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EYE ON THE INDUSTRY

TRACK OWNER/OPERATORS ASK AN ATTORNEY
With the assistance of the RPM Newsletter and their “Legalert” column, we are offering some answers of oft-asked legal questions from track owners and operators.

(Disclaimer: While answers to legal questions have been researched, we do not represent them as legal advice. Because laws vary in different jurisdictions, readers are urged to contact attorneys in their area in all matters. RPM and e-KMI.com assumes no responsibility for actions taken as a result of, or in spite of, answers appearing herein.)

QUESTION: After all the discussion about covenants not to sue and waivers and releases, which presumably prevent lawsuits, we hear of more and more lawsuits. Why? I thought that, under the law, someone who signed a waiver or covenant not to sue was prevented from suing.

ANSWER: In a perfect world, Yes! But, blame the overabundance of hungry attorneys or “victims” looking for a fast and easy buck — either way, it happens. It’s the world we live in. If people lived by their word, those who signed covenants and waivers would not sue, but those days are mostly gone. So, we are left with the necessity of going through covenants and waiver formalities as a means to defend race tracks. We cannot confuse right and wrong and the principles we were taught as children with the reality of our present legal system. While law-abiding citizens would presume that covenants and waivers would preclude lawsuits, they have in reality become simply tools defense lawyers use as they argue your side in court when litigation occurs. As such a tool, they are probably more important than ever, and it is wise to be as diligent as possible when gathering, handling and archiving them.

QUESTION: Can we refuse a driver’s entry, or refuse him membership in our non-profit driver’s association? He’s a troublemaker, who slanders us, incites others to cause trouble and threatens to form a rival association. Can he sue us if we do?

ANSWER: Yes you can, and yes he can. So it’s wise to avoid refusing him hastily, and there are some possible complications too, including differing laws that may affect how you handle it. It is important that you have good rules and that you follow them in doing so. Perhaps your association’s bylaws will guide you in dealing with him, and presuming you have well-drafted rules covering conduct, sportsmanship, penalties and appeals, you can rely on them to support your decision as well.

Hopefully, they offer the means to deal with his conduct, so that the decisions and penalties aren’t a judgment call. You want to avoid refusing his entry or his membership, or revoking them arbitrarily or unfairly, or refusing or revoking them in a way that creates such appearances.

Appearances of misconduct or inconsistency have been the fodder for several suits recently. In today’s legal environment, it is wise to plan for the worst, preparing yourself to defend your decision in court, before you penalize him, in case it comes to that.

Legal Questions and Answers Courtesy: Racing Promotion Monthly (RPM). To contact RPM – Racing Promotion Monthly, e-mail to editors@racingpromotionmonthly.net or call 920-294-0830.

Note: From time to time we will have more legal questions and answers here on e-KMI.com.

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