Racing, Risk and Liability: WSMC Fires Its Race Director In the wake of a racer fatality at Willow Springs International Raceway this past April, officials there replaced Willow Springs Motorcycle Club Race Director Larry Cochran. The change brought to light a dispute over WSMC’s New Racer school and the difficulties of trying to discuss safety in public in a litigation-happy culture. While the official announcement about removal of Cochran says nothing about his performance as Race Director, a position he took after former Race Director Danny Farnsworth was sacked in 2004, Cochran says that his removal was motivated by the track’s concerns about legal liability. Specifically, Cochran says, track officials said his public questioning of the adequacy of the New Racer school after the death of Novice racer Chris McCauley in April and the actions of Cochran’s wife, Myra, a nurse who worked on McCauley at the track opened the track to potential legal liability. Track spokesman Stephen Hewitt, a racer and lawyer who represents the track, says that while the track has legal concerns over the opinions and comments Cochran has aired since his removal, there were other factors that motivated the change, too. Track officials had an opportunity to bring veteran racer Jay Tanner on board as race director. Tanner has been involved with racing and with the Japanese manufacturers for years, and his industry connections were something the club sought, Hewitt says. “Stephanie Huth (WSIR General Manager) was very excited about the opportunity to bring Jay on board,” Hewitt says. “The Huth family likes to keep management as close to the family as it can, and Jay is Stephanie’s ex-husband, they are close, and they view him as part of their extended family.” As for the track’s concern over Cochran’s public comments, Hewitt says, “I really don’t think Larry realizes the gravity of the statements he has made.” Liability issues are always a sensitive area for any organization that involves racing motorcycles at triple-digit speeds. But this dispute raises serious questions about how much discussion race organizations can have in public about racer safety. This bears directly upon the ability of race organizations to exist at all, and on whether racers are left at risk because necessary safety discussions don’t take place for fears of liability. The process that led to Tanner replacing Cochran began unfolding after McCauley, 45, died in a last-race, last-lap crash in the Open Novice race at the WSMC event in April. It was the second fatality at the track in less than a year. The death of 250cc GP racer Jesus Amezcua in the Roadracingworld.com 250/50 last September was tragic, but the death of McCauley raised more troubling questions. Amezcua died after a collision with another motorcycle knocked him down and then he was struck by a following motorcycle. McCauley, on the other hand, left the track in high-speed Turn Eight and, according to track officials, apparently made no attempt to get off the motorcycle before hitting a drainage ditch. McCauley was thrown over the fence surrounding the track. The incident brought to light a simmering dispute among club members as to the adequacy of the club’s New Racer school. Newcomers to WSMC must complete a classroom orientation on Saturday morning, get three (or sometimes more) practice sessions by themselves late Saturday morning and afternoon, and get to participate in practice starts on Saturday. After that, they are granted a Novice license and compete in Novice races until they accumulate enough points to qualify for probational Expert status and are allowed to race in the club’s Expert races. McCauley had raced for a brief period with Willow Springs Motorcycle Club in 1993 and 1994, track officials say, before taking a 12-year hiatus. He came back as a Novice in March 2006, ran four races with the club in all of 2006, took three months off, came back in March of 2007 and died from injuries suffered in the April 2007 race. After the crash, Cochran wrote a letter to WSIR officials saying, in part, “I continue to have concerns regarding our new rider instructor … Many Expert riders including several past WSMC Overall Champions continue to express concern regarding the instruction Novices are receiving. “Are the New Racers being made aware of where they run out of run-off room? “Did Chris McCauley have all the information made available to him? Unfortunately we may never know.” Cochran insists that his letter was sent to selected club officials in confidence, and that it became public without his consent, although he later posted it on a computer bulletin board where WSMC racers discuss serious issues and argue over idiotic things just like every other racing BBS on the Internet. Unfortunately, when they became public, those comments may have increased the club’s potential legal liability for McCauley’s death, says an attorney who specializes in property and premises liability law. They were particularly problematic because Cochran was a paid employee of the club who was in a position to offer a credible evaluation of the adequacy of the New Racer school. Simply put, no company wants to walk into a court of law to defend itself against a negligence claim and have to explain why its own employees are publicly questioning whether the company was, in essence, guilty of negligence. “Anytime if you have a potential defendant admitting, yeah, boy, I’m really not sure we trained this guy right well, if a client asked me if they should make such a public statement, I’d advise them against it,” says Bob Armstrong, lawyer and partner at Demler, Armstrong & Rowland, LLP, a Long Beach, California law firm which defends companies against liability claims and lawsuits. Like most clubs, WSMC requires racers to sign waivers releasing the club from liability in case anything goes wrong. But Armstrong says the waivers could be challenged on the grounds that an inadequate training program exposes a racer to a level of risk that he or she did not agree to. “The argument will be that the racer signed the waivers of liability against the track and assumed the risk of racing, but that it was, in essence, predicated upon the assumption that he would be trained properly. It’s not that the racer doesn’t assume the risk of racing, it’s that he does not assume the risk of not being properly trained. If there is a suit or a claim, the family or estate will claim that the racer wasn’t trained adequately, that he did not assume the risk that he would not be trained adequately. The track will say that he was adequately trained, but then the other side says, ‘Look, your own employee agrees with us.’ A written admission like that (Cochran’s letter), well, it just doesn’t seem circumspect,” Armstrong says. Another potential liability problem, Cochran says, came from his wife Myra’s decision to try to provide medical assistance to McCauley. Because the racer had cleared the fence, Cochran and his wife–a trained nurse who carries her own liability insurance–were in a position to reach McCauley before the medical crews at the track. Cochran says he and Myra were on the scene minutes before medical crews arrived. Club officials had already told Myra Cochran that she was not allowed to attend to injured racers, that her role with the club was in her capacity as administrative help. She argued that because she carries her own insurance, the club was protected, and that the state’s Good Samaritan law which essentially requires qualified medical personnel to help the injured in times of emergency required her to act. In fact, Cochran says, had Myra not done anything, she would have exposed herself to potential liability. And Myra, Cochran says, made it clear that she would do the same thing she had done for McCauley if she found herself in the same position in the future. Given that legal scenario, club officials may have felt the best way to limit their legal exposure was to distance themselves from Larry and Myra Cochran. At least, if asked to explain in court why their employee felt the New Racer school was inadequate, WSIR officials can say that they disagreed with Cochran’s opinion so much that they fired him. “Comments like the ones Larry made are hurtful to the club and to the other racers,” Hewitt says. “They certainly run the risk of attracting and sustaining unwarranted litigation. And I can tell you that Larry never talked to me about what kind of liability he was exposing the club to.” Hewitt says he has advised the Huths and other track officials and employees to make no statements about the change in management or McCauley’s death, and that he would serve as club spokesman on these issues. Conclusion: Road racing is dangerous, and when something goes wrong, the only person who really knows what happened often can’t tell us. And there obviously are unanswered questions. For example, McCauley first went through New Racer school with WSMC back in the early 1990s. Was the school inadequate back then, when Cochran’s friend Danny Farnsworth was Race Director and instructor at the New Racer school? And obviously, personalities get involved in any debate over something as emotional as the death of a fellow racer. No matter what side of an associated issue you subscribe to, everyone takes it hard when a racer dies. Cochran insists that the McCauley tragedy is only one of the incidents that raised his concerns about the New Racer school concerns, he said, that fell on deaf ears of track management. “We’d have new guys fall and just stand there at the site of the crash,” Cochran says, “and the crash truck guys would come up to them and say, ‘Why are you standing in an impact zone?’ and the racer would say, ‘What’s that?’ I decided that I had to do something, even if it was going to cost me my position.” As an aside, in the lengthy discussion on the unofficial Willow Springs Motorcycle Club BBS about the crash, the New Racer school and the firing of Cochran, there are many criticisms of the New Racer school and not many racers rushing to its defense. Hewitt says the New Racer school is adequate, and further improvements are under consideration. Furthermore, Hewitt says, “Larry had the authority to manage the club and did not do so.” Cochran is a longtime club manager and a longtime racer, a class Champion whose thundering Honda Ascot Single is a fixture on the track. His passion for the sport and the club is without question. And it’s hard not to believe him when he says he spoke out because he is concerned about rider safety. Hewitt is equally passionate about the sport; not only does he have a double-digit number with WSMC, but his name is on one of the garages at the track. He, too, is a fixture at Willow, whose dedication to the sport and rider safety is unquestionable. This is America, 2007, and comments like the ones Cochran put into writing carry a different type of risk than racing represents. Like it or not, we live in a society of laws and lawyers, torts and trials. And it is clear that speaking candidly without thinking about our legal environment can cause problems that can affect an entire race organization. Cochran says he felt bound to speak out; but the program and the track that comments like his potentially endangered do not belong to him. On a broader scale, the disturbing question is about the implications for rider safety and on the other hand, the ability to run an inherently dangerous operation like racing in a litigious culture. For decades, racers have fought an uphill battle to make racetracks safer. Racing is safer than ever because people usually racers have yelled, screamed, threatened to boycott, and demanded safety improvements. When those failed, racers have banded together to improve their own lot. The Roadracing World Action Fund is a good example of racers doing exactly this. On the other hand, running a race club or track is a business operation fraught with liability under the best of circumstances. Even a frivolous lawsuit can drive a club or owner into bankruptcy. Should race club officials, well-meaning or not, take actions that put their organizations at even greater legal risk? Simply put: What will liability concerns do to the free, open discussion of rider safety and the ability to race in the first place in the future? And now, some reader reaction: FIRST PERSON/OPINION Via e-mail: I read this article several times and the circumstances surrounding this riders death are not unfamiliar and are part of a growing trend. As one of the largest track day providers in the USA, Sportbike Track Time, we are able to witness the progression of many thousands of riders annually. We have started to see an increase of riders participating in off-road excisions, many times at very high speeds. Just yesterday at one of our Sportbike Track Time events at Road America I was teching a bike when I noticed nine little John Deere stickers on the windscreen side. I asked the rider if he worked for John Deere. He replied “no, that’s how many times I’ve gone off in the grass.” His bike was a 2005 CBR600RR. So that’s NINE times in two seasons? Holy sh-t I thought to myself, this guy needs a job in the turfgrass industry because he’s seen enough of it! I believe that with the incredible leaps forward in motorcycle and tire technology we are witnessing novice riders being able to achieve high speeds and relatively low lap times in a very compressed timeframe. This is all well and good until said riders find themselves in a situation that requires a split second decision such as when they have exited the racing surface at a high rate of speed and they are headed towards a hard object. Sometimes when we riders know that a situation is going to end badly, we must make split-second choices to end it on our terms… such as tuck the front or even eject prior to auguring in to a wall, armco barrier or tire wall. Additionally, most riders are not starting out on small displacement machines anymore. I think we can all agree the latest generation of 600cc machines hardly qualify as “entry level” equipment. There are very few choices if one does decide to go the small displacement route. We seem to be infatuated with displacement. Unfortunately an inexperienced rider or racer may not have the situational awareness needed to make an “informed” decision. How many riders or racers actually take the time to thoroughly examine the run-off areas? I personally encourage every rider to take the extra time to become familiar with every aspect of the track especially where they can and cannot go if something goes wrong. The “what would I do if I went off here” question is one that should be asked of oneself at every braking zone and corner. This situational awareness can prevent a serious (or worse) injury. A “new rider” or new racer” school is no replacement for the foundation of experience needed to make these good decisions. Only experience will build up the skills needed for positive outcomes when things get sketchy. Riders need to be willing to take the time needed to build solid skill sets prior to letting it all hang out. Too fast too soon is just something bad waiting to happen. As an industry insider I believe that we are a long way from seeing this trend peak, let alone decline. As industry advertising continually taunts us with bigger is better, faster is sexier and sexy is fun… etc, hypersport bikes will most likely continue to roll out of dealerships in record numbers. Sadly experience isn’t rolling out with them and seriously injured or dead isn’t sexy or fun at all. Monte Lutz Delta, Ohio FIRST PERSON/OPINION Via e-mail: Thank you for the article regarding track safety and liability issues, it is interesting to understand the multiple constraints riders, track management, and track employees have to work within. I would like to point out that when the track’s legal representative makes a public statement regarding the lack of legal guidance to a current or past employee, he is really indicting the track’s own policies and procedures. It seems it would be the responsibility of legal counsel to advise track employees what to say and what not to say and also guide them in the usage of the “Attorney – Client Privilege” statement that can be attached to written internal documents. I reference the following portion of the story. ‘As for the track’s concern over Cochran’s public comments, Hewitt says, “I really don’t think Larry realizes the gravity of the statements he has made.”‘ It is legal counsel’s job to make them realize the potential gravity of certain types of statement before they are made, not afterwards. Additionally, as Larry was no longer an employee of WSMC when some public statements were made, it seems that a Non-Disclosure Agreement should have been in place prior to his release if statements by him can adversely affect the liability of the track. Again it would seem that the responsibility to protect the track would lie with legal counsel. I do not know if Mr. Hewitt was the legal counsel throughout the entire course of events described in the story, so I am not trying to criticize his efforts or any efforts of the track, but would simply like to point out some real world issues and standard practices that could have prevented some of the problems and misunderstandings that were brought to light by the article. I would like to add that I fully supported Larry in watching out for the safety of the riders and I appreciated Larry bringing potential safety issues to the attention of the riders after he was let go regardless of any liability issues. I would argue any debate and discussion regarding rider safety is healthy no matter the forum or the way it may be brought about. It seems that advising the riders he watched over for many years was the good Samaritan thing to do and I thank him. Also, having gone through New Racer School with Thad Wolff, I believe I was provided with adequate training to protect myself, but there is always room for improvement. There are common sense actions like staying out of an impact zone that I do not need to be told. I know when a bike is coming at me at 100mph, that a mechanical problem may cause them to miss a turn and continue towards me. I strongly believe that Thad taught me the critical items I needed to stay safe on the track, but perhaps different people need to be told different things and the school could be improved to cater to a wider audience perhaps. That is a judgement call that I feel confident that WSMC has and will continue to address. I have enjoyed racing with WSMC, I believe the race director, the school instructor and track management are all concerned with mine and others safety so I really see everyone as being in violent agreement. Accidents happen, improvements can always be made, and we will move on. It was an unfortunate sequence of events that happened and there were clearly some communication issues between various parties, but I look forward to continued and safe racing at Willow Springs and I wish the best of luck to Larry and Myra, and to Jay as the new Race Director. Regards, Chris Speights WSMC #676 Long Beach, California FIRST PERSON/OPINION Via e-mail: After reading the article on the Willow Springs fatality I was moved to contact you. Insofar as the subject of race schools I attended Team Hammer at Daytona in October 2006. I returned for their track ride at Daytona in March 2007. Before this I did track days at VIR, CMP, and Jennings with various organizations. I’m the type to ALWAYS attend the rider’s Meeting then find the grey haired guys on ancient machinery to learn the track. Reading the article I recalled our Team Hammer instructor Michael Martin commenting on running off at Daytona, specifically Turn One. The conversation went something like, “Don’t do it. Don’t think about it. It’s not an option.” Now there was some further conversation about the physics of a Sportbike once it leaves pavement but the point was made. If conveying the gravity of Turn One was the point then it worked. For the record we did have one student who ran off TWICE there and I believe this person was not allowed back out (thankfully) after the second time. Don’t quote me on that. My point is this was a safety issue. It was stressed by our instructor. I would hate for subjects such as this to be neglected due to liability issues. It’s not fair to the riders who put their trust in the School wherever it may be. It’s not fair to their families. In fact, if fear of liability is responsible for someone’s injury that’s cowardly and sick. There is no honor in that. The article raises interesting points. It’s fair to say that speaking out after the fact is not bringing anybody back. It doesn’t seem the school was deliberately withholding information from the riders from what I read. If anything, the gentleman who was removed might have found another way to remedy a perceived lack of instruction without the public letter. Or was he ignored and pushed to do so out of desperation? I know nothing about the school or the incident other than Roadracingworld.com’s article. The only answer in the end is the simple one. Do the right thing when the opportunity presents itself. Keep up the good journalism Roadracing World. I’m not a subscriber I have to buy EVERY issue off the shelf. (Work moves me around too often). Good luck to the Team for the remainder of the season. Phillip Williamson Sanford, Florida FIRST PERSON/OPINION Via e-mail: Very interesting article on race track liability and the concern over rider safety and new rider training. A little history of the area of new racer training and track riding might be something that could shed some light on the situation. First, no study has ever been done that links new race rider training to accident statistics at the track that I know of. In my early days of racing, new rider’s schools did not exist. Riders showed up at the track with a motorcycle, the desire to race and enough money to pay entry fees; we were then granted a license and raced, you could even get a license by mail with no experience of any kind. I got my first license like that. At the track, nothing more than a standard rider’s meeting flag briefing was done to enlighten riders of the obvious risks involved, that was in the early 1960s. For most of the 1970s it was exactly the same. Were there more incidents and injuries in those days than there are now? We don’t know. Would there have been fewer accidents if there had been new rider’s schools back then? No one can say with any certainty. Were there more severe accidents then than there are now? I don’t think the numbers have changed very much if at all, that is just my opinion but again, there is no reliable data on it that says one way or the other. For all anyone knows, new race rider’s schools, no matter how thorough, may have made statistics worse. Saying that a chalk talk can prevent accidents is like saying that telling your teenage kids about the dangers of driving under the influence of drugs and alcohol will make them safe. Statistics don’t back that up as being true. Thousands of teenagers die every year from it. Saying a rider wasn’t informed about the dangers of racing on a track assumes that everyone who comes out to tracks is an idiot and all things should be geared to that common denominator of intelligence. Once the idea that people are unable to take responsibility for themselves enters into racing and track riding what we are really saying is that we are, as a group, stupid, wreckless, fearless, irresponsible, risk takers, when nothing could be further from the truth. Can rider training be handled so that rider errors don’t happen? Absolutely not. Organizations, in some cases, are just covering their butts in a potentially litigious society. A great example of this was in the 1980s when a club was running the motorcycle racing at Willow Springs, the ARRA. I recall the club owner telling me that he was going to limit novice riders to under 450cc bikes. I asked why and he said that the new machines were simply too fast for novice riders. I asked him to take a look at the past few year’s accidents in his records and find out what size bikes were involved in the worst of them. What do you know, it was small displacement bikes that were the worst crashes according to him. Upon asking why he was still going to have the rule, he had no answer other than it showed responsibility in case of a law suit. Useless rule, for fictitious reasons in a fragile sport with fragile participants. Are motorcycles more dangerous than they were in the past? Hardly. Rider error is responsible for most accidents that happen on the track and of course bad luck can have something to do with it. You can fall off at 190 mph and walk away. You can crash at under 25 mph and be dead as recently happened in a paddock accident at another track. Should the rider have been warned that if he gave it too much gas at low speed and it highsided him and punched a hole in his body he could die? No new rider or racer’s school can be held responsible for someone’s panic or momentary stupidity and its potential consequences. Pinning the blame on an organizer or track owner or new rider school for mishaps, when the sole reason for going there is to ride fast or compete in a dangerous sport is misplaced blame. We all know it is dangerous, we wouldn’t love it half as much if it wasn’t, and that danger will never go away, ever. Regards, Keith Code Glendale, California