broad disclaimer is typical in the rule books of other racing leagues. But NASCAR's rule book goes on to stress that stock-car racing is "an inherently dangerous sport" in which competitors not only assume the risk of injury or death but "are required to advise their spouses and next of kin, if any, of this fact." "Although safety generally is everyone's concern, NASCAR cannot be and is not responsible for all or even most.phpects of the safety effort," the rule book says.
Underlining the hands-off approach is the brevity of another section of the 73-page book specifying safety equipment for drivers. It's less than a half-page long -- slightly shorter than the section devoted to the "decals and advertising" display provisions for cars. Interviewed by the Orlando Sentinel in 1994, NASCAR Chairman Bill France Jr. said his organization's rule book did not take a leadership role on safety because he feared lawsuits from racing accidents. He agreed other racing leagues faced the same problem, but chose to deal with it differently. "They have their legal advisers; we have ours," France said. "You put what you can in there so, if you wind up in court, you can put your best foot forward."
France said mandating equipment such as fire-retardant suits for drivers would be difficult to enforce, and courts would later require NASCAR to mandate them. He said they did not agree to share injury data with the International Council of Motorsports Sciences because "it sounds like a fish pond for plaintiffs' attorneys."
The less-is-more rule-book strategy may have served NASCAR well. Thirty-three drivers have died in a half-century of competition in NASCAR's national circuits, including Winston Cup, Busch and truck series. Yet racing-industry lawyers say they are unaware of any major dollar judgments returned against NASCAR or International Speedway Corp. tracks in recent years. Both are controlled by the France family of Daytona Beach. The driver-liability waivers were key to NASCAR's successful defense against three negligence lawsuits brought by families of late drivers Rick Baldwin, Clifford Allison and J.D. McDuffie since 1991. As added protection, ISC and other track owners in states such as Florida and North Carolina have pushed successfully for laws making it more difficult for drivers, crews and visitors in restricted areas to win negligence lawsuits.
A legislative analysis done on the 1991 Florida law stated that the racing industry spent $800,000 defending itself against a reported 537 lawsuits filed nationwide during the previous two-year period. But insurance officials say most litigation against NASCAR or track owners is from routine spectator lawsuits involving fans who slip and fall or have fender-benders in parking lots. Most are similar to lawsuits filed against shopping malls.
Cary Agajanian, a Los Angeles motorsports-defense lawyer who has represented NASCAR and other racing leagues during the past 30 years, defended the league's approach of giving drivers autonomy in selecting safety gear. "If you add up all the laps and all the miles raced, I really think they've had an excellent safety record," said Agajanian, also a co-owner of a NASCAR Busch team. "Overall, they work very hard at their safety."
FAN SAFETY COMES FIRST
No spectators have ever been killed as a result of an on-track accident in a major NASCAR race, league officials said. In July, one spectator was killed and 11 were injured when two cars went into the stands at a small, NASCAR-sanctioned race in Ohio.
Over the years, NASCAR's national circuits have enacted tougher controls on the cars such as fire-resistant fuel cells to restrict flames from being tossed into the crowds, and restrictor plates and aerodynamic flaps to slow down cars and keep them from flying off the track -- and into court. NASCAR began requiring hood and wheel tethers after the fans were killed by flying debris at an Indy Racing League event in 1999 at Lowe's Motor Speedway in North Carolina. That accident followed the deaths of three fans from an airborne tire at a 1998 CART race in Michigan, and injuries to two spectators at the 1997 Daytona 500 when a hood flew off a Winston Cup car. Such cases typically are settled out of court.
To protect themselves from spectator lawsuits, according to industry officials, NASCAR and other major racing organizations and track operators buy liability insurance ranging from $20 million to $100 million from a pool of major underwriters or a consortium such as Lloyd's of London. When it comes to safety inside the cars, NASCAR takes a back seat. NASCAR says it's the driver's decision if he wants to wear a top-rated Snell or SFI helmet, a Simpson six-point seat belt, fireproof clothing or a head-restraint device. Most drivers wear the best equipment available, and some are even doing their own research into seats and head restraints.
NASCAR only generally "recommends" driver equipment, compared with other leagues that require fire-resistant clothing, top-rated helmets and seat belts that must be replaced every two or three years. CART requires drivers to wear head-and-neck restraint devices on all oval tracks and recommends them for other races. Some experts say such devices can be lifesavers that prevent the violent head-whip motion in crashes such as the one that killed Earnhardt.
NASCAR recommends helmets with a much-less-stringent rating from the U.S. Department of Transportation or American National Standards Institute. NASCAR now recommends -- but does not require -- head-restraint devices. Steve Johnson, general manager of the nonprofit Snell, which has tested helmets for 40 years, said U.S. Department of Transportation and ANSI helmet standards and testing are the lowest in the United States. "We deal very little with NASCAR," said Johnson, whose group works with other racing leagues, inspecting helmets damaged in racing accidents.
NASCAR requires seat belts in Winston Cup cars be replaced at least every five years. Other leagues require belts to be replaced after two years, in part because belt manufacturer tests in Florida in the 1980s showed repeated use and exposure to sunlight can degrade them, said SFI President Arnie Kuhns. The rule books in several other racing leagues -- notably CART and the National Hot Rod Association -- have graphics or strict mounting details and angles for seat-belt placement. NASCAR's book has provided fewer illustrations over time. Seat and seat-belt diagrams that were in the rule book in the mid-1980s have since disappeared.
Ted Bendelow, a Denver motorsports-law specialist who has advised several racing organizations during the past 25 years, said NASCAR has differed from others by setting the bar on safety guidelines "at the lowest level." That approach, while successful up to now, might one day catch up to them in court. "It's the ostrich approach," Bendelow said. "You stick your head in the sand and hope the problem goes away."
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