Greensboro Jury Awards $15M in Motocross Accident Injury

https://www.law.com/dailyreportonline/2019/12/17/greensboro-jury-awards-15m-in-motocross-accident-injury/

Greensboro Jury Awards $15M in Motocross Accident Injury

A jury in eastern Georgia awarded nearly $15 million to a young man who nearly lost a leg when he ran off a popular motocross track and hit an exposed steel culvert.

The award was apportioned between a half-dozen defendants associated with the Durhamtown Off Road Resort and included more than $734,000 in medical bills for the motorcyclist’s parents and $14.2 million for his own damages.

Lead plaintiffs attorney Christopher Clark said a key factor was video evidence that the culvert was not blocked off by hay bales or tires as the defendants initially claimed.

The driver, Coleman Rogers, had a GoPro camera mounted on his helmet showing that the culvert was unprotected at the time of the incident and that someone moved tires into place afterward but before sheriff’s deputies arrived.

“We had produced the video during discovery as we were supposed to, and I fully anticipated they would have seen it,” Clark said.

Instead, during depositions, the owner and operations manager “both testified that the culvert was fully covered. I just let them go ahead and say that,” he said. “It eventually came to light that it wasn’t covered, and they finally admitted it, but by then it was just too late.”

“We impeached the heck out of ‘em with that,” said Clark of Macon’s Clark, Smith & Sizemore, who tried the case with partners Michael Smith and Richard Sizemore.

Defense lawyer Martin Fierman said the size of the award was “absolutely shocking.”

Fierman said there would definitely be a challenge to the verdict, but he was not certain what form it will take.

“Which particular route we will take we have not yet decided,” said Fierman of Madison’s Fierman Law Firm, who defended the case with his son and law partner Ben Fierman.

“This was a complicated case with a bunch of defendants and a number of issues the court had to rule on, both pretrial and during the trial,” he said. “It’s a matter of us looking at the record and deciding which way to go.

Durhamtown is near Union Point, and its website says it offers motorcycle, ATV and SXS off-road rentals and sales, as well as lodging, camping and hunting.

Clark said the sprawling facility hosts at least 100,000 visitors every year.

According to Clark and court filings, Rogers was 15 years old in December 2014 when he participated in a race at Durhamtown. He was wearing a helmet, neck brace, steel-toed boots, gloves, goggles and “rider pants.”

Rogers had just made a jump on his second lap on the youth track when he landed to the left of the course, struggling to keep the bike upright. His right leg hit the exposed edge of the culvert, which Clark said was 36 inches off the track. The width of the exposed portion was less than an inch.

The steel culvert nearly severed Rogers’ leg, and he underwent seven surgeries.

“The doctors did a fantastic job to save his leg,” Clark said.

Now 20, Rogers can walk “but he’s got an altered gait, and he’ll never be able to run or play sports again,” Clark said.

Defense pleadings said Rogers’ father had signed a liability waiver and release before he began riding and that they voluntarily “assumed the risk” of injury. The culvert, according to the defense portion of the pretrial order, was in “plain view,” and Rogers was at least partly at fault for his own injuries by leaving the track.

The plaintiffs portion of the order said photographs show that Durhamtown employees first placed tires near the culvert after the accident, then moved them further in a “progressive covering of the end” of the pipe.

Rogers’ parents filed suit in Greene County Superior Court in 2016 leveling claims for negligence and gross negligence against 14 individual and corporate defendants that owned, managed or worked at Durhamtown.

Fierman said many of them were dismissed on summary judgment as the litigation progressed.

He said representing the remaining group of defendants posed some challenges.

“There were some conflicts in the testimony between the defendants that I did not consider significant either before or during the trial, but their testimony was not identical throughout,” Fierer said.

Clark said there were no settlement offers or mediations.

“We tried to engage them in some settlement discussions, including on the first day of trial, but there was never any offer made,” Clark said. He said his side never made any certified offer to settle.

In preparation for trial, Clark said his team focus-grouped the case five times with Greene County residents.

“We wanted people who we felt would look like our jurors, and we wanted people who had experience riding motorcycles or ATVs,” he said.

During a weeklong trial that began Dec. 9 before Judge Brenda Trammell, Clark said the defense abandoned any claim that the culvert was properly covered but insisted that Rogers’ father signed a waiver.

“But they couldn’t produce a signed waiver,” he said. “They had a computer system that showed some entries claiming to show the father had accepted the electronic waiver, but they couldn’t produce it.”

He said the plaintiffs relied on a forensic computer expert Nathan Watson of Macon, who testified there was no way to tell who electronically signed the waiver or when they did so.

He said the defense offered testimony from veteran motocross rider Donnie Banks as to the track’s safety.

“To Donnie’s credit, he conceded where he had to concede,” Clark said.

On Friday, the jury retired to deliberate at about 10:30 a.m., took an hour lunch break, then resumed.

“I could hear ‘em in there arguing—it’s a small courthouse—then about 3 o’clock things got quiet,” he said. “We were getting kind of nervous, then around 3:30 they sent out a note asking for a calculator.”

At about 5:30 the jury returned a verdict finding all but one defendant—an emergency medical technician who treated Rogers at the scene—grossly negligent.

Fault was apportioned between the remaining defendants, with one—Durhamtown’s racing coordinator that day—assigned just 1% of the liability.

Rogers was awarded $14,200,000 for past and future pain and suffering, diminished work capacity and future medical bills, and $734,279 for his medical bills.

A section of the jury form asking whether there was valid waiver was left blank.

In conversation with jurors afterward, Clark said he asked what the raised voices were about.

“They were arguing about the waiver. They had a hard time getting a unanimous consensus that there was no waiver,” he said.

Key to the case, he said, was the defendants’ initial contradictions about the culvert.

“They admitted that they placed the culvert there, but they would never concede that this was something that should be covered,” said Clark. “The jury just wasn’t buying it.”