Translation
https://www.revzilla.com/common-tread/c ... lub-racing
https://youtu.be/DsnDOOk33RYMark Gardiner wrote:Mar 30, 2018
After operating track days for 16 years without a lawsuit, Lance Keigwin sold his Keigwin’s At The Track business in January of 2015. The new owner, Szymon Dziadzia, put on his very first event the following March, at Laguna Seca.
That very day, Daniel Kim ran his Ducati off the track, crashed, and sustained serious injuries. That was bad luck for Kim—and Keigwin’s, because Kim lawyered up and went after Keigwin’s, among others. (Kim is also the CEO and chief promoter of an EV startup called Lit Motors.)
The implications of Kim’s lawsuit, which is scheduled to come to trial soon, extend quite a bit further than K@TT. His lawsuit could raise insurance costs for track day operators and amateur racing organizations. It may already have discouraged some specialty insurance companies from covering track days at all.
At this point, if you’re like me, you’re wondering, what about the waiver? I’ve signed hundreds of them over the years at track days and races; I still sign them whenever I attend a product launch; I have to sign them even if I’m just covering races as a journalist. I’ve always assumed that by doing so, I waived my right to sue manufacturers, organizers, and tracks in the event I got hurt (which has happened!).
Didn’t Daniel Kim sign a waiver? Yes, he did. He’s suing anyway. If he prevails, his suit may increase legal liability—and costs—for anyone organizing an inherently risky event.
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Due diligence
In the course of researching this story, I spoke to track day operators, club racing officials, and lawyers. Perhaps unsurprisingly, some of them asked to speak off the record. I tried to reach Mr. Kim through his company’s web site, but got no response. I called Naughton Insurance, K@TT’s insurer at that time, and Lori Taylor, Vice President of Claims, declined to comment.
I spoke to Szymon Dziadzia, the guy who bought Keigwin’s At The Track from Lance Keigwin in January 2015 and Leah Carter, who is currently a manager at Keigwin’s. Lance Keigwin (who was present at the track that morning, helping out the new owner and managers) spoke to me at length about track day operations. So did Dustin Coyner, who owns Track Dāz, which is a longstanding track day operation in Southern California.
Kim’s lead litigator, Sarah London, was a helpful and forthright source. Szymon Dziadzia’s lawyer is Stephen Hewitt; I had a friendly conversation with his assistant, but Mr. Hewitt did not return my call.
The case
Daniel Kim ran off the track at the exit of Laguna Seca’s turn five, and his trajectory took him into a small sandbag—one of many placed around the track by track staff, in order to direct runoff (by which I mean rainwater, not riders who run off the track!). Kim crashed violently, breaking his femur.
The sandbag is one of the central issues in Kim’s lawsuit, which alleges gross negligence on the part of Keigwin’s.
Kim hired a serious San Francisco law firm—Leiff Cabraser Heimann & Bernstein. Leiff Cabraser et al assigned the case to a lawyer named Sarah London, who has a record of exacting big payments from powerful opponents. (She got a $3 million judgment from RJ Reynolds Tobacco for the family of a Florida smoker who died of lung cancer.)
Keigwin’s business manager, Leah Carter, told me London’s first salvo came in the form of a letter demanding nearly $15 million, which was immediately rejected by their insurer (Naughton Insurance, a Rhode Island insurance company with a lot of motorsports experience.) Kim’s lawyers then cut their demand roughly in half. That was still more than Keigwin’s $5 million in coverage.
That led to a lawsuit that named Keigwin’s, Laguna Seca, SCRAMP (the non-profit that administers the track), and Monterey County (which owns the track and the land it sits on) as defendants. You’d better do some warm-up eye rolls now, because Kim’s lawyers even went after Mazda, the track’s title sponsor at the time. Naughton Insurance—the company on the hook for the first five million extracted from K@TT—suggested that Dziadzia hire Hewitt & Truszkowski. One of the partners, Stephen Hewitt, is also a motorcyclist, lecturer, and author; he literally wrote the book on sports waivers.
London told me that under California law, Kim could sue even though he’d signed the waiver because in their opinion the presence of the sandbag constituted gross negligence.
In December 2017, Kim’s case came up in Monterey County Superior Court for the first time, when lawyers for the defendants argued that the suit should not be heard at all. Andrew Swartz, a lawyer for the track, explained that the sandbag was there to prevent erosion problems and reduce overflow onto the track—effectively, it was there to reduce risk, not increase it.
Judge Thomas W. Wills granted a motion for dismissal by the track, SCRAMP, and Monterey County and he ruled that Mazda, in its role as a sponsor, had no involvement. Lieff Cabraser filed an appeal of that dismissal, which will not come up for years. But—more bad luck for Keigwin’s—Judge Wills decided that Kim’s lawsuit against Keigwin’s could go to trial. London told me the case will be heard in late May and could take two to three weeks.
Lance Keigwin, now retired, spent seven hours being deposed by one of London’s assistants. Over the course of his deposition, he learned that the judge’s assessment hinged on a clause buried deep in Keigwin’s contract with Laguna Seca, which said that the renter had the right to examine the track before using it. So while the judge ruled that the placement of the sandbag itself was not grossly negligent, Keigwin’s may have been negligent in failing to inspect the track and notice the sandbag; it could have either had the sandbag moved or, perhaps, mentioned it in the riders’ meeting.
The crash
Kim’s crash occurred while he was riding his 2013 Ducati Panigale 1199, about 10 laps into an afternoon session, on the exit of Laguna Seca’s turn five, a long, fast third-gear left that leads onto an uphill straight. Fortunately, Kim’s crash was captured on video.
That video was shot with a rear-facing GoPro mounted on a motorcycle about 100 yards ahead of Kim. The motorcycle behind the camera bike passes through the turn with no problems. The rider after that is Daniel Kim. Kim has stated elsewhere he took evasive action to avoid a slower rider, but the video appears to show he had ample room to pass without leaving the racing surface.
Dustin Coyner has been operating track days of his own since 2000. He’s also an expert-licensed club racer and an instructor at the Yamaha Champions Riding School. I asked him for his opinion on the Kim crash video.
“I see a lot of things,” Coyner told me. “He turned in early. He missed the apex. At one point in the corner it looked like he had the correct lean angle but then he suddenly changed angle. He didn’t finish the corner even though he could have, and he ran off the track. Had the dude just stayed on the riding surface, on the trajectory he was on before, he’d have been fine.”
“Running off the track is a mistake a lot of riders make, because they think that runoff means they can make a mistake and just let go of everything and run off,” Dustin added. “But the reality is, when you leave the riding surface, anything can happen.”
Lance Keigwin is on the same page. “I’ve told countless people, ‘Don’t give up, look where you want to go. You’ll surprise yourself’” He chuckled as he recalled, “I’ve been in that situation many times, and thought, ‘That was fun, I just learned something.’ But there are people who give up, stand it up, and try to ride it out.”
I’m no lawyer (if I was, I’d probably have nicer bikes!), but it seems to me that since a judge has already ruled that the presence of the sandbag, per se, did not constitute gross negligence on the part of the track, Kim’s suit hinges on Keigwin’s responsibility to warn him about the sandbags.
This brings up the riders’ meeting. In a text exchange with me just before I posted this story, Dziadzia confirmed something I’d previously been told off the record—that Kim didn’t arrive at the track until after the riders’ meeting on that morning.
If I was defending Keigwin’s, I’d put Kim on the stand and ask him, “Are you saying you should have been warned about the sandbags? You’ve been to a lot of track days; isn’t it true that the time to issue such warnings is at the riders’ meeting? If the sandbags had been mentioned in the riders’ meeting, would you have been there to hear it?” And, “Since the crash happened 10 laps into an afternoon session, didn’t you have ample opportunity to see the sandbags yourself?”
Why are the sandbags even there?
Two words: topography and climate. One reason Laguna Seca is a great race track is its 180 feet of elevation change. The weather’s good, too; in the peak season, from June through September, the track receives less than a quarter of an inch of rain per month. The downside to those sunny summer afternoons is that there is not much vegetation around the track to slow runoff in the rainy winter months.
Erosion’s a problem on the long hill between turns five and six and elsewhere. The track has an underground drainage system to reduce the amount of water and debris carried onto the track. The sandbags (which have been deployed every winter for decades) help to channel that water.
Andrew Swartz convinced the Monterey County Superior Court that the sandbags were there “to improve safety.” That’s true insofar as the sandbags help to prevent water and debris from flowing onto the track in a wet session and they certainly help to limit the effects of erosion which, over time, would make the runoff areas more dangerous. (As it is, there’s a little gully visible in the Kim crash video, and I’ve spoken to a few people who think he would have crashed with or without the sandbags.)
That’s all true as far as it goes, although I’m pretty sure the bags are removed for major races (scheduled in the dry season). In Kim’s limited defense, all else being equal on a dry day, it would have been better to remove the sandbags. But I doubt Laguna Seca’s small track staff would or even could have removed them on short notice. And, if it had rained—a very real possibility in March, which averages over three inches of rain—the absence of sandbags might’ve rendered the track unusable.
Will there be unintended consequences?
The suit has been the topic of a lot of discussion in some circles, and one racing club president told me, “We’re all creeped out by it.”
Coyner said he does not think Kim will win, but you never know what can happen at trial.
“I don’t think even Daniel Kim understands the implications,” said Coyner. “It could be the beginning of the end for the sport as a whole.” Dziadzia has started a GoFundMe page to help defray K@TT’s legal costs. On that “Save The Track Days” page, he wrote: "If he is successful in his lawsuit against Keigwins, the track day provider, that opens the door for anyone injured at a track day to sue the provider because they weren’t able to get through a track day without crashing. It opens the door to a flood of lawsuits that will drive insurance up for all track day providers and opens the door to the very real possibility that track day providers will have to double/triple their prices or risk going out of business."
When I spoke to Dziadzia, he adamantly told me he was determined to have his day in court. “They tried to settle with me for a couple of million,” Szymon said. “But I said, ‘No way!’ I could close my business tomorrow, it wouldn’t cost me a dollar, and I could re-open the next day, but some other guy, like Kim, would sue me. And eventually insurance companies would say ‘Fuck these guys. We’re not going to insure any track days, any racing.’ I’m not fighting for Keigwin’s, I’m not fighting for myself; I’m fighting for everybody, because tomorrow you can sue Zoom Zoom, you can sue PTT, you can sue Pridmore, California Superbike...If we lose, it will open the door for all these scumbags to blame everybody for their crash, except themselves.”
Insisting on a trial is a high-risk, high-reward approach. Several insiders told me about previous lawsuits against track day operators, tracks, and racing organizations that resulted in confidential settlements. Yes, the cost of those settlements is baked into future insurance premiums, but they’re not public. If Daniel Kim wins a seven- or eight-figure lawsuit, it will be public. That could encourage more suits in the future.
If you were on the jury, how would you vote?
Just before posting this story, I heard speculation that the trial, originally scheduled for late May, could be pushed back. There's also the chance it could be settled, despite Dziadzia's desire to go to trial. But if it does go to trial, the stage is set for an interesting case. Kim vs. Keigwin’s; Sarah London, who has a track record of winning against well-funded opponents from RJ Reynolds to Toyota, vs. Richard Hewitt, a guy whose office décor features his many crash helmets and who has written and lectured on the topic of sports waivers. I wish I could be there to watch the show.
London told me that Kim may never ride a motorcycle again. That sucks, but what do you think? Does Keigwin’s owe him millions?
Kim was no noob. I say that based on videos he’s uploaded to YouTube. I imagine he selects laps that make him look good, but still, I saw one in which he lapped Laguna Seca, hitting most of his marks, in about 1:44. That’s easily fast enough to be in a Keigwin’s “A” group. (To put it in perspective, when the MotoAmerica Superstock 600 class qualified at Laguna in 2015, months after Kim's crash, a time just ten seconds faster—1:34—would put a rider about the middle of that professional racing grid.)
Maybe Kim was tired, or distracted, or just inconsistent on that fateful day, but in the actual crash video he’s on the wrong line and misses the apex. He’s not carrying much lean angle; his knee’s inches above the deck. In spite of the fact the rider in front of him leaves a very wide outside passing lane, Kim inexplicably stands up his bike and rides off the track at a place, and on a trajectory, that’s atypical. No expert I’ve spoken to about the video sees anything but an easily avoidable unforced error.
But now you’ve seen the video and know the facts, so you can decide for yourself. Would you find for the plaintiff, Daniel Kim, or the defendant, Keigwin’s At The Track?