TX LEGAL EDGE

51

Hot Rods, Loud Noise and Event Thrills – Risk of Liability?

Carol Keough April 30, 2013

While I was sitting at the Spring Nationals of the National Hot Rod Association ( NHRA) at the Purple Raceway in Baytown Texas, I wondered as the cars revved up their engines to extremely high decibals who has liability for potential hearing injury to the 200,000 spectators, many of whom appeared to be oblivious to the loud noise.  The fantastic paint jobs on the hot rods and bright team colors for a moment might make one forget the extremely loud sound when the engines warmed up and then the drivers spun down the track at up to 300 plus miles an hour.  Experienced race goers had bright colored ear plugs covered by sound proof headsets to muffle the sound.  However, some of the race fans simply seemed to try to bear the sound or tried covering their ears with their hands.  From personal experience, this approach is not effective in the least.  

Does the NHRA or Purple Raceway have an obligation or duty to protect these race fans and keep them safe from hearing loss? It is not like the NHRA can control the sound level.  Perhaps the Raceway can point to the tiny print on the back of the ticket warning patrons that they assume the risk of injury.  However, Texas does not follow the common law doctrine of “assumption of the risk,” so just how far does the ticket warning go to prevent liability?  Texas does follow the legal principle of reasonable foreseeability.  For example, while playing golf, a golfer would find it reasonably foreseeable that he may be hit by a golf ball.  Attending a baseball game, the “baseball rule”applies in Texas and a majority of the states.  The baseball rule means that you cannot sue the owner of Minute Maid Park if you are hit by a baseball while sitting in the stadium watching Astro’s baseball.  If a baseball stadium has screened areas where fans can sit and they choose to sit in an unscreened area, the owner of the stadium is not responsible if you are hit by a ball.  One fan tried this type of suit this year and lost.  There appears to be a common theme in these event cases when a patron tries to shift the liability for an injury from himself to the owner of the stadium or in this case the raceway.  The determination of who will be liable for a potential hearing loss at the hot rod races starts with whether the race goers could reasonably forsee the risk of injury.  Let me see — the sounds are so loud from the race car engines that it is painful, the ground vibrates and hundreds of race goers are wearing ear plugs.  Trying to make the argument as a race goer that you could not foresee the potential risk of a hearing injury so that you could shift the liability to the NAHR or the Purple Raceway would probably be less then credible.   Now that I have resolved that liability question – I decided to get back to the finals with my double ear protection.

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