In a unanimous opinion released today (Sept. 27, 2011), the Western Section Court of Appeals of Tennessee ruled in Ginny Beth King et al v. Flowmaster, Inc. that a trial court should not have dismissed Flowmaster from the case based on additional jury questions yet to be decided. The trial court had dismissed Flowmaster on the theory that they had no legal duty to protect spectators at the 2007 Cars for Kids event held in Selmer, Tennessee.
The event was to feature exhibition burnouts by professional drag race drivers including Troy Critchley, whose 3000 horse power car veered into the crowd, killing six and injuring more than twenty others. The Court of Appeals ruled that there were in fact questions for a jury to decide on, including three theories: negligence; ultra-hazardous liability; and the legal definition of drag racing.
As to the negligence theory, the Court of Appeals ruled that Flowmaster did have a legal duty of care to spectators, contrary to the ruling of the trial court. The evidence before the Court demonstrated that while Flowmaster was not the event organizer, Flowmaster was a title sponsor of the event and had taken steps to invite professional drag race drivers to Selmer. The Court noted that under Tennessee law, the plaintiff must show that the injury was a reasonably foreseeable probability, not just a remote possibility, and that some action within the defendant’s power more probably than not would have prevented the injury (…quoting Tedder v. Raskin, 728 S.W.2d 343, 348 (Tenn. Ct. App. 1987). The Court reasoned that the law does not require Flowmaster to be an equal participant in an event, so long as they meet other factors establishing a legal duty to others.
In this case, the Court of Appeals found that Flowmaster had not negated their legal duty to act on behalf of spectators, and therefore it was a mistake for the trial court to dismiss Flowmaster on those grounds.
Ultra-hazardous liability is a legal theory in Tennessee that holds that defendants engaged in ultra-hazardous activities are held strictly liable for the injuries caused (Leatherwood v. Wadley, 121 S.W.3d 682, 699 (Tenn. Ct. App. 2003). The negligence or care exercised by the defendant in carrying out the activity is irrelevant. Flowmaster argued that its lack of control over the Cars for Kids event meant it could not be responsible. However, the Court of Appeals disagreed, noting that evidence presented demonstrated that questions of material fact existed as to whether Flowmaster requested Troy Critchley perform the burnout that killed and injured so many spectators.
As a result, the Court said it was a mistake for the trial court to dismiss Flowmaster from the case on this theory as well.
Legal Definition of Drag Racing
The Court of Appeals also made reference to Tenn. Code Ann. 55-10-501(1) which defines drag racing in Tennessee. Under the law, drag racing is broader than two cars speeding down a course. Instead, drag racing is participation by one (1) or more motor vehicles for the purpose of outgaining another, accepting or carrying out a challenge, and use of a vehicle to determine the maximum speed within a certain distance or time limit. Tennessee law also defines a drag race participant in equally broad terms:
“. . . and also any person or persons who arrange for, supervise, or in any way and manner set in motion any “drag racing”, regardless of whether or not such person or persons may be the operator of, or be a passenger in, any motor vehicle participating in “drag racing.” Tenn. Code Ann. 55-10-501(2).
The Court of Appeals found that sufficient evidence existed as to create a jury question for whether or not the burnout performed by Troy Critchley constituted drag racing, and also a question of whether Flowmaster’s contact with Critchley requesting he perform the burnout equates to “participation” as defined by Tenn. Code Ann. 55-10-501(2).
Finding three situations where the trial court made mistakes in its ruling, the Court of Appeals reversed the trial court decision and remanded the case back to McNairy County Circuit Court for further proceedings.
This ruling is significant because rarely does a Tennessee court have the opportunity to reaffirm and extend the concept of legal duty as it relates to recreational events. Even more rare is the chance to discuss duty in the context of motor sports, and particularly aggressive motor sport activities like drag racing and exhibition burnouts, and discuss them in the context of ultra-hazardous liability. The Court of Appeals stopped short of calling the activity in this case ultra-hazardous, instead leaving that decision for a McNairy County jury.
R. Christopher Gilreath along with founding partner Sidney Gilreath argued the case for the injured and deceased plaintiffs before the Court of Appeals. On behalf of the eight families we represent, we are pleased that they have been given a renewed opportunity to present their story to a McNairy County jury, and that the Court recognized that companies who directly participate to create events that cause harm can be held accountable under the law.
(Full opinion available here: http://www.tncourts.gov/sites/default/files/kingginnybethopn.pdf)