Kentucky Motocross Race Waiver Upheld for Negligence and Willful and Wanton Negligence

By Doyice Cotten

In 2011, Walter Brotherton worked on a voluntary basis as a mechanic for one of the racers in the Kentucky Indoor Motocross Championship.8691054520_3faa387e76_m-1

Brotherton was injured during a practice heat while standing near the starting gate.  He and others  decided to move and watch the practice from another location inside the Arena, but at that moment a motorcyclist topped a hill and careened into the starting area injuring Brotherton.

He subsequently sued, alleging negligence as well as willful and wanton negligence (Brotherton v. Victory Sports, Inc., 2013). Defendants claimed protection based upon a waiver signed by the plaintiff.  The waiver read, in part:

. . . releases, waives, discharges and covenants not to sue the promoters, participants, . . . track operators, [and] track owners, for any and all loss or damage, and any claim or demands therefore on account of injury to the person or property or resulting in death of the undersigned arising out of or related to the event(s), whether caused by the negligence of the releasees or otherwise.

Parties agreed that Kentucky law of contractual releases in the motorsports industry has a long-standing precedent of enforcing waivers for negligence. Courts have justified enforcement since 1) races affect only private interests, 2) participation is voluntary, 3) the parties possess equal bargaining power, and 4) the races could not continue without such protection from liability.

Brotherton submitted three arguments against allowing for recovery: 1) the waiver was unclear; 2) a fraud was involved; and (3) the defendants’ acts involved willful or wanton negligence.

The plaintiff alleged that the waiver did not meet the standard must “be so clear and understandable that an ordinarily prudent and knowledgeable party to it will know what he or she is contracting away; it must be unmistakable.”

The Kentucky Supreme Court, however, has stated that a waiver can meet this standard in four ways:

  •  it explicitly expresses an intention to exonerate by using the word “negligence”;
  •  it clearly and specifically indicates an intent to release a party from liability for a personal injury caused by that party’s own conduct;
  • protection against negligence is the only reasonable construction of the contract language; or
  • the hazard experienced was clearly within the contemplation of the provision.

Subsequently, this court held that the waiver clearly satisfies “at least one, if not all, of those … provisions.”


The allegation of fraud was not addressed in the complaint and was dismissed. Because there were issues of material fact that remained unsettled regarding willful and wanton negligence, the court deemed summary judgment regarding that claim to be inappropriate. Thus the court granted summary judgment for the defendant on the negligence claim, but ruled that the willful and wanton negligence claim persists.

Trial for Willful and Wanton Negligence

Kentucky law defines willful or wanton negligence as “ill will toward the person injured,” but by “an entire absence of care for the life, person, or property of others which exhibits indifference to consequences.” Courts have also stated that “[a] complete indifference to consequences distinguishes wrongs caused by wantonness and recklessness from torts arising from negligence.” In contrast, ordinary negligence is “the absence of ordinary care,” and gross negligence is “the absence of slight care.” The court went on to explain that “Willful and wanton negligence, however, involves even more culpability — it is defined as ‘the entire absence of care for the life, person or property of others,’ along with ‘an element of conscious disregard of the rights or safety of others, which deserves extra punishment in tort.'”

In the willful and wanton negligence action, Victory moved the Court (Brotherton v. Victory Sports, Inc., 2014) to grant summary judgment in their favor citing ways in which Victory showed regard for the safety of participants. It listed the following:

  • requiring all participants to sign detailed release forms warning of the danger involved;
  •  posting signs near the entrance to restricted areas warning of the inherent danger of such areas and that each individual was responsible for their own safety;
  •  stationing numerous safety personnel near the track;
  •  providing on-site emergency medical care;
  •  following all safety protocols required by the American Motorcyclist Association (AMA);
  •  instructing and warning riders as to how the course was set up before any racing or practice racing took place, and warning riders to ride below their ability until they gained familiarity with the track layout;
  •  holding numerous practice heats to allow riders to familiarize themselves with the track;
  •  using experienced personnel to design and build the track and viewing safety as the “foremost consideration” in doing so;
  •  inspecting track designs and setups before live racing began in order to evaluate any necessary “safety-related adjustments”;
  •  ensuring that all course boundaries, obstacles, and turns were a “sufficient distance from permanent walls and other restricted areas where crew members stand”;
  •  designing track features near areas where people were standing for less experienced riders;
  •  providing designated areas where crew members were instructed to stand; and
  •  instructing crew members on each day of live racing where to stand in order to avoid injury.

Further, defendant showed evidence of the track designer’s expertise and pointed out that the distance from the starting gate was in excess of the 30 feet required by insurance guidelines.

The only unsettled issue seemed to be where Brotherton was told to stand. It is apparent that Victory took numerous other safety precautions that negate Brotherton’s claim regardless of where he may have been told to stand. Since there were no facts showing willful or wanton negligence on Victory’s behalf, the court granted summary judgment in favor of Victory.


Photo Credit: Thanks to Red Dragon Images on Flickr.