Downing v. United Auto Racing Association

570 N.E.2d 828 (1991)

Facts

P was injured during a midget car race operated Ds. A car driven by defendant Robert Guess (Guess) overturned on the racetrack and struck P, who was standing just off the track in an area unprotected by a guardrail. A jury found that Guess was not negligent. At the time of his injury, P was a member of a pit crew for Richard Pole (Pole). As P waited on the track for the car to be pushed into a warm-up race, he noticed that the car being driven by Guess bicycled in the turns nearer to P. P and other members of the crew pushed Pole's car onto the track to participate in the warm-up race. P began to walk off the track toward the pit area, and people noted that Guess' car again bicycled a few feet in the air when the car made the two turns at the far end of the track. P and others indicated that Guess’s car should be removed from the track. P testified that he was aware that it was dangerous to remain in the area he stood in during a hot lap. Guess' car reached the turns nearer to the pit area, the car again bicycled. It then flipped over and began skidding toward P. P was struck by the car and pinned against the fence next to the track straightaway. He sustained injuries requiring extensive surgery and lengthy post-operative care. P claimed Ds were guilty of willful and wanton conduct because they (1) failed to extend the guardrail near the pit area and (2) failed to provide a pit steward to ensure that persons did not remain in the exposed area near the pit. In addition, P claimed that D was guilty of willful and wanton misconduct because it failed to black flag Guess' car off the track once it began to bicycle. 

Ds presented evidence to show that none of the alternatives suggested by P was reasonably necessary and that none would have prevented P's injuries. Ds also presented testimony to establish that they had warned pit crew members, including P, not to stand in the area where P's injuries occurred. P got a verdict for $1.5 million in damages, reduced to $615,000 for P's comparative fault, which the jury assessed at 59%. Ds appealed, and P cross-appealed.