How NASCAR’s Efforts After Daytona Nationwide Crash Will Impact Litigation

On February 23, at least 28 spectators were injured after a crash during a Nationwide Series race at Daytona International Speedway sent debris flying into the crowd.  Since the crash, NASCAR has reportedly begun investigating what mechanisms led to the crash and subsequent spectator injuries.  To do this, NASCAR is not only working to reconstruct driver Kyle Larson’s car, but is also working with fencing experts to determine how the track’s fencing may have played a role in the number of fans injured.

Hearing that NASCAR is taking these measures may have caused the injured spectators’ ears to perk up.  Reports indicate that numerous injured spectators have consulted with lawyers over the possibility of suing NASCAR for the injuries they sustained.  These individuals may believe that subsequent measures taken by NASCAR to improve the fencing around Daytona International Speedway may bolster any case they have against racing’s governing body.  However, such is not the case.

Given the amount in damages that potential litigants will likely demand against NASCAR, it is likely that a lawsuit would be filed in federal court.  Thus, the federal rules of evidence would apply.  The rule at issue here is Rule 407:  Subsequent Remedial Measures.  Notably, Florida’s state rules of evidence has a similar rule, Florida Statute § 90.407.

Rule 407 provides:

“When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction.  But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.”

In the case of potential lawsuits injured spectators may file against NASCAR, Rule 407 is notable.  Any lawsuit filed against injured spectators will more than likely include a claim of negligence.  This negligence claim will expectantly be based in part on an argument that not having higher fences at the racetrack was negligent on NASCAR’s part.  Should NASCAR in the coming days or months take the subsequent remedial measure of heightening the fences, potential plaintiffs could not use evidence of those measures to show that NASCAR was negligent in this instance.

From NASCAR’s perspective, the existence of Rule 407 is beneficial.  It is beneficial because NASCAR can make the necessary improvements to Daytona International Speedway in the wake of the crash without fearing that doing so will improve plaintiffs’ likelihood of success in litigation.  It is for this reason that Rule 407 exists.  However, as noted by the exception to Rule 407, plaintiffs will still likely raise any adjustments to Daytona International Speedway made by NASCAR in the wake of the accident during the course of litigation.  Most likely, plaintiffs will raise evidence of any subsequent remedial measures to negate any argument that such measures were impossible to complete.

Analysis of this small issue goes to show the battle that NASCAR stands to fight after the February 23 crash.  Not only must it evaluate the cause of the crash and research measures that could better protect fans, it must consider how those measures may impact its looming court case.  Thus, it’s safe to say that NASCAR’s lawyers will be putting in heavy hours in the coming months.

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