Greensboro Jury Awards $15M in Motocross Accident Injury

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12/19/2019 1:06 PM



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.”
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Twitter: @ftemoto
Instagram: @mstusiak

12/19/2019 1:18 PM

That’s not so good!

15 mil? That could be the end of Dtown...

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12/19/2019 1:28 PM

Terrible situation for all involved. I'm as anti-lawsuit against a motocross track as they come. Yet, as I've gotten older I'm now looking around some tracks and wish some owners would pay more attention to obstacles around the track. Huge tractor tires, cement barriers and trenches don't make good track markers and I don't think it would be that hard to lower the risk of hazards around the track. Riding alone is dangerous enough.

Seriously hoping the track survives.

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12/19/2019 1:33 PM

Jesse318NW wrote:

Terrible situation for all involved. I'm as anti-lawsuit against a motocross track as they come. Yet, as I've gotten older I'm now looking around some tracks and wish some owners would pay more attention to obstacles around the track. Huge tractor tires, cement barriers and trenches don't make good track markers and I don't think it would be that hard to lower the risk of hazards around the track. Riding alone is dangerous enough.

Seriously hoping the track survives.

i grew up riding @ E-Town in NJ and it is a world class facility as they have been in business for along time and have been sued plenty of times along the way

When I live in Texas I rode at some smaller tracks that were just not run properly due to lack of resources. If I was the owner of said tracks I wouldn't operate them until they got all the safey stuff figured out as much as possible.

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12/19/2019 1:41 PM
Edited Date/Time: 12/20/2019 8:32 AM

I don't see them surviving after a hit that big... That's a lot of money.

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12/19/2019 1:43 PM

Jesse318NW wrote:

Terrible situation for all involved. I'm as anti-lawsuit against a motocross track as they come. Yet, as I've gotten older I'm now looking around some tracks and wish some owners would pay more attention to obstacles around the track. Huge tractor tires, cement barriers and trenches don't make good track markers and I don't think it would be that hard to lower the risk of hazards around the track. Riding alone is dangerous enough.

Seriously hoping the track survives.

Gopher Dunes placed fences along both sides of the track to “grow grass”. I’ve seen 3 people with their head stuck in it, one break their arm on it and many more run into it. People have needed medical attention on the track and the medics are unable to get to the rider due to the fences. Not only can you not reach the track, but they aren’t all conjoined, meaning you physically cannot get to certain parts of the track. I K/O’d myself on the track this year, got up and was told i had to complete my lap to exit the track. No way to get out due to the fences. I also saw somebody shatter their collarbone and have to complete the lap to exit the track as well.

Sometimes enough is enough and I hope this is an eye opener for track owners.

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12/19/2019 1:47 PM

That just sucks. I am a firm believer that you choose to ride and nobody makes you ride so when shit happens it's only the fault of the rider not the property.

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12/19/2019 1:53 PM

zippytech wrote:

That just sucks. I am a firm believer that you choose to ride and nobody makes you ride so when shit happens it's only the fault of the rider not the property.

True, but tracks have a responsibility to limit the riders' exposure to hazards and also to limit their own exposure to liability. I'd like to see pictures so I know what the track was doing. There are times when I've been surprised that a track operator would allow certain hazards to exist on his property.

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Braaapin' aint easy.

12/19/2019 1:56 PM

So two things from the article.

1. They claimed the culvert was shielded with tires but the kids GoPro showed it was not. The owner testified it was but proved wrong in court, not so good.

2. Durhamtown couldn’t produce the kids father’s signed waiver form? What’s up with that?

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12/19/2019 2:04 PM
Edited Date/Time: 12/19/2019 2:05 PM

zippytech wrote:

That just sucks. I am a firm believer that you choose to ride and nobody makes you ride so when shit happens it's only the fault of the rider not the property.

Yes, normally I would agree, although there may be some exceptions at times.

To be fair they should probably have been awarded just medical, loss of earnings and legal expenses.

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12/19/2019 2:25 PM


Not exactly the same thing, but a reason why ATVs and bulldozers must stay really far from the track, just in case, to prevent big injuries and huge fines.
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12/19/2019 3:06 PM
Edited Date/Time: 12/19/2019 3:07 PM

Good lesson on many things not to do if you’re a defendant. Result would probably have been a lot less if they didn’t try to hide it and then lie about it.

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I'm goin' off the rails on a crazy train

12/19/2019 3:10 PM
Edited Date/Time: 12/19/2019 3:10 PM

FTE, What's the lawyers cut?! silly

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12/19/2019 3:18 PM

This is shitty all around. I wanna see that go pro footy

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12/19/2019 3:22 PM

crowe176 wrote:

FTE, What's the lawyers cut?! silly

Most P.I.'s that I'm familiar with work for 30-40% plus expenses.

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You kids get off my lawn!

2013 KTM450 Factory Edition
Projects......lots of projects!

12/19/2019 3:24 PM

Sucks for the rider, the track owner and the sport.

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12/19/2019 3:33 PM

I clipped the bucket of a parked bulldozer on the side of a track with an RM 250. It totaled the bike and left me on the couch for about a month. Hurt like hell. It would’ve been real nice of the bulldozer was parked somewhere else far away.

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12/19/2019 3:42 PM

Everyone loses but the lawyers.

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12/19/2019 3:49 PM

731chopper wrote:

Everyone loses but the lawyers.

You got that right!

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"Sorry Goose, but it's time to buzz the tower."

12/19/2019 4:19 PM
Edited Date/Time: 12/19/2019 5:01 PM

crowe176 wrote:

FTE, What's the lawyers cut?! silly

I have no idea in this case. Generally, when the matter is final after all rights of appeal are exhausted, contingency PI lawyers seek 25% of collections at settlement, 33-35 of collected after trial, 40% of collected after appeal, usually on the net after the hard costs the lawyers have advanced during the litigation are repaid first from the collected amount. They haven't been paid yet five years into this case. They may never get paid if the matter goes away on appeal. Also, getting a judgment gives you a judgment to execute on, it does not assure payment of the award.

Not my practice, but my experience is that good PI lawyers are very conservative and savvy about what cases they are going to assume the risk of nonpayment over many years. There really needs to be a lot of upside in damages, as in this case. I had one tell me he only takes cases involving death or amputations (presumably server head injuries as well) simply because the cost of litigation exceeds potential recovery. Not so good PI lawyers will gin up something from a stubbed toe to churn insurance settlements for nuisance amounts.

I would ordinarily expect something like this to be appealed and then there be a settlement for less, maybe substantially less. Here, though, there appear to be some pretty bad facts and bad witness credibility issues, so that may not be the case.


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Twitter: @ftemoto
Instagram: @mstusiak

12/19/2019 4:29 PM

Taotech wrote:

I clipped the bucket of a parked bulldozer on the side of a track with an RM 250. It totaled the bike and left me on the couch for about a month. Hurt like hell. It would’ve been real nice of the bulldozer was parked somewhere else far away.

I practiced at a track in the South (kind of a rinky dink MX track w/no racing - just practice) where the guy rolled out onto the track with a skid steer while we were still on it. Totally freaked me out, and I never went back...

I totally believe we need tort reform, but I'm conflicted on this. Durhamtown was obviously negligent, and the kid will never be the same, but $15M? I hate that (another) riding spot is probably gone...

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12/19/2019 4:36 PM

Will the plaintiff see a dime? I cant imagine an insurance company even paying that

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12/19/2019 4:42 PM

I ride motorcycles...dirt-bikes...that shit is dangerous...it may kill me some day...

Sometimes shit goes sideways.

Is that someone’s fault?

Didn’t the Eagles cover this? Didn’t Shakespeare?

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I ripped a start from Egypt and I was happy about that.

12/19/2019 4:54 PM

cable wrote:

Will the plaintiff see a dime? I cant imagine an insurance company even paying that

I doubt that the policy has limits that high, so anything above what insurance pays would have to come from the defendants' own assets.

The worst example of this that I've witnessed was a matter on calendar before mine where people were trying to come to terms with the there only being a minimum $30,000 insurance policy in wrongful death matter where an 18 year old with no assets killed himself and seven other kids, some riding in the bed, when rolled his pickup.

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Twitter: @ftemoto
Instagram: @mstusiak

12/19/2019 4:59 PM

Well it's not binary, so you can't just say something is dangerous therefore it's okay to dig snake pits on the backside of a blind jump. You've got to do your due diligence and you should want to do a good job so that, when someone gets hurt, it's not because you did something dumb. I know of two people that died at local tracks and I can tell you, both times it messed up the guys running the place. So, you don't leave things poking up. You spend the ten bucks on a few hay bales to block it off and you do it for yourself if nothing else.

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12/19/2019 4:59 PM

TeamGreen wrote:

I ride motorcycles...dirt-bikes...that shit is dangerous...it may kill me some day...

Sometimes shit goes sideways.

Is that someone’s fault?

Didn’t the Eagles cover this? Didn’t Shakespeare?

The lesson from this is not that a dirt bike rider can never assume risk of injury excusing the track owner from liability.

The lesson is that track owners have a duty of care to the riders who use the facility, and lying about whether you met that duty is a bad thing to do before a jury.

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Twitter: @ftemoto
Instagram: @mstusiak

12/19/2019 5:02 PM

Remember, if you see something that could be dangerous around the track, tell the track manager.
I was out at REM one race day and saw a massive chunk on concrete in between lanes of the track. I told Frank how bad that could be for someone who skated off the track half out of control. He stopped the races, got a dozer and dragged the shit out of there.
That's how it should go down!

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12/19/2019 5:05 PM
Edited Date/Time: 12/19/2019 5:05 PM

7eleven wrote:

Remember, if you see something that could be dangerous around the track, tell the track manager.
I was out at REM one race day and saw a massive chunk on concrete in between lanes of the track. I told Frank how bad that could be for someone who skated off the track half out of control. He stopped the races, got a dozer and dragged the shit out of there.
That's how it should go down!

Amen. We're all in it together. And if you report something to a track owner who does not address it, maybe in that case you're not and you can take your clues about whether to stay from that.

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Twitter: @ftemoto
Instagram: @mstusiak

12/19/2019 5:14 PM

What a selfish thing to do man. Ride at your own risk. People like this are going to be the end of our sport.

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12/19/2019 5:17 PM

I’d give up 15 million to have full function of my leg and still be able to ride and race in a heartbeat. That’s horrible for a 15 year-old to go through. And I agree that objects off to the side of the track can pose even more of a danger than the actual track.

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