Appendix — Wagner v. Live Nation Motor Sports, Inc.

APPENDIX

TABLE OF CONTENTS

APPENDIX A: Tenth Circuit Opinion,

dated November 13, 2009 ............. la

APPENDIX B: District Court Opinion,

dated November 27, 2007 ............ 23a

APPENDIX C: District Court Opinion,

dated October 27, 2006 ............... 57a

APPENDIX D: Tenth Circuit Order Denying

Appellant's Petition for Rehearing,

dated December 7, 2009 ........ 8la

la

APPENDIX A

FILED

United States Court

of Appeals Tenth Circuit

November 13, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ARTHUR C. WAGNER JR.

Individually and for the bencfit of |

Jean Marie Wagner,

Plaintiff Appellee/

Cross Appellant,

V. No. 07-3365

& 07-3366

LIVE NATION MOTOR

SPORTS, INC., formerly known as

SFX MOTOR SPORTS, INC., doing

business as Clear Channel

Kntertainment- Motor Sports,

Defendant Appellant/

Cross-Appellee,

Za

and

HEARTLAND PARK RACEWAY,

LLC,

Defendant.

Appeal from the United States District Court

for the District of Kansas

(D.C. No. 2:05-CV-02336-JPO)

Paul M. Croker

(Richard M. Enochs on the briefs),

Overland Park, Kansas for

Appellant/Cross- Appellee.

David R. Cooper

(Larry G. Pepperdine and

Steve R. Fabert with him on the briefs),

Fisher, Patterson, Sayler & Smith, L.L.P.,

Topeka, Kansas for Appellee/Cross- Appellant

Before KELLY, EBEL, and MURPHY,

Circuit Judges

EBEL, Circuit Judge

3a

In this diversity case governed by Kansas tort

law, SFX Motor Sports, Inc.' (“SFX”), appeals the

district court’s denial of its post-trial motion for

judgment as a matter of law (“JMOL”). SFX argues

that a reasonable jury could not have found SFX hable

for wanton conduct based on its staging of an August

2003 motorcycle race in which Arthur Wagner, Jr.

(‘Wagner’), crashed and was seriously injured.

Wagner cross-appeals, arguing that the district court

erred in reducing his damages award pursuant to

Kansas's statutory cap on noneconomic damages in

personal injury actions. Exercising appellate

jurisdiction under 28 U_S.C.§ 1291, we REVERSE the

denial of SFX’s motion for JMOL and DISMISS

Wagner's cross appeal as moot.

I FACTUAL AND PROCEDURAL

BACKGROUND

On August 8, 2003, Wagner competed in the

Formula USA 250K Team Challenge Endurance Race

at the Heartland Park racetrack in Topeka, Kansas.

SFX staged the race pursuant to its Track Rental

Agreement with Heartland Park Raceway, LLC to

which Jayhawk Racing Properties, L.L.C. had assigned

its rights to operate the track.’ In order to participate

in the August 8 race, Wagner had signed, the day

Since the tume of the events at issue in this appeal, SFX has

changed its name to Live Nation Motor Sports, Inc. In keeping

with the practice of the district court and the parties, we refer

throughout to SFX rather than to Live Nation Motor Sports

Jayhawk Racing Properties, L.L.C. was, in turn, the assignee of

the nghts of the City of Topeka, the owner of the racetrack

4a

before, twc documents entitled “Release and Waiver of

Liability, Assumption of Risk, Indemnity and Rights

Agreement.” (R. vol. 1 at 142-44.) The first release

and waiver, for which “HPT-Topeka, KS” served as the

“{dlescription and location of scheduled events(s),”

provided as follows:

IN CONSIDERATION (a) of being

permitted to compete . . .or (b) being

permitted to enter, for any purpose, any

Restricted Area .. ., including but not

limited to the competition area .

EACH OF THE UNDERSIGNED, for

himself/herself, his/her personal

representatives, parent or legal guardian,

heirs, and next of kin:

Acknowledges, agrees, and represents

that he/she has or will immediately upon

entering any such restricted areas, and

will continuously thereafter, inspect the

Restricted Areas which he/she entersl]

and he/she further agrees and warrants

that, if at any time, he/she ts in or about

Restricted Areas and_ he/she feels

anything to be unsafe, he/she will

immediately advise the officials of such

and will leave the Restricted Areas and

or refuse to participate further in the

Event(s).

2, HEREBY RELEASEIS], WAIVES.

DISCHARGES AND COVENANTS NOT

TO SUE SFX Motor Sports, Inc., d/b/a

Clear Channel Entertainment-Motor

i

Ja

Sports, and its affiliates and related

companies... , track operators, . . . [and]

owners and lessees of premises used to

conduct the Event(s), . . . all for the

purposes herein referred to as

“Releasees”, FROM ALL LIABILITY TO

THE UNDERSIGNED, his personal

representatives, parent or legal guardian,

assigns, heirs, and next of kin 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,

IN WHOLE OR IN PART, BY THE

SOLE OR CONCURRENT

NEGLIGENCE OR WRONGDOING,

STRICT LIABILITY OR FAULT OF THE

RELEASEES OR OTHERWISE.

(R. vol. 1 at 142.) The second release waiver,

indicating “Formula USA Testing” as the “Description

and Location of Scheduled Events,” included identical

provisions. (Id. at 144.)

In addition to signing their releases and waivers

on the day before the race, Wagner and other racers

participated in practice sessions on the Heartland

Park track. During those practice sessions, two riders

had to leave the 2.5-mile track in the area of Corner

10; one rider had run out of fuel, and the other had a

6a

mechanical problem with his motorcycle. Both

motorcycles had to be pushed off the track.

During the race itself, on August 8, Wagner was

entering Corner 10 and leaning into the left-hand

curve when the wheels of his motorcycle hit a rumble

strip, or berm, on the outside edge of the track.

Wagner's motorcycle left the track, sliding— with

Wagener still aboard— somewhere between 100 and 250

feet across the grass and dirt runoff area before

colliding with an unpadded portion of a moveable

concrete barrier. The motorcycle burst into flames

that engulfed Wagner, who was thrown into the grass.

Throughout the race, including at the time of

Wagner's crash, the track’s turns were staffed by

“corner workers,” who were to act as flaggers to inform

racers to proceed with caution or to stop altogether in

the event of an accident, and who also were to serve as

emergency responders to aid downed racers. Corner

workers were provided colored flags, radios with

which they were to communicate with the control

tower and with other corner workers, and a fire

extinguisher. In roughly hour-long meetings on the

mornings of August 7 and August 8, the corner

workers had been instructed, at a minimum, when to

use the radio system and what color flags they should

wave in the event of an accident.

Corner 10 was staffed by a married couple,

Randy and Linda Bodtke, whom SFX had hired

through a temporary employment services agency.

Like other corner workers at the race, the Bodtkes

were positioned on the inside of their corner, behind a

barrier that separated and protected them from the

Ta

riders on the track. When Wagner crashed on the

outside of the track, therefore, the Bodtkes and other

corner workers had to wait for race traffic to clear,

climb over the short wall separating them from the

track, and cross the track in order to reach him.

Although Linda Bodtke radioed the control

tower and began waving her red and yellow flags when

she saw the accident, the racers temporarily continued

circling the track at race speed. After the last

motorcycle cleared their area, Randy Bodtke and the

worker at Corner 11 climbed over the barrier, crossed

the track, and reached Wagner. Both carried their fire

extinguishers to the crash scene. The worker from

Corner 11 arrived first; Randy Bodtke believed he

arrived within a minute of the crash. Both Randy

Bodtke and the worker from Corner 11 sprayed their

fire extinguishers on the grass around Wagner, and

one or the other may also have sprayed his fire

extinguisher on Wagner's back. The corner workers

had been instructed not to spray fire extinguishers in

a crash victim’s face; they had also been instructed not

to touch or move a crash victim until emergency

personnel arrived.

An ambulance and fire suspension truck

responded to the crash scene. However, both vehicles

had to wait for a gate to be opened before they could

drive onto the infield of the track. Emergency

personnel attended to Wagner and placed him on a

backboard, and at some point during this process, an

unidentified individual called for the life-flight

helicopter. Roughly forty-five minutes after the crash,

Wagener arrived, by that helicopter, at the KU Medical

Center. He was treated for multiple fractures and for

8a

serious burns over most of his lower extremities and

one hand, and he was hospitalized for several weeks

after the accident.

On August 2, 2005, Wagner, who at the time

resided in Florida, filed a diversity lawsuit in federal

district court for the District of Kansas, pleading

negligence and wanton conduct of alternative theories

of recovery under Kansas law. Wagner named as

defendants, SFX; Heartland Park Raceway, L.L.C.;

SFX Entertainment, Inc.; Clear Channel

Communications, Inc. and Jayhawk Racing

Properties, L.L.C. Following discovery, and based on

the release and waiver forms that Wagner had signed

before the race, the district court granted SFX and

Heartland Park partial summary judgment on

Wagner's negligence claims. The court granted full

summary judgment to the remaining defendants,

because the record contained no evidence from which

a jury might conclude that they owed any duty to

Wagner. The case thus went to trial solely against

SFX and Heartland Park, and solely on a theory of

wanton conduct under Kansas law.*

The parties consented to disposition of the case

by the magistrate judge, and after a five-day trial over

which he presided, the jury returned a verdict in favor

‘In ruling on the defendants’ motion for summary judgment, the

district court explained that unlike negligence, “[wlanton conduct

would be actionable because it falls outside the scope of plaintiffs

waiver.” Wagner v. SFX Motor Sports, Inc., 460 F.Supp. 2d 1263,

1271(D.Kan. 2006) (citing Wolfgang v. Mid-Am. Motorsports, Inc.,

898 F.Supp. 783, 788 (D.Kan. 1995), affd. 111 F.3d 1515 (10® Cir.

1997), to the effect that “under Kansas common law, [an] attempt

to waive lability for wanton conduct [is] unenforceable”).

9a

of Heartland Park and against SFX. The jury awarded

Wagner roughly $2.6 million in compensatory

damages. Following entry of judgment in accordance

with the jury’s verdict, SFX moved under Fed. R. Civ.

P. 50(b) for JMOL,* based on a claim of insufficient

evidence to support a jury finding of wanton conduct;

under Rule 59(a) for a new trial, based on a claim of

the court’s error im not instructing the jury on

comparative fault principles or on the distinction

between negligence and wanton conduct; and under

Rule 59(e) for alteration or amendment of the

judgment, based on Kansas’s statutory cap of $250,000

on noneconomic damages In a personal injury action.

The district court denied the motion for JMOL

and the motion for new trial, but granted in part the

motion to alter or amend the judgment. The court held

that because the parties had agreed that substantive

issues in the case were to be governed by Kansas law,

the state’s mandatory cap of noneconomic damages in

personal injury cases applied to the judgment against

SFX. The court then ordered entry of an amended

‘In its briefs, SFX refers to its Rule 50(b) motion by its pre-1991

name, as a motion for judgment notwithstanding the verdict. As

did the district court, we refer to the motion as one for judgment

as a matter of law, or JMOL. See Magnum Foods, Inc. v.

Continental Cas. Co., 36 F.3d 1491, 1497 n.1 (10 Cir. 1994).

Pursuant to Rule 50(a), SFX had moved for JMOL at the close of

both Plaintiffs evidence and its own evidence; the district court

dented both motions.

10a

judgment that reduced Wagner’s damages by just over

a million dollars.°

SFX timely appealed, arguing that the district

court erred in (1) not granting its post-trial motion for

judgment as a matter of law; (2) not instructing the

jury on comparative fault, and restricting SFX’s

introduction of evidence on that subject: (3) not

instructing the jury on the definition of simple

negligence, and the distinction between simple

negligence and wanton conduct; and (4) not granting

a new trial. SFX also filed a motion asking that we

certify to the Kansas Supreme Court the question of

whether, under Kansas law, comparative fault

principles apply within an action based solely on a

claim of wanton conduct.

On cross-appeal, Wagner argues that the

district court erred in reducing his damages award

based on Kansas's statutory cap on noneconomic

damages in personal injury actions. He further argues

that even if the cap does apply in this case, the district

court erred in applying it to the portion of the award

for loss of spousal support.

‘The district court explained that the jury award included

“$264,625 for noneconomic loss to date, $758,150.62 for future

noneconomic loss, and $263,380 91 for loss or impairment of

services as spouse, for a combined total of $1,286,156.53 in

noneconomic loss.” Wagner v. SFX Motor Sports, Inc., 522 F.

Supp. 2d 1330, 1345 (D.Kan. 2007). Applying the statutory

damage cap, the court reduced this to $250,000. Id.

lla

II. DISCUSSION

A. Motion for Judgment as a Matter of Law

1. Standard of review

We review de novo the district court’s denial of

a Rule 50(b) motion for JMOL, and we apply the same

legal standard as did the district court. United Mine

Workers of Am. v. Rag Am. Coal Co., 392 F.3d 1233,

1237 (10“ Cir. 2004). In a diversity case such as this

one, “the substantive law of the forum state governs

the analysis of the underlying claims, including

specification of the applicable standards of proof, but

federal law controls the ultimate, procedural question

whether [JMOL] is appropriate.” Specialty Beverages,

L.L.C. v. Pabst Brewing Co., 537 F.3d 1165, 1175 (10"

Cir. 2008).

A party is entitled to JMOL only if the court

concludes that “all of the evidence in the record .. .

[reveals] no legally sufficient evidentiary basis for a

claim under the controlling law.” Hysten v. Burlington

N. Santa Fe Ry. Co., 530 F.3d 1260, 1269 (10" Cir.

2008) (citing Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 150 (2000)). Drawing all reasonable

inferences in favor of the nonmoving party, which in

this case is Wagner, we thus will reverse the district

court’s denial of the motion for JMOL “if evidence

points but one way and is susceptible to no reasonable

inferences supporting the party opposing the motion.”

Hardeman v. City of Albuquerque, 377 F.3d 1106, 1112

(10" Cir. 2004) (quotation omitted). It is not our

province to “weigh evidence, judge witness credibility,

l2a

or challenge the factual conclusions of the jury.”

Hysten, 530 F.3d at 1269 (quotation omitted).

4 Wanton conduct under Kansas law

In Kansas, wanton conduct “is distinct from

negligence and differs in kind.” Bowman v. Doherty,

686 P.2d 112, 118 (Kan. 1984) (citing Kniffen v.

Hercules Powder Co., 188 P.2d 980 (Kan. 1948)).

Unlike negligence, “[w]anton conduct is established by

the mental attitude of the wrongdoer rather than by .

821, 824 (Kan. Ct. App. 2002) (citing Friesen v.

Chicago, Rock Island & Pacific R.R., 524 P.2d 1141

(Kan. 1974)). That is “[wlanton conduct is

distinguished from a mere lack of due care by the fact

that the actor realized the imminence of injury to

others from his acts and refrained from taking steps to

prevent the injury.” Bowman, 686 P.2d at 118. “This

reckless disregard or complete indifference rises

substantially beyond mere negligence.” Id. Because

“wantonness’ derives from “the mental attitude of the

wrongdoerl,]. . . acts of omission as well as acts of

commission can be wanton.” Gould v. Taco Bell, 722

P.2d 511, 518 (Kan. 1986).

To establish wanton conduct, a plaintiff must

make a two-pronged showing: (1) that the act was

“performed with a realization of the imminence of

danger”; and (2) that the act was performed with “a

reckless disregard [of] or complete indifference to the

probable consequences of the act.” Reeves v. Carlson,

969 P.2d 252, 256 (Kan. 1998); see also Gould, 722

P.2d at 518. Thus, “[tlhe keys to a finding of

wantonness are the knowledge of a dangerous

l3a

condition and indifference to the consequences.”

Reeves, 969 P.2d at 256. The plaintiff need not prove

any intent or willingness to injure. Lanning ex rel

Lanning v. Anderson, 921 P.2d 813, 818 (Kan.Ct. App.

1996) (citing Boaldin v. Univ.of Kan., 747 P.2d 811,

814 (Kan. 1987)); see also Reeves, 969 P.2d at 256.

The first prong of the tort— that the act was

performed with a realization of the imminence of

danger—may be established in two ways. First, the

plaintiff may put on direct evidence of the defendant’s

actual “knowledge ofa dangerous condition.” Lanning,

921 P.2d at 819. Second, the plaintiff may establish,

through circumstantial evidence, the defendant’s

“reason to believe that his act [might] injure another,”

because that act was taken “in disregard of a high and

excessive degree of danger, either known to Ithe

defendant] or apparent to a reasonable person” in the

defendant’s position. Id. (quotations and emphasis

omitted).

As to the tort’s second prong, reckless disregard

of or indifference to probable consequences, the Kansas

Supreme Court has explained that “a token effort to

prevent [harmful consequences] would not avoid

liability under this [prong], while definite acts which

materially lessen the chances of [those consequences]

would avoid hability.”. Friesen, 524 P.2d at 1148.

Critical to our analysis of such precautions is whether

they materially lessen the chances of the consequences

of the particular “dangerous condition” that we analyze

under the tort’s first prong.

In Reeves v. Carlson, for instance, the defendant

injured the plaintiff when, while driving intoxicated,

l4a

he ran a stop sign at an intersection and crashed

through a wall of her house. 969 P.2d at 256. The

defendant argued that the plaintiff had not established

that “he was fully aware of and clearly understood that

he was about to collide with [the plaintiffs] home and

that he was indifferent to the impending collision.” Id.

(emphasis in original). The court explained that the

defendant “failled] to recognize that the wanton

conduct” at issue “was not the collision, but his choice

to drive under circumstances that would likely or

probably result in a collision.” Id. In that case, “[t]he

precautions and care” that the defendant claimed to

have taken “did little, if anything, to reduce that risk.

Id. (emphasis added).

In assessing whether a plaintiff has established

wanton conduct, then, we must take care to apply both

prongs of the tort to the same alleged risk, whether

that risk be described narrowly (e.g., the risk of the

specific accident that occurred) or broadly (e.g., the

risk of any serious accident occurring because of the

conduct at issue — e.g., the risk of any accident when

the driver is intoxicated. See Reeves, supra.) In other

words, if the first part of Kansas’ two-part inquiry asks

whether the defendant had knowledge of a broadly

described dangerous condition, the second part of that

inquiry must ask whether the defendant recklessly

disregarded or was indifferent to the same broadly

described risk; conversely, if the first part of the test

targets the narrow, specific risk that caused the

particular accident at issue and aks if the defendant

was aware or should have been aware of that

particular specific risk, then the second part of the

analysis to be consistent must ask if the defendant was

indifferent to that specific risk. In short, a plaintiff

15a

may not establish wanton conduct by satisfying the

notice or knowledge element of the tort as to one

risk-e.g., a broad generalized risk—and the second

element of indifference of that risk to a differently

defined risk— e.g., the specific risk that caused the

accident at issue.

We need not decide in this case whether both

the knowledge of the risk and the indifference to that

risk should define risk in a generalized and broad

manner or in a narrow, specific manner, and indeed

courts seem to have used both approaches. Compare

Robison v. State, 43 P.3d 821 (Kan. App. 2002), and

Friesen v. Chicago, Rock Island & Pacific R.R., 524

P.2d 1141 (Kan. 1974), with Reeves v. Carlson, 969

P.2d 252 (Kan. 1998).

But what we can and do conclude from our

review of Kansas law is that risk must be defined

consistently for both elements of the tort of

wantonness. As will be seen here, whether the risk is

to be defined broadly (e.g., the risk of any accident in

motorcycle races generally) or narrowly (e.g., the

specific risk that a motorcycle might leave the track at

corner #10 in this race) a JMOL should have been

granted to SFX in this case so long as the risk is

defined as consistently for both elements of this test.

Finally, “[wJhether a defendant’s conduct

constitutes wantonness necessarily depends on the

facts and circumstances of each case.” Wolfgang, 111

F.3d at 1522 (applying Kansas law and citing Friesen,

524 P.2d at 1147).

3.

16a

Analysis

Wagner alleged seven grounds for wanton

conduct on the part of SFX:

a.

b.

Defendants failed to provide a safe run-

off area for foreseeable crashes.

Defendants left unnecessary moveable

concrete walls in the foreseeable run-off

area.

The concrete walls that were in the

foreseeable run-off area, where plaintiff

hit the wall, were not padded or

protected with tires, hay bales, air fences,

or other safety devices.

Defendants failed to properly train and

equip corner workers or fire fighting

personnel so that they could quickly and

effectively put out the fire that resulted

from plaintiffs crash.

Defendants failed to staff Corners 10 and

11 with adequate numbers of corner

workers, and failed to have any corner

workers on the outside of Corners 10 and

11 so that they could quickly respond to

an injured racer.

Defendants’ corner workers, fire fighting

personnel, and medica! personnel failed

to put out the fire that engulfed plaintiff,

17a

such that the fire ceased burning on its

own after running out of fuel.

g. The communications system between

corner workers and the tower was

inadequate, such that the race could be

timely stopped as soon as the accident

occurred.

(R. vol. 4 at 1091-92 (Jury Instruction No. 14).) We

think these allegations may be construed as positing

two different levels of risk, or two different “dangerous

condition|s],” Reeves, 969 P.2d at 256: the broad risk

associated with staying a motorcycle race writ large;

and the much narrower risk associated with the

conditions on Corner 10 at Heartland Park racetrack.

We address each in turn, applying Kansas’s two-

pronged test for wanton conduct and recognizing, as

did the district court, that the jury was “within its

rights to believe little, or indeed, none of the sworn

testimony” favorable to SFX. Wagner, 522 F. Supp.2d

at 1339; see Sanderson Plumbing Prods., 530 U.S. at

151 ({[Allthough the court should review the record as

a whole, it must disregard all evidence favorable to the

moving party that the jury is not required to believe.”).

a. Risk of staging a motorcycle race

To satisfy the first part of the two-part test for

wanton conduct, Wagner had to demonstrate that in

staging the race in which he was injured, SFX acted,

or failed to act, “with a realization of the imminence of

danger.” Reeves, 969 P.2d at 256. This prong of the

test is easily satisfied if the risk is broadly defined as

18a

the risk of operating a motorcycle race. The jury heard

testimony from Wagner's expert, Russell Darnell, that

the “starting point” for all motorcycle race planning is

that “crashes will happen.” (R. vol. 6 at 1591-92.)

Indeed, SFX could not rationally dispute this point,

given that it required the racers to sign a waiver form

acknowledging that “THE ACTIVITIES OF THE

EVENT(S) ARE VERY DANGEROUS and involve the

risk of serious injury and/or death and/or property

damage.” (R. vol. 1 at 142.) Wagner put on evidence

sufficient to establish that SFX realized the imminence

of danger in its overall staging of a motorcycle race.

To satisfy the second part of the two-part test

for wanton conduct at this level of risk, Wagner was

required to demonstrate that in its overall staging of

the race, SFX acted with “reckless disregard [of] or

complete indifference to the probable consequences of”

its conduct. Reeves, 969 P.2d at 256. Here, applying

the Friesen rule regarding preventative measures, we

easily conclude that Wagner failed to put on evidence

based upon which a reasonable jury could have found

that SFX acted wantonly rather than merely

negligently. Under Friesen, “a token effort” to prevent

the harmful consequences of staging a motorcycle race

“would not avoid liability” for wanton conduct, but

“definite acts which materially lessen the chances of’

such consequences would avoid liability. Friesen, 524

P.2d at 1148.

It is undisputed that SFX engaged in a number

of such definite acts to make the overall motorcycle

race safer, including opening the track for practice

runs on both the day before and the morning of the

race to permit racers to learn the track; stationing at

19a

least one corner worker at each corner, providing those

workers with a radio communication system, a fire

extinguisher, and colored flags for slowing or stopping

the race in case of an accident, and training the

workers for roughly an hour on each of the mornings

of August 7 and August 8; having two ambulances and

a fire-suppression vehicle onsite during the race;

placing protective air fencing in certain areas and tires

along certain portions of concrete barriers outside the

track; and being prepared to call for a life-flight

helicopter if the need arose. We think it clear that

while these preventative measures may not have been

perfect, they unquestionably “materially lessenled] the

chances,” Friesen, 524 P.2d at 1148, of harmful

consequences arising from SF'X’s staging of the race.

In short, SFX took many significant steps to ensure

that the race as a whole was safe.

Therefore, even if SFX acted negligently in

staging the race—a claim Wagner waived when he

signed the pre-race release form—it did not act with

“reckless disregard [of] or complete indifference to the

probable consequences of” its conduct, Reeves, 969

P.2d at 256. We thus conclude that in construing the

alleged risk and dangerous condition of conducting a

motorcycle race broadly, a reasonable jury could not

have found SFX liable for wanton conduct. Sce Fed. R.

Civ.P.50(a).

b. Specific risk associated with the

conditions on Corner 10

Wagner's case at trial, and his argument on

appeal, focused most intensely on the claim that SFX

behaved wantonly when it did not eliminate or protect

20a

with padding the concrete wall into which Wagner

crashed, or enlarge the run-off area, outside Corner 10.

To succeed on this claim based on a very specific risk

that arguably contributed to Wagner's injuries,

Wagner was required to show, first, that SFX acted, or

failed to act, with a realization of the imminence of

danger at Corner 10. Wagner could have made this

showing either through direct evidence of SFX’s actual

“knowledge of a dangerous condition” at Corner 10, or

through circumstantial evidence that SFX acted in

“disregard of a high and excessive degree of danger’ at

Corner 10, where that danger was “known |by SFX] or

apparent to reasonable person” in SFX’s position.

Lanning, 921 P.2d at 819.

While the jury was free to disregard or doubt

the credibility of SFX’s employees and former

employees who testified that they were aware of no

previous crashes at Corner 10 and that they had no

reason to believe that the concrete wall in question

would be an impact area, the jury was not free to infer

SFX’s knowledge of danger from an absence of

evidence on the issue. Wagner offered no testimony to

the effect that there had ever been a crash in the area

of Corner 10, much less that the danger of such a crash

was “known [by SFX] or apparent to a reasonable

person” in SFX’s position. Lanning, 921 P.2d a 819.

While Randy Bodtke testified that he saw two racers

go off the track at Corner 10 during the practice

sessions on August 7, he clarified on the cross-

examination that one of the motorcycles at issue

simply ran out of gas at that location and the other

had a mechanical problem, so that both had to be

pushed off the track. Bodtke then confirmed that he

“saw no riders that had traveled all of this distance

2la

across this grassy area and got down to where there

was an impact with the wall.” (R. vol. 6 at 1526.)

Wagner offered no evidence that SFX knew or should

have known of the danger posed by the configuration

of Corner 10.

Because there is no record evidence showing

that SFX acted with “a realization of the imminence

danger” when it did not take additional precautions at

Corner 10, we need not and do not reach the question

of whether SFX acted with “a reckless disregard [of] or

complete indifference to the probable consequences of”

its conduct at Corner 10. Reeves, 969 P.2d at 256; see

Lanning, 921 P.2d at 819 (“Without knowledge of a

dangerous condition, indifference to the consequences

does not become a consideration.”). We conclude that

in construing the alleged risk and dangerous condition

narrowly, a reasonable jury could not have found SFX

liable for wanton conduct. See Fed. R. Civ. P. 50(a).

However, we do observe that the general safety

precaution that SFX took in conjunction with staging

this race and which we detailed earlier would

generally apply to Corner 10 as much to other portions

of the race track. Thus, even if Wagner had put on

evidence that SFX knew Corner 10 was dangerous,

Wagner did not show that SFX was “completely

indifferent” to that danger.

Cc. Conclusions as to this issue

In this case, “all of the evidence in the record .

_ . lreveals] no legally sufficient evidentiary basis,

Hysten, 530 F.3d at 1269, for a wanton claim under

Kansas law. Under one theory of the case there was

evidence that SFX knew of the danger but it

22a

unquestionably took many steps to mitigate or prevent

injury, thereby precluding a jury conclusion that SFX

cited “incomplete indifference” to the danger. Under

the theory of the case, there was no evidence that SFX

knew or should have known ifa specific risk presented

because of the configuration or operations at Corner

10, so once again, the jury could not find wanton

conduct. Consequently, SFX was entitled to JMOL,

and the district court erred in denying SFX’s Rule

50(b) motion.

B. Remaining issues on appeal

Having held that SFX is entitled to JMOI, we

need not and do not reach SFX’s challenge to jury

instructions and to the district court’s denial of its

motion for new trial.

Iii. CONCLUSION

For the foregoing reasons, we REVERSE the

district court’s denial of SFX’s Rule 50(b) motion,

VACATE the jury’s verdict on Wagners wanton

conduct claim, and REMAND to the district court with

instructions to enter judgment as a matter of law in

favor of SFX. Wagner’s cross-appeal is dismissed as

moot, and the pending motion for certification to the

Kansas Supreme Court is denied as moot.

23a

APPENDIX B

Case: 2:05-cv-02336-JPO Document 168

Filed 11/27/2007

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

ARTHUR C. WAGNER, JR.,

individually and for the

benefit of his wife,

Jean Marie Wagner,

Case No.

05-2336-JPO

)

)

)

)

)

Plaintiff, )

)

)

SFX MOTOR SPORTS, INC., et al., )

)

)

Defendants.

MEMORANDUM AND ORDER

I. Introduction

This is a personal injury case which arises out

of a crash during a commercially sponsored motorcycle

road race. Following five days of trial, the jury

returned a verdict in favor of the plaintiff, Arthur C.

Wagner, Jr., finding wanton conduct by the race

sponsor-promoter, defendant SFX Motor Sports, Inc.

(“SFX”), and awarding nearly $2.6 million in

24a

compensatory damages (doc. 150). The jury rejected

plaintiffs wanton conduct claims against the track’s

owner-operator, defendant Heartland Park Raceway,

L.L.C. “Heartland Park”).

With judgment having been entered based on

the jury’s verdict (see doc. 154), the case now comes

before the court on SFX’s post-trial motion for

judgment as a matter of law or, in the alternative, for

a new trial (doc. 157). Also before the court is SFX’s

separate motion to alter or amend judgment (doc. 159).

These motions have been extensively briefed (see docs.

158, 160-65, & 169).

For the reasons explained below, the court

denies SFX’s motion for judgment as a matter of law

or, in the alternative, for a new trial. SFX’s motion to

alter or amend the judgment is granted in part and

denied in part, 1.e., the judgment must be reduced by

approximately $1 million in accordance with K.S.A. §

60-19a02, the Kansas statute that imposes a $250,000

“cap” on jury awards of noneconomic damages.

Il. Background and Uncontroverted Facts

On August 8, 2003, plaintiff was injured as a

result of a motorcycle crash while competing in the

“Formula USA 250K Team Challenge Endurance

Race” at the Heartland Park racetrack in Topeka,

Kansas. The track is owned by the City of Topeka, but

the City assigned its rights to operate the track to

Jayhawk Racing Properties, L.L.C. (“Jayhawk”), which

in turn assigned its rights to Heartland Park.

25a

On March 1, 2003, Heartland Park and SFX

entered intoa track rentalagreement. This agreement

authorized SFX to stage Formula USA Series and

Championship Cup Series motorcycle races at the

track from August 8 through 10, 2003.

During a race competition on August 8, 2003,

plaintiffs motorcycle slid off the 2.5 mile track at what

is known as Corner 10. Plaintiff crossed the grass and

dirt “run-off area outside Corner 10 and collided with

an unprotected portion of a concrete barrier. The

collision ignited a fire which engulfed both plaintiff

and the motorcycle. Plaintiff suffered severe injuries.

During this particular race, SFX placed corner

workers in various stations along the track. They

acted as flaggers to inform racers to proceed with

caution or stop altogether in the event of an accident.

They also served as emergency responders by helping

downed racers if necessary. At the time of plaintiffs

accident, the twocorner workers assigned to Corner 10

were Randy Bodtke and his wife, Linda Bodtke, both

of whom had been hired by SFX through a temporary

employment services agency.

On August 2, 2005, plaintiff filed suit in this

federal court against SFX, Heartland Park, and

Jayhawk, as well as SFX Entertainment, Inc. d/b/a

Clear Channel Entertainment (“SFX Entertainment”)

and Clear Channel Communications, Inc. (“Clear

Channel”).' Plaintiffs complaint pleaded negligence

‘Plaintiff resides in New York. The court has diversity subject

matter jurisdiction pursuant to 28 U.S.C § 1332(a)(1). Pretrial

(continued . )

26a

and wanton conduct as his alternative theories of

recovery. On October 27, 2006, after discovery had

been completed, the presiding U.S. District Judge,

Hon. Kathryn H. Vratil, granted partial summary

judgment in favor of SFX and Heartland Park on

plaintiffs ordinary negligence claims, based on pre-

race release executed by plaintiff and each of his fellow

competitors (doc. 66). Judge Vratil also granted

summary judgment as to a// of plaintiffs claims

against Jayhawk, SFX Entertainment, and Clear

Channel, finding there was no basis for liability of any

of these defendants. As a result, SFX and Heartland

Park were the only two defendants at trial, with

wanton conduct being the sole theory of recovery.

On January 5, 2007, pursuant to 28 U.S.C.§

636(c) and Fed. R. Civ. P. 73, the parties consented to

the disposition of this case by the undersigned U.S.

Magistrate Judge, James P. O’Hara (see doc. 73). At

trial, which began on July 30, 2007, plaintiff claimed

his injuries resulted in SFX’s and Heartland Park’s

wanton failure to provide proper protection to race

participants. As earlier indicated, the jury returned a

defense verdict for Heartland Park (the track’s owner

operator) and a verdict for plaintiff against SFX (the

race sponsor-promoter).

Ill. SFX’S Renewed Motion for Judgment as a

Matter of Law

A. Procedural Standards

'( continued)

order (doc. 62 ¥ 3(a)).

Zila

A post-trial motion for judgment as a matter of

law pursuant to Fed. R. Civ. P. 50(b) is appropriate

only if the evidence, viewed in a light most favorable to

the nonmoving party, “points but one way and is

susceptible to no reasonable inferences supporting

the party opposing the motion.”” Such motions should

be “cautiously and sparingly granted.”* In determining

whether judgment as a matter of law is proper, the

court may not weigh the evidence, consider the

credibility of witnesses, or substitute its judgment for

that of the jury.* Rather, the court must affirm the

jury verdict if, viewing the record in a light most

favorable to the nonmoving party, it contains evidence

upon which the jury could have properly returned a

verdict for the nonmoving party.” Conversely, though,

the court must enter judgment as a matter of law for

the movant if“there ts no legally sufficient evidentiary

? Saryuan v. TBP. Inc., 275 F.3d 1290, 1293 (10™ Cir. 2002) (quoting

Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10" Cir.

1991)).

*Black v. M & W Gear Co., 269 F.3d 1220, 1238, (10 Cir. 2007)

(quoting Neese v. Schuckman, 98 F.3d 542, 548 (10 Cir. 1996)).

‘Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1241 (10 Cir.

2001) (citing Lockard v. Pizza Hut, 162 F.3d 1062, 1068 (10 Cir.

1998)).

* Roberts v. Progressive Independence, Inc., 183 F.3d 1215, 1219-

20 (10 Cir. 1999) (citing //arolds Stores, Inc. v. Dillard Dep't

Stores, Inc., 82 F.3d 1533, 1546 (10" Cir. 1996)).

28a

basis . . . with respect to a claim or defense _ . . under

the controlling law.”

B. Sufficiency of the Evidence

SFX argues plaintiffs claim that SFX acted with

wanton disregard of a known or obvious risk of harm

at Corner 10 is simply not supported by the evidence

in this case. In reviewing and discussing the evidence,

SFX consistently construes the record in favor of SFX

instead of plaintiff. Although perhaps understandable,

this ultimately is fatal to SFX’s motion.

As set forth in Jury Instruction No. 15 (doc. 135

at 18-19), which was patterned after Judge Vratil’s

very detailed and well-reasoned memorandum and

order ruling on the defendants’ motion for summary

judgment (doc. 66), under Kansas law wanton conduct

is a product of a defendant’s mental attitude.’ To

establish wanton conduct, a plaintiff must show the

defendant’s realization of the imminence of danger and

a reckless disregard, complete indifference, or lack of

concern for the probable consequences of the wrongful

act.®

° Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1268

(10 Cir. 2000) (quoting Harolds, 82 F.3d at 1546-47).

"Robison v. State, 30 Kan. App. 2d 476, 479, 13 P 3d 821, 824

(2002).

* Lanning v. Anderson, 22 Kan. App. 2d 474, 479, 921 P.2d 813,

818 (1996) (quoting Boaldin v. Univ. of Kan., 242 Kan. 288, 293,

747 P.2d 811, 814 (1987)).

29a

The defendant’s realization of an imminent

danger may be established with circumstantial

evidence that (1) the defendant had reason to believe

such a danger existed, or (2) the defendant disregarded

a known or obvious risk from which harm was likely to

occur. Such evidence may be used to form a

legitimate inference as to the requisite knowledge of

the defendant.’°

SFX’s papers implicitly ignore that a

defendant’s reckless disregard or complete indifference

need not include an intent to injure." That is, since

reckless disregard and indifference are characterized

by failure to act when action is called for to prevent

injury, wanton conduct includes acts of omission as

well as acts of commission.'” Preventative measures

will preclude a finding of wantonness only where those

measures will preclude a finding of wantonness only

where those measures “materially lessen the chances

of the injury suffered by the plaintiff.”'* The ultimate

determination of whether conduct is wanton is

generally a question of fact for the jury."

° Td. at 482, 921 P.2d at 819-20.

10 Td.

'' Reeves v. Carlson, 266 Kan. 310, 314, 969 P.2d 252, 256 (1998).

"2 Gould v. Taco Bell, 239 Kan. 564, 572, 722 P 2d 511, 518 (1986).

'’ Wolfgang v. Mid-Am. Motorsports, Inc., 111 F.3d 1515, 1523

(10" Cir. 1997).

'§ Gruhin v. City of Overland Park, \7 Kan. App 2d 388, 392, 836

P.2d 1222, 1225 (1992).

30a

As set forth in Jury Instruction No. 14 (doc. 135

at 15-17), and consistent with the material factual

issues of the case as preserved in the final pretrial

order (doc. 62 at ¥ 6(a)), plaintiff alleged the following

specific grounds for wanton conduct by SFX and

Heartland Park:

ce.

Defendants failed to provide a safe run-

off area for foreseeable crashes.

Defendants left unnecessary moveable

concrete walls in the foreseeable run-off

area.

The concrete walls were in_ the

foreseeable run-off area, where plaintiff

hit the wall, were not padded or

protected with tires, hay bales, air

fences,’’ or other safety devices.

Defendants failed to properly train and

equip corner workers or fire fighting

personnel so they could quickly and

effectively put out the fire that resulted

from plaintiffs crash.

Defendants failed to staff Corner 10 and

11 with adequate numbers of corner

workers, and failed to have any corner

workers on the outside of Corner 10 and

'S In the racing industry, an air fence 1s a protective device placed

against a hardened barrier. It operates much hke an air bag inan

automobile

3la

11 so they could quickly respond to an

injured racer.

f. Defendants’ corner workers, fire fighting

personnel, and medical personnel failed

to put out the fire that engulfed plaintiff,

such that the fire ceased burning on its

own after running out of fuel.

g. The communications system between

corner workers and the tower was

inadequate, such that the race could be

timely stopped as soon as the accident

occurred.

SFX argues that none of these grounds are supported

by the evidence in this case.

SFX initially asserts that the run-off area and

barrier outside Corner 10 were not dangerous and

that, in any event, Heartland Park, not SFX, had

control over the placement of the barrier. Further,

SFX argues it did not subjectively consider the run-off

area to be dangerous. In this regard, SFX points to the

testimony of former SFX manager Kenneth Abbott,

and SFX’s director of operations, Kevin Elliott. Both

Abbott and Elhott, and most of the competitive racers

(including plaintiff), conducted pre-race test runs of

the track and none of them reported the run-off area at

Corner 10 as being unsafe. Gordon Spieckerman, a

safety officer for the Midwest Racing Association hired

by SFX to monitor the corner workers and the track on

the day of the race, as well as Bill Ritger, a race

control supervisor for SFX, also conducted a pre-race

32a

inspection of the track, and neither identified Corner

10's run-off area as unsafe.

Abbott and Elliott testified they implemented

safety barriers in all locations they felt were the

primary target zones for impact, including a portion of

the wall at Corner 10. This testimony was confirmed

by Spieckerman and Ritger.

SFX also heavily relies on the testimony of

William Fehrman, a law enforcement officer who

served as SFX’s race director on August 8, 2008.

Fehrman testified that he had a great deal of racing

experience, including intimate familiarity with

Heartland Park, having worked races there since the

track opened in the late 1980s, and including several

stints as race director since the early 1990s. According

to Fehrman, he never perceived the run-off area and

barrier outside Corner 10 to present a significant

safety hazzard, and had never received any complaints

from racers or anyone else about that corner.

Plaintiff counters by arguing evidence was

presented during trial showing that Corner 10 and its

run-off area were dangerous, that SFX had reason to

believe so, and that SFX disregarded the known or

obvious risk from which harm was likely to occur.

Specifically, plaintiff points out that Randy Bodtke, a

corner worker at Corner 10, testified that several

motorcycles had run off the track at Corner 10 during

practice runs on the day of the accident. Further,

plaintiff notes it is uncontroverted that the portion of

the wall near Corner 10 where plaintiff impacted was

unprotected, 1.e., it was not lined with tires, hay bales,

air fence, or other safety devices. Plaintiff also notes

33a

that Raymond Irwin, the principal owner of Heartland

Park, testified SFX could have instructed Heartland

Park to remove the concrete barrier outside of Corner

10, or at least could have placed safety devices along

the barriers there. Irwin testified that, if SFX had

required this action and stipulated it was a safety

issue, Heartland Park would have done so. Heartland

Park had the equipment available to move the

barriers. Additional tires were also available that

could have been used to protect against impact with

the barrier at Corner 10 where plaintiffs accident

occurred. Plaintiffs retained expert witness on

lability, Russell Darnell, also testified the concrete

barrier outside of Corner 10 could have been removed

and SFX could have padded the barriers with air fence

or other devices.

As to the corner workers and other emergency

personnel, SFX asserts that two corner workers were

stationed at Corner 10 on the day of the accident and

one of those corner workers, Randy Bodtke, was

equipped with a fire extinguisher. Mr. Bodtke testified

and used the fire extinguisher to spray plaintiffs

motorcycle and the corner worker from Corner 11 used

his fire extinguisher to put out the fire on the ground

around plaintiff after the accident. Spieckerman

testified that he felt the corner workers were

adequately trained and understood their

responsibilities after their meeting on the day of the

accident. Spieckernian, Ritger, Elliott, and Fehrman

testified they belie’ < *here were a sufficient number

of corner workers at i::cartland Park on the day of the

accident. Linda Bodtke, the other corner worker at

Corner 10, testified she was cquipped with a radio to

communicate with the control tower and she did not

34a

have any communication problems on the day of the

accident.

Plaintiff, however, counters by pointing out that

Randy Bodtke was delayed in reaching plaintiff

immediately after the accident. Although the court

believed a strong preponderance of the evidence

showed SFX timely and appropriately responded to

plaintiffs crash, there was some testimony by Mr.

Bodtke that motorcycles continued racing after the

accident and he had to wait for the last motorcycle to

pass before he could safely cross the track to attend to

plaintiff. In this regard, it is important to note that

even Abbott and Ritger conceded that the preferred

arrangement is to have three workers at each corner -

with two on the inside track, and one on the outside;

this arrangement obviously would have allowed for a

quicker response to plaintiffs plight. On the day of

plaintiffs accident, there were only twocorner workers

stationed at Corner 10 and only one at Corner 11, and

none of these individuals were positioned on the

outside of the track where plaintiff crashed.

Laura Lee Jones, another racer, testified she

was the first person to attend to plaintiff after the

accident. According to Jones, SFX’s emergency

personnel, at least initially, did not attend to plaintiff.

Jones and Billy Keener, a friend of the plaintiff and

member of his pit crew, testified they did not see

anyone using fire extinguishers at the scene of the

accident. Keener stated that, although the corner

workers were present at the scene, they did not attend

to plaintiff.

35a

Prior to the day of the accident, Randy Bodtke

had no experience as a race corner worker. His wife,

Linda Bodtke, had very limited experience as a corner

worker and even that was twenty years prior on a

much smaller track. As earlier indicated, both Mr. and

Mrs. Bodtke were hired by SFX for the race from a

temporary employment agency. Ritger and

Spieckerman conceded that inexperienced corner

workers should not be put together, but should be

paired with an experienced corner worker.

Several witnesses testified corner workers are

not to wave a red flag to stop the race without

approval from the control tower. Linda Bodtke

testified that enough time had passed between her

initial radio notification to the control tower of the

accident to her receiving authorization from the

control tower to wave the red flag that the racers had

gone all the way around the 2.5 mile track again.

Keener testified he was timing plaintiff during the

race and it took plaintiff approximately one minute

and forty seconds to complete a lap.

During trial, the court denied the defendants’

motion for judgment as a matter of law, but expressed

reservations about the strength of plaintiffs wanton

conduct claims. It should come as no surprise that,

had this case been tried to the court sitting without a

jury, there would not have been any finding of wanton

conduct on the part of SFX. That is, the trial judge

found the testimony of Abbott, Spieckerman, Ritger

and Fehrman to be exceptionally credible and almost

entirely favorable to SFX, in that all these gentlemen

are very experienced in motorcycle race operations and

safety, and all seemed quite sincere in their efforts to

36a

stage the race as safely as possible, mindful that

racing presents many inherent dangers. The court

perceived the testimony of plaintiffs retained expert

witness (Russell Darnell) to be pretty much of the

“hired gun” variety, in that he claimed to be an expert

not only on motorcycle racing but on a nearly endless

number of topics. But of course this was not a bench

trial. As earlier indicated, a trial judge does no have

veto power over a jury which draws its own reasonable

inferences from the trial record as a whole. Although

SFX implicitly ignores this major point, the jury in this

case was within its rights to believe little, or indeed,

none of the sworn testimony of SFX’s employees. The

jury was within its prerogative to deem Darnell

credible, even if the trial judge perceived him be to

quite the opposite.

In reviewing the evidence as a whole as

presented to the jury during trial in a light most

favorable to plaintiff, and indulging plaintiff all of

reasonable inferences that can be drawn from the trial

record, the court finds plaintiff has met his evidentiary

burden, although just barely so, to prove it 1s more

probably true than not true that plaintiff sustained

injuries caused by SFX’s wanton conduct. Specifically,

the court finds the testimony regarding the movability

of the concrete barriers, the availability of padding,

and the staffing of Corner 10 was sufficient for the jury

to return a verdict in favor of plaintiff against SFX.

The evidence was sufficient for the jury to reach the

conclusion that SFX had reason to believe Corner 10

and its run-off area were dangerous, or the presence of

the concrete barriers, lack of padding, or placement of

inexperienced corner workers presented obvious risks,

3/a

and SFX recklessly disregarded its realization of these

dangers.

IV. SFX’s Alternative Motion for a New Trial'®

A. Procedural Standards

Motions for new trial are committed to the

sound discretion of the trial court.'’ They are

generally regarded with disfavor and should only be

© While the jury was deliberating, the defendants moved for a new

trial or, in the alternative, a mistrial, based on the jury’s request

for and possible use of a ruler (doc. 136); without the trial judge's

knowledge or permission, a batliff had granted the jury’s request

for a ruler. Presumably the jury wanted a ruler to measure

certain distances as depicted on aerial photographs and diagrams

of the track that were admitted into evidence, as there was a

significant dispute by the parties as to how much run-off area was

available at Corner 10. The court allowed the parties to brief the

issue and convened a hearing on the record to hear oral argument

on their motion, of course outside the jury’s presence (see docs.

136-38). Ultumately, the undersigned deferred ruling on the issue,

with the understanding it would be taken up only in the event

that the jury returned a plaintiffs verdict. After the yury returned

its verdict against SFX, the above-described motion was orally

renewed by SFX. By agreement and order, the undersigned

denied that motion, without prejudice to being reasserted in SFX’s

written post-trial motions (see doc. 152). But SFX has not raised

the issue 1n the pending post-trial motions. Accordingly, the court

considers this 1ssue abandoned.

'? McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556

(1984); Hinds v. Gen. Motors Corp., 988 F.2d 1039, 1046 (10" Cir.

1993).

38a

granted with great caution.'® A “party seeking to set

aside a jury verdict must demonstrate trial errors

which constitute prejudicial error or that the verdict is

not based on substantial evidence.”””

B. Comparative Fault

SFX seeks a new trial based on the court’s

decision not to instruct the jury on comparative fault

principles. Of course, “[t]he decision whether to give

or exclude a particular jury instruction is committed to

the sound discretion of the trial court.” “In reviewing

jury instructions, the court must determine if the

instructions properly state the law and provide the

jury with ample understanding of the issues and the

standards applicable.””) “The instructions must cover

the issues presented by the evidence and accurately

state law.”” “A new trial is warranted only when a

'§ Frankhn v. Thompson, 981 F.2d 1168, 1171 (10™ Cir. 1992).

'? White v. Conoco, Inc., 710 F.2d 1442, 1443 (10 Cir. 1983).

? Audiotext Comme'ns. Network, Inc. v. US Telecom, Inc., No. 94-

2395, 1996 WL 568839, at *5(D.Kan. Sept. 4, 1996) (citing City of

Wichita v. United States Gypsum Co., 72 F.3d 1491, 1495 (10™

Cir. 1996)).

2! Crumpacker v. State, No. 00-4044, 2004 WL 3186196, at *3 (D.

Kan. Oct. 6, 2004) (citing Brig Horn Coal Co. v Commonwealth

Edison Co., 852 F.2d 1259, 1271 (10“ Cir. 1988)); see also

Audtiotext, 1996 WL 568839, at *5 (citing Gomez v. Martin

Marietta Corp., 50 F.3d 1511, 1517 (10 Cr. 1995))

2? Crumpacker, 2004 WL 3186196, at *3 (citing United Sates v.

Davis, 953 F.2d 1482, 1492 (10 Cir. 1992)).

failure to give an instruction is prejudicial in view of

the entire record.

39a

723

Instead of defendants, it was plaintiff who

initially raised the issue of comparative fault by way of

a motion in limine (doc. 96), asking the court to

preclude any reference during trial to the plaintiffs

alleged comparative fault or assumption of risk. For

the benefit of context, the court notes here its

extensive discussion of this issue in the limine order,

as follows:

> [d(citing United States v. Martin, 18 F.3d 1515, 1519 (10™ Cir.

1994)).

Plaintiff asserts that comparative fault

principles, as a matter of law, do not

apply to claims for wanton conduct.

Defendants disagree.

Plaintiff cites the Tenth Circuit

Court of Appeals’ decision in Wolfgang v.

Mid-America Motorsports, Inc. 111 F.3d

1515 (0* Cir. 1997). . . for the

unqualified proposition that Kansas

comparative fault principles have zero

application to claims for wanton conduct.

In that case, which involved a race car

crash, the Tenth Circuit held that the

trial judge had not abused his discretion

in excluding evidence of a_ pre-race

release and the plaintiffs fault. /d. at

1527-28.

AQa

Wolfgang seems quite similar to

the instant case in that both involved

commercially sponsored races in the

State of Kansas where the plaintiff had

executed a broad form release before the

race. But the court respectfully disagrees

with plaintiff that Wolfgang necessarily

and absolutely precludes admission of all

evidence of comparative fault in all cases

where wanton conduct is the only claim

presented to the jury at trial. Although

the Tenth Circuit did state that “in a

wantonness case, liability could only be

negated if the plaintiffs actions were the

sole cause of his injuries,” it also pointed

out that “a finding of wantonness

requires consideration of all the facts and

circumstances surrounding the crash.”

Id. (citing State v. Betts, 519 P.2d 655

(Kan. 1974); Friesen v. Chicago, Rock

Island & Pacific R.R., 524 P.2d 1141

(Kan. 1974)). Further, it is extremely

important to keep in mind that the

plaintiff in the Wo/fgang htigation had

admitted that his accident was his fault.

Td. “(T]he issue in the case was not the

cause of his accident, but the cause of his

extensive burns.”). In contrast, in the

case at bar, while Mr. Wagner has

indicated a willingness to stipulate that

he lost control of his motorcycle and that

led directly to the crash, the damages he

seeks are much broader than those that

were sought by Mr. Wolfgang. The

plaintiff in the present case seeks

damages not only for the serious burns

4la

and injuries he claims he sustained due

to defendants’ alleged failure to timely

aid him after the accident, but also for

injuries he claims were due to the crash

itself. Accordingly, the court is inclined

to find Wolfgang factually

distinguishable, or at a minimum that

plaintiff reads that case too broadly.

Highly summarized, plaintiff

argues: (1) comparative fault principles

apply only to the extent that contributory

negligence would have been a viable

defense to a claim before the Kansas

comparative fault statue was enacted in

1974 (K.S.A. § 60-258a); (2) as a matter

of law, ordinary negligence was not a

viable defense to a claim for wanton

conduct before the comparative fault

statute went into effect; and (3)

therefore, defendants in the case at bar

cannot rely on plaintiffs alleged fault

(which nobody suggests constitutes

wanton conduct) as a basis to compare

fault under K.S.A.§ 60°258a. This

argument has some merit, but only goes

so far.

Unfortunately, and all of the

parties agree on this point, the Kansas

statute regarding comparative

negligence, K.S.A. § 60-258a, does not

clearly articulate whether it applies to

claims for wanton conduct. Of course,

allegedly wanton conduct in a Kansas

42a

tort case typically comes into play with

the plaintiff pleading his claim in terms

of ordinary negligence, with a separate

request for an award of punitive damages

based on the standard pattern jury

instruction that refers to “willful,

wanton, or malicious” conduct. Here,

though, because of the obvious

impediment presented by the release

plaintiff signed before the race, the

defendants’ alleged wanton conduct is the

predicate to plaintiffs theory of recovery,

as opposed to a basis to seek punitive

damages. Indeed, making this case even

more atypical, plaintiffs counsel

confirmed during the limine conference

that they had made the strategic

decision not to ask the jury for punitive

damages, even if a _ verdict finding

wanton conduct is secured.

The parties have provided some

briefing (and extensive oral argument) on

the issue of whether Kansas comparative

fault principles apply in a situation such

as presented in this case, where the only

tort alleged is wanton conduct. But

neither plaintiff nor defendants have

cited any case that is directly on point.

Unfortunately, neither plaintiff

nor defendants looked far enough down-

field and timely filed a motion for partial

summary judgment, which would have

allowed this potentially pivotal issue to

43a

be developed in the context of a well-

developed record instead of hastily

prepared briefs on the eve of trial. And,

the parties have declined to accept the

undersigned trial judge’s_ practical

suggestion that they agree to have this

issue certified to the Kansas Supreme

Court before a time-consuming and

expensive trial, which evidently will

include many out-of-state witnesses and

expensive retained experts.

Given the record as it now stands,

the undersigned observes that, despite

Wolfgang, there is_ considerable

persuasive authority for the proposition

that, barring a factual stipulation

rendering the issue moot, comparative

fault principles should be apphied in any

Kansas personal injury case that alleges

less than intentional conduct. See

Wheeler v. Mo. Pac. R.R. Co., No. 88-

1231, 1988WL 142421, at *3(D.Kan. Dec.

14, 1998) (holding that the Kansas

comparative fault statue “encompasses

all personal injury actions even if wanton

conduct is alleged.”). See also Bowman v.

Doherty, 686 P.2d 112 (Kan. 1984) (in

legal malpractice case involving evidence

of wanton conduct, court applied

comparative fault principles to determine

actual damages, but not punitive

damages); Sandifer Motors, Inc. v.

Roeland Park, 628 P.2d 239, 248 (Kan.

Ct. App. 1981) (flood nuisance case,

44a

stating that “where tort liability is

predicated on conduct less culpable than

‘intentional, the general rule is to

compare fault and causation.”).

Even though plaintiff raised the

comparative fault dispute via his motion

in limine, from a trial management

perspective, it is noteworthy that

plaintiff also argues that whether

comparative fault principles apply to this

case may be moot because supposedly

there is no evidence showing that

plaintiff was at fault at all. In hght of

the sparse and conflicting case law

presented thus far on point, and in light

of plaintiffs optimistic forecast about the

nature of the anticipated evidence, the

court will exercise its discretion and deny

plaintiffs motion in limine to exclude

evidence of comparative fault. But, the

court intends to closely monitor and

tightly rein any evidence proffered by

defendants along the lines of comparative

fault, particularly given that defense

counse] have represented this evidence

will be essentially confined to plaintiffs

alleged failure to notice and then raise

concerns about the safety of the barricr

near Turn 10 of the track during the pre-

competition runs. Stated more directly,

under the circumstances, it would seem

that defendants need only refer to this

once during opening statement, establish

it a single time during plaintiffs cross-

45a

examination, and wrap things up with a

short statement during closing argument

~ the court will not allow defendants to

beat this drum endlessly.

The court intends to revisit this

issue of comparative fault at the close of

evidence and instruct the jury according

to its determination at that time. Should

the court conclude at that juncture that

comparative fault does not apply, either

as a matter of law or due to a lack of

competent supporting evidence, then the

court would be strongly inclined to give

an appropriate limiting and cautionary

jury instruction. Plaintiff is invited to

propose such an instruction well in

advance of the conference that will be

held pursuant to Fed. R. Civ. P. 51.

Doc. 120 at 4-9 (footnotes omitted).

During the instructional conference that was

conducted toward the end of trial in accordance with

Fed. R. Civ. P. 51, the court announced its decision to

decline to instruct the jury as to comparative fault in

the light of the lack of evidence showing plaintiff was

at fault. Consistent with their pretrial position, the

defendants again made brief reference to plaintiffs

failure to complain about any allegedly unsafe

conditions on the track after his pre-race practice run,

and further that the evidence showed plaintiff took

Corner 10 too fast and lost control of his motorcycle,

thus causing the crash and his ensuing injuries.

46a

Given the record presented, the court remains

of the view that there was no showing of fault on the

part of plaintiff. Even though the boilerplate release

form that plaintiff signed before the race purported to

impose a duty to inspect on plaintiff, the court simply

is unpersuaded that the mere failure by plaintiff to

notify defendants their track was dangerously

configured constitutes “fault” on his part for purposes

of K.S.A. § 60-258a. And, as to going fast around

Corner 10, that is precisely what competitive racers

are expected to do and thus it is difficult to deem that

fault within the meaning of the comparative fault

statute. This effectively renders moot the issue of

whether comparative fault applies to cases involving

claims for wanton conduct. But in any event the court

is now of the view it would have been improper, as a

matter of law, to compare wanton conduct with

conduct consisting at most, of simple negligence.

Regardless, the terms of whether SFX suffered

any prejudice, it is important to remember that the

court instructed the jury in this case as follows:

During this trial, you have heard

evidence concerning the conduct of

plaintiff and other racers in the race in

which plaintiff participated. You also

have heard evidence about the agreement

plaintiff signed before the race, setting

forth the responsibility of racers to report

safety hazards. This evidence has been

admitted by the court for a limited

purpose. That 1s, you may consider this

evidence only as it may be relevant to

Ala

plaintiffs claim that defendants acted

wantonly.

Doc. 135, Instruction 16. The court concludes it was

not prejudicial error to refuse to instruct the jury as to

comparative fault. The above-described instruction

was proper. SFX is not entitled to a new trial on this

basis.

C. Wantonness v. Negligence

SFX also seeks a new trial on the basis that the

court’s preliminary and final instructions regarding

wanton conduct were improper because they did not

adequately distinguish claims for ordinary negligence

from claims of wanton conduct. As noted above, the

court’s wanton conduct instruction was _ closely

patterned after Judge Vratil’s memorandum and order

granting in part the defendants’ motion for summary

judgment.** This instruction properly state the law

and provided the jury with ample understanding of the

issues presented by the evidence and the applicable

standards. The decision to exclude instructions as to

ordinary negligence, which all agree was not a claim

by plaintiff that remained in the case at trial, was

certainly within the court’s discretion. As stated

during trial, to minimize potential jury confusion, the

court simply chose to instruct the jury as to what this

case 1s about, not as to what it is not about. Therefore,

the court finds its refusal to give SFX’s proposed

** See Jury Instruction No. 15 (doc. 135 at 18-19) and Judge

Vratil’s memorandum and order (doc. 66)

48a

instruction on this basis does not constitute prejudicial

error.

D. Subsequent Remedial Measures

SFX argues the court erred by admitting Exhibit

73a, which is an aerial photograph showing the run-off

area at Corner 10. This photograph was taken after

the accident in question and, more to the point, after

Heartland Park had removed the concrete barrier

outside of Corner 10. In the photograph, the concrete

barrier removed after plaintiffs accident is depicted as

a dark line; the other barriers depicted in Exhibit 73a

are shown as white lines.

Before trial, consistent with Fed. R. Evid. 407's

general proscription against the use of evidence of a

defendant's subsequent remedial measures, the court

granted defendants’ motion in limine to exclude

evidence regarding changes that were made to the

track after plaintiffs accident; the court so ruled

because none of the various exceptions to Rule 407

were applicable, i.e., defendants stipulated Heartland

Park had control over the barrier outside of Corner 10

and that it was feasible to move the barrier with the

proper equipment (see doc. 120 at 13).

During trial, plaintiff moved to admit Exhibit

73a, a post-remedial measures photograph which had

been discreetly retouched so as to show the barrier in

question. Defendants objected on the basis it did not

accurately depict where the barrier was located at the

time of the accident and that the jury would believe

the barrier was completely removed. After closely

49a

reviewing the revised exhibit, the court overruled

defendants’ objection, reasoning that the dark line

reasonably depicted the barrier outside Corner 10.

The court respectfully disagrees with SFX’s

assessment of Exhibit 73a. Plaintiff adequately

established the dark line accurately represented the

placement of the barrier at the time of the accident.

Further, the court is unpersuaded the dark line, as

opposed to a white line, constituted evidence of

subsequent remedial measures beyond the scope of the

limine ruling. In this regard, it is important to

remember there was no testimony presented to the

jury as to when the photograph was taken. No

evidence was presented during trial that defendant

had moved the barrier outside Corner 10 after

plaintiffs accident; whether in response to the accident

or otherwise. Thus, the admission of Exhibit 73a

clearly was not prejudicial error.

F.. Future Medical Expenses

SFX argues the evidence was insufficient to

support the jury’s award of $213,750 for future medical

expenses. Specifically, SFX contends plaintiff did not

present sufficient evidence of the cost of any future

medical procedures that plaintiff may undergo.

Plaintiff argues there was ample evidence of the future

medical expenses that plaintiff will incur over the rest

of his life due to the accident at Heartland Park.

The court, as mentioned earlier, has the

discretion to grant a new trial ifa verdict appears to be

50a

against the weight of the evidence.” But asa general

rule the court must be mindful not to usurp the role of

the jury, and must exercise its discretionary power

only in exceptional circumstances where the verdict

was clearly against the weight of the evidence.” “A

new trial is not warranted simply because the court

would have reached a different verdict.””’ A party

seeking to set aside a jury verdict, “bear[s] the heavy

burden of demonstrating that the verdict was clearly,

decidedly, or overwhelmingly against the weight of the

evidence.”™ In considering SFX’s motion for new trial,

the court must view the evidence in a light most

favorable to plaintiff.”

It is true plaintiff did not present evidence of the

specific amounts of his anticipated future medical

expenses. Nevertheless, the court finds there was

sufficient evidence and testimony from which the jury

could estimate or infer that plaintiff would incur

future medical expenses in the amount of $213,750.

John Woeste, M.D. testified he recommended plaintiff

see a neurosurgeon to discuss his options for future

> Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1125 (10 Cir.

1995).

*° Rivera v. Rivera, 262 R. Supp.2d 1217, 1230-31 (D. Kan. 2003)

(citation omitted).

” Hillman v. US. Postal Serv., 169 F. Supp.2d 1218, 1222 (D.

Kan. 2001) (citation omitted); accord Boyce v. Bd. of County

Comm'rs, 857 F. Supp. 794, 797 (D. Kan. 1994).

*® Blanke v Alexander, 152 F.3d 1224, 1236 (10" Cir. 1998)

(internal quotations and citations omitted )

*% Griffin v. Strong, 983 F 2d 1544, 1546 (10" Cir. 1993).

5la

surgery on his lower back, such as spine fusion. Dr

Woeste also described the pain management

techniques he has prescribed for plaintiff and

indicated plaintiff would continue to need pain

management care for the remainder for his life. Dr.

Woeste testified plaintiff is likely to develop post-

traumatic arthritis in several of his joints as he ages.

Dr. Woeste’s testimony was buttressed by Todd

Northrup, M.D., who performed knee surgery on

plaintiff in 2005. In his opinion, plaintiff will have

post-traumatic arthritis in his knee, back, hip, and

shoulder. He was expected to perform plaintiffs

upcoming shoulder surgery and testified plaintiff

would need approximately two to three sessions of

physical therapy for the shoulder per week for twelve

weeks following the surgery.

Exhibit 9811 is a summary of plaintiffs medical

bills from the time of the accident up to 2007. The

total is shown as $881,650.51. Plaintiffs medical

expenses are itemized in Exhibit 98A-I, 98S-U, 98AA-

CC, 103, and 106. The jury was also instructed that

plaintiffs remaining life expectancy is 38.2 years.”

From all the foregoing evidence, the court finds

the jury could properly infer plaintiff would incur

$213,750 in future medical expenses over the

remainder of his life. ‘To be sure, given plaintiff's fairly

good recovery, a much lower award for future medical

expenses also would have been within the evidence.

But the court cannot say the jury’s determination that

® Doc. 135, Instruction No. 18

52a

plaintiff was entitled to recover the specified amount

was clearly, decidedly, or overwhelmingly against the

weight of the evidence.

V. SFX’s Motion to Alter or Amend the Judgment

Based on the Kansas Statutory Cap on

Noneconomic Damages

SFX’s motion to alter or amend the judgment

raises two issues: (1) the jury’s award of future medical

expenses; and (2) application of the Kansas statutory

cap on noneconomic damages. As discussed above, the

court finds plaintiff presented sufficient evidence to

support the award of future medical expenses. Thus,

SFX’s motion to alter or amend the judgment as

relates to the first issue is dented.

As concerns noneconomic damages, the record

reflects the parties’ stipulation during the final

pretrial conference that the substantive issues in this

case are controlled by Kansas law.*’? Under Kansas

law, specifically, K.S.A. § 60-19a02b, “[iln any personal

injury action, the total amount recoverable by each

party from all defendants for all claims for

noneconomic loss sha// not exceed a sum total of

$250,000" (emphasis added). According to subsection

(d) of K.S.A. § 60-19a02, “lilf the verdict results in an

award for noneconcnic loss which exceeds the limit of

this section, the court sha// enter judgment for

$250,000 for all party’s claims for noneconomic loss”

(emphasis added).

See pretrial order. (doc. 624 3(d)).

53a

Here, the jury awarded plaintiff $264,625 for

noneconomic loss to date, $758,150.62 for future

noneconomic loss, and $263,380.91 for loss or

impairment of services as spouse, for a combined total

of $1,286,156.53 in noneconomic loss. These awards

were in addition to $647,875 for past medical

expenses, $213,750 for the previously discussed future

medical expenses, and $380,086 in future economic

loss, for a combined total of $1,241,711 in economic

losses.

As a matter of law, the court finds, pursuant to

the Kansas statutory cap, the portions of the jury’s

award for noneconomic loss to date and for future

noneconomic Joss must be reduced. That is, the jury’s

award of such damages in the amount of $1,286, 156.53

must be reduced. That is the jury’s award of such

damages in the amount of $1,286,156.53 must be

reduced to $250,000.

SFX argues the $263,380.91 award of loss or

impairment of services as spouse is subject to the

statutory cap. As discussed in Wolfgang v. Mid-

America Motorsports, Inc., 914 F.Supp. 434, 438-39

(D.Kan. 1996), affd 111 F.3d 1515, 1529 (10" Cir.

1997), this determination depends on whether loss of

consortium claims are economic or noneconomic in

nature. Jury Instruction No. 19 (doc. 135 at 24) states

as follows:

If you find for the plaintiff, you

may allow a sum which will constitute

fair and reasonable compensation for the

loss or impairment of plaintiffs ability to

54a

perform services as a husband resulting

from injury sustained by him.

If arriving at the amount of

recovery, you should consider the loss or

impairment of plaintiffs ability to

perform services in the household and in

the discharge of this domestic duties, and

the loss or impairment of plaintiffs

companionship, aid, assistance, comfort

and society.

There is some evidence about the types of household

services plaintiff provided before and after his

accident. But there was noevidence at trial regarding

the monetary value of household services in this case.

Accordingly, the court finds the statutory cap applies

to the entire loss of consortium award.”

Plaintiff argues SFX did not properly preserve

the application of the statutory cap as an affirmative

defense in the pretrial order. Of course, under Fed. R.

Civ.P. 16(e), the pretrial order controls the subsequent

course of the case and evidence or legal theories that

are not at least implicitly raised in the pretrial order

are generally barred at trial unless admitted without

objection.* Although SFX did not specifically state in

the pretrial order the Kansas statutory cap would

? Sec Wolfgang, 914 F. Supp. at 139 (citing Fenstermacher v.

Telelect, Inc., No. 90-2159, 1992 WL 175114, at *13 (D. Kan. July

17, 1992); Marely v. Chem. Waste Mgmt., Inc., No. 91-1487, 1993

WL 390055, at *3 (D. Kan. Sept. 27, 1993)).

3’ Wilson v. Muckala, 303 F.3d 1207, 1215 (10 Cir. 2002).

55a

apply to any damages awarded by the jury, the court

finds SFX did not waive application of the statutory

cap. In the court’s view, there was no need to plead

the cap as an affirmative defense. That is, especially

given the unambiguous and mandatory language in

the applicable Kansas statute about caps on

noneconomic damages, and given that the pretrial

order recites the parties’ stipulation that Kansas

substantive law is controlling, the court is wholly

unpersuaded by the cases cited by plaintiffs that SFX

had to specifically plead the damages cap in the

pretrial order.“ Nor is the court persuaded that

plaintiff got sand-bagged by SFX by making any

strategic or tactical decisions in reliance upon the

assumption that the cap was inapplicable.”

VI. Conclusion and Order

In consideration of the foregoing,

IT IS HEREBY ORDERED:

* See, e g., Bentely v. Cleveland County Board of County Comm'rs,

41 F.3d 600 (10" Cir. 1994); Flenory v. Eagle’s Nest Apartments,

28 Kan. App.2d 906, 22 P. 3d 613 (2001).

* In his responsive brief, plaintiff argues that there are at least

six tactics available to litigants to avoid the effects of Kansas

damage caps (doc. 162 at 4-5). But conspicuously missing from

plaintiffs response is any credible evidence (by affidavit or

otherwise) that any of these purported tactics actually were

considered by his attorneys before or during trial.

56a

: SFX’s motion for judgment as a matter of

law, or in the alternative, for a new trial (doc. 157) is

denied.

2. SFX’s motion to alter or amend the

judgment (doc. 159) is granted in part and denied in

part. That is, the motion is granted with regard to the

recoverable total amount of noneconomic damages, but

the motion is denied with specific regard to the jury’s

award of future medical expenses.

The Clerk shall file an amended

judgment in plaintiffs favor against SFX for

$1,491,711, plus the costs of this action. Plaintiffs

claims against Heartland Park shall remain dismissed,

with prejudice.

Dated this 27" day of November, 2007, at

Kansas City, Kansas.

s/James P. O’Hara

James P. O’Hara

U.S. Magistrate Judge

Ala

APPENDIX C

Case: 2:05-cv-02336-KHV Document 66

Filed 10/27/2006

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

ARTHUR C. WAGNER, JR.,

individually and

ARTHUR C. WAGNER, JR.,

for the benefit of

JEAN MARIE WAGNER,

%

CIVIL, ACTION

Case No.

05-2336-KHV

SFX MOTOR SPORTS, INC.,

et al.,

)

)

)

)

)

)

Plaintiff, )

)

)

)

)

)

)

Defendants.

MEMORANDUM AND ORDER

Arthur C. Wagner, Jr., individually and on

behalf of his wife, Jean Marie Wagner, brings suit

against SFX Motor Sports, Inc. d/b/a Clear Channel

Entertainment-Motor Sports, SFX Entertainment, Inc.

d/b/a Clear Channel Entertainment, Clear Channel

Communications, Inc., Jayhawk Racing Properties,

L.L.C., and Heartland Park Raceway, L.L.C. Plaintiff

58a

alleges ordinary negligence, wanton conduct and loss

of consortium arising out of injuries which he

sustained while competing in a motorcycle race on

August 8, 2003. This matter comes before the Court

on Defendants’ Motion for Summary Judgment (Doc.

#54) filed July 17, 2006. For reasons set forth below,

the Court sustains defendants’ motion in part.

Legal Standards

Summary judgment is appropriate if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,

show no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter

of law. See Fed. Civ. P. 56(c); accord Anderson v.

Liberty Lobby, Inc., 477 U_S. 242, 247 (1986); Vitkus v.

Beatrice Co., 11 F.3d 1535, 1538-39 (10" Cir. 1993). A

factual dispute is “material” only if it “might affect the

outcome of the suit under the governing law.”

Anderson, 477 U.S. at 248. A “genuine” factual

dispute requires more than a mere scintilla of

evidence. Id. at 252.

The moving party bears the initial burden of

showing the absence of any genuine issue of fact.

Celotex Corp. V. Catrett, 477 U.S. 317, 323 (1986);

Hicks v. City of Watonga, 942 F.2d 737, 743 (10" Cir.

1991). Once the moving party meets its burden, the

nonmoving party must demonstrate that genuine issue

remain for trial “as to those dispositive matters for

which it carriers the burden of proof.” Applied

Genetics Int'l, Inc. v. First Affliated §, Inc., 912 F.2d

1238, 1241 (10" Cir. 1990); see also Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87

59a

(1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939

F.2d 887, 891 (10" Cir. 1991). The nonmoving party

may not rest it’s the pleadings but must set forth

specific facts in opposition of the motion. Applied

Genetics, 912 F.2d at 1241.

The Court must view the record in the light

most favorable to the party opposing the motion for

summary judgment. Deepwater Invs., Ltd., v. Jackson

Hole Ski Corp., 938 F.2d 1105, 1110 (10" Cir. 1991).

Summary judgment may be granted if the nonmoving

partys evidence is merely colorable or is_ not

significantly probative. Anderson, 477 U.S. at 250-51.

“In a response to a motion for summary judgment, a

party cannot rely on ignorance of facts, on speculation,

or on suspicion, and may not escape summary

judgment in the mere hope that something will turn

up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10™

Cir. 1988). Essentially, the inquiry is “whether the

evidence presents a sufficient disagreement to require

submission to the jury or whether it is so one-sided

that one party must prevail as a matter of law.”

Anderson, 477 U.S. at 251-52.

Factual Background

The following facts are uncontroverted, deemed

admitted, or, where disputed, viewed in a light most

favorable to plaintiff.

On August 8, 2003, Arthur Wagner wrecked his

motorcycle while competing in the Formula USA 250K

Team Challenge Endurance Race at Heartland Park

Topeka racetrack in Topeka, Kansas. The City of

60a

Topeka owned the racetrack, but it had assigned the

right to operate the racetrack to Jayhawk Racing

Properties, L.L.C. “Jayhawk”).' Jayhawk in turn had

assigned its right to operate the racetrack to

Heartland Park Raceway, L.L.C. (“Heartland”).”

On March 1, 2003, Heartland entered into a

track rental agreement with SFX Motor Sports, Inc

d/b/a Clear Channel Entertainment-Motor Sports

(“SFX Motor Sports”). In the agreement, Heartland

authorized SFX Motor Sports to stage Formula USA

Series and Championship Cup Series (“CCS”)

motorcycle races at the racetrack from August 8

through 10, 2003. The track rental agreement provided

in pertinent part as follows:

This contract is entered into as of

the 1* day of March, 2003 by and among

HEARTLAND PARK RACEWAY, LLC, a

Kansas’ limited liability company

(hereinafter referred to as “HPT” or

“Lessor”), and [SFX Motor Sports, Inc.

'The record does not contain the agreement between the City and

Jayhawk, but plaintiff admits that the City made such an

assignment.

? The record does not contain the agreement between Jayhawk

and Heartland, but plaintiff admits that Jayhawk made such an

assignment.

> SFX Entertainment, Inc. d/b/a Clear Channel Entertainment

(“SFX Entertainment”) and Clear Channel Communications, Inc.

(“Clear Channel”) are affiliates of SFX Motor Sports, but they had

no involvement with respect to the Formula USA or CCS events

which occurred at the racetrack in August of 2004

11.

bz.

13.

20.

6la

d/b/a Clear Channel Entertainment -

Motor Sports] (hereinafter referred to as

“Lessee”).

> a a 4

HPT will make available to Lessee specific

areas of the premises commonly known as

Heartland Park Topeka . . ., consisting

primarily of a drag strip, road racing course,

dirt track, off-road facilities and ancillary

buildings, for the purpose indicated on Exhibit

A (the “Event”).

kkk

HPT requires that there be a minimum of one

(1) licensed and staffed Paramedic Ambulance

on the Premises during all events. The cost of

[two] staffed Paramedic Ambulancels] [on duty

from 8:00 AM until 6:00 PM, each day] shall be

included in the Track Rental.

HPT will furnish the following equipment for

use of Lessee: Fire Extinguishers: 10 and 20 Ibs.

charged; Oil Dry; Shovels; Brooms; and Water

Jugs. In addition, one (1) wrecker, one flatbed

truck and one (J) fire truck are also available

for use.

HPT will provide a marked location for all

corner workers who must remain within the

marked areas, except as may be specifically

required to perform their duties.

kKkx

Lessee warrants and represents that all racing

or on-track activities shall be conducted in

accordance with the rules and regulations of the

62a

governing sanctioning body in effect as of the

date of the Event. Lessee shall be responsible

for enforcing ... all rules and regulations.

Lessee shall also be responsible for the conduct

of all workers, officials, spectators, guests or

other parties on the Premises during the terms

of this Agreement, as well as the safe conduct of

the Events. Lessee shall establish a minimum

level of staffing necessary for the conduct of on-

track activities and shall inform HPT of the

minimum. Lessee shall not conduct any on-

track activities unless the minimum

requirement is met. If HPT determines, in its

sole discretion, that inadequate staffing is in

place, HPT may place additional workers on

location at the expense of Lessee. HPT MAKES

ABSOLUTELY NO WARRANTIES, EITHER

EXPRESSED OR IMPLIED concerning the

safety of any persons or property as a result of

complying with the requirements of this

Agreement. Lessee acknowledges that motor

sports activities are hazardous and

participation can lead to serious or fatal injury;

the hazards of motor sports are known to its

members; and its members, participants, their

crews and guests have assumed the risk of any

injury by choosing to participate and attend the

event at the Premises.

Exhibit N to Defendant’s Memorandum In Support Of

Motion For Summary Judgment (“Defendant's

Memorandum’) (Doc. #55) filed July 17, 2006.

Some time in 2003, before the races in August,

Heartland entered into an oral agreement with Great

63a

American Management (“GAM”) by which it delegated

some duties to GAM, including opening the gates of

the racetrack, preparing the bathrooms, ensuring that

the public address system worked and providing

water.

Before the race on August 8, plaintiff signed a

release and waiver of liability. The waiver provided in

pertinent part as follows:

IN CONSIDERATION (a) of being permitted to

compete . . . EACH OF UNDERSIGNED, for

himself/herself, his/her personal representatives,

parent or legal guardian, heirs, and next of kin:

kKkx

z. HEREBY RELEASE, WAIVES, DISCHARGES

AND COVENANTS NOT TO SUE SFX Motor

Sports, Inc., d/b/a Clear Channel

Entertainment-Motor Sports, and its affiliates

and related companies including specifically

SFX Entertainment, Inc., d/b/a Clear Channel

Entertainment, Clear Channel

Communications, [I]nc., . . . track operators, . .

owners and lessees of premises used to conduct

the Event(s), . . . all for the purposes herein

referred to as “Releasees’, FROM ALL

LIABILITY TO THE UNDERSIGNED, his

personal representatives, parent or legal

guardian, assigns, heirs, and the next of kin

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

64a

RELATED TO THE EVENT(S), WHETHER

CAUSED, IN WHOLE OR IN PART, BY THE

SOLE OR CONCURRENT NEGLIGENCE OR

WRONGDOING, STRICT LIABILITY OR

FAULT OF THE RELEASEES OR

OTHERWISE.

Exhibit J to Defendant's Memorandum at 14.‘

During the race, plaintiffs motorcycle entered

corner 10 of the racetrack at a speed of 100 to 130

miles per hour, and began to slide. The motorcycle hit

a speed bump, and plaintiff and the motorcycle slid

across the grass and dirt on the outsice of corner 10

(the “run-off’ area) into an unprotected concrete

barrier approximately 25 to 50 feet away. The collision

ignited a fire which engulfed both plaintiff and the

motorcycle, and plaintiff suffered severe injuries.

Before the race, Keith Abbott and Kevin Elliott,

who worked for SFX Motor Sports, made a few trips

around the racetrack to identify primary target zones

of impact. Gordon Spieckerman, another employee of

SFX Motor Sports, rode his motorcycle around the

racetrack to inspect the track condition and corncrs.

The day before plaintiffs accident, at least three

motorcycles ran off the racetrack at corner 10 at slower

than competition speed. Before the race, track

operators placed tires in front of the section of the

concrete barrier around corner 10 which William

* The waiver does not specifically identify Jayhawk and

Heartland, but the terms “track operators” and “owners and

lessees of premises used to conduct the Event(s)” are sufficient to

encompass these defendants.

65a

Ritger, a part-time employee of SFX Motor Sports,

considered to be the “big impact zone” of that corner.

Exhibit F to Defendant’s Memorandum at 64. Track

operators placed no tires or other safety devices in

front of the rest of the concrete barrier surrounding

corner 10, so about 70 feet of the barrier lacked

additional protection. Plaintiffs accident occurred in

an area of corner 10 with an unprotected concrete

barrier.

During the race, track operators placed corner

workers in stations along the racetrack. The corner

workers acted as flaggers to inform the racers to

proceed with caution or stop altogether in the event of

an accident. They also served as emergency

responders by helping downed racers if necessary. The

track rental agreement stated that Heartland would

provide marked locations for the corner workers. At

each corner station, Heartland placed two fire

extinguishers and a radio to communicate with the

corner tower. Although Heartland hired some of the

corner workers through a temporary employment

agency, SFX assumed primary responsibility for hiring

and training corner workers.

On August 8, with Spieckerman’s help, Ritger

placed corner workers around the track. Ritger

assigned two corner workers, Randy and Linda

Bodtke, to corner 10. No defendant asked the Bodtkes

if they had prior experience as corner workers, and

Randy Bodtke had no prior experience. Linda Bodtke

was receiving social security disability relating to her

back condition and asthma, and she had only served as

a corner worker some 20 years earlier at a circular dirt

track. Ritger stationed both Bodtkes on the inside of

66a

the corner, and no corner workers were outside of

corner 10. After plaintiff crashed on the outside of

corner 10, oncoming racers delayed Randy Bodtke in

reaching plaintiff.

Corner workers received instruction from track

operators on using flags to communicate with racers

during the race. Track operators instructed corner

workers that they could not use a red flag to stop a

race without authorization from the contro] tower. On

August 8, when Linda Bodtke sought to stop the race

for plaintiff's accident, this authorization was delayed.

Also, Linda Bodtke had been instructed to hold the red

flag still as she displayed it to the racers. Typical pre-

race training instructed corner workers to waive the

red flag aggressively in such a situation. The corner

workers received no instruction or training on proper

use of fire extinguishers in case a rider caught on fire.

No corner worker ever attempted to help plaintiff. The

fire that engulfed him and his motorcycle burned until

it ran out of fuel.

On the day of the race, Heartland provided two

staffed ambulances pursuant to the track rental

agreement. The first ambulance arrived

approximately five minutes after the accident, but the

emergency personne! in that ambulance did not

attempt to help plaintiff. It was not until the second

ambulance arrived approximately 12 minutes after the

accident, that any emergency personnel began to

render aid. The record contains no evidence that

Heartland of SFX Motor Sports used the wrecker,

flatbed truck or fire truck to respond to the crash site.

67a

Analysis

Plaintiff claims that defendants acted with

negligence and wantonness in disregarding the danger

of the unprotected concrete wall and failing to provide

adequate emergency response to the crash. Plaintiff

seeks damages for his loss and loss of consortium on

behalf of his wife. Defendants seek summary

judgment on all claims, arguing that as a matter of law

(1) Jayhawk, Heartland, SFX Entertainment and

Clear Channel owed no duty of care to plaintiff, (2)

any duty of care that existed was properly discharged;

and (3) plaintiffs loss of consortium claim cannot be

maintained without an underlying cause of action.

i. Duty

To establish negligence under Kansas law,

plaintiff must prove (1) the existence of a duty, (2)

defendants’ breach of that duty, (3) injury and (4)

causation between the breach and the injury. South v.

McCarter, 280 Kan. 85, 94, 119 P.3d 1, 8 (2005). A

claim of wanton conduct also requires defendants’

breach of an applicable duty. See Elliott v. Peters, 163

Kan. 631, 636 , 185 P.2d 139, 144 (1947). Jayhawk,

Heartland, SFX Entertainment and Clear Channel

argue that they did not owe a duty of care to plaintiff.”

° SFX Motor Sports does not dispute that it owed a duty to

plaintiff. From the record, it appears that SFX Motor Sports owed

a duty to ensure safe racing conditions and to employ only

competent workers. See Wolfgang v. Mid-Am. Motorsports, Inc.,

111 F.3d 1515, 1524 (10 Cir 1997) (duty of care evidenced by

responsibility for safety measures); Plains Res., Inc. v. Gable, 235

(continued . )

68a

The existence of a duty under Kansas law is grounded

in foreseeability; “laln injury is foreseeable so as to

give rise to a duty of care where a defendant knows or

reasonably should know that an action or the failure to

act will likely result in harm.” Gragg v. Wichita State

Univ., 261 Kan. 1037, 1056, 934 P.2d 121, 135 (1997).

Although the existence of a duty is ultimately a

question of law, see Miller v. Dillard’s, Inc., 166 F.

Supp.2d 1326, 1331 (D.Kan. 2001), foreseeability is a

fact-driven inquiry to be decided by the jury, see

Gardin v. Emporia Hotels, Inc., 31 Kan. App.2d 168,

175, 61 P.3d 732, 738 (2003). The Court may

determine foreseeability as a matter of law only where

the record contains no evidence that the cause of

plaintiff injuries was foreseeable. Id.

A. Duty Owed By Jayhawk

Jayhawk acquired from the City of Topeka the

right to operate Heartland Park Topeka racetrack for

public entertainment. As the general concessionaire,

Jayhawk retained a duty to exercise reasonable and

ordinary care for the safety of the premises unless it

divested itself of all responsibility for operation of the

facility. See Griffin v. Rogers, 232 Kan. 168, 179, 653

P.2d 463, 471-72 (1982). Before August of 2003,

Jayhawk assigned its right of operation to Heartland,

*( . continued)

Kan. 580, 591, 682 P.2d 653, 662 (1984) (employer has duty to hire

and retain competent employees); McDonnell v. Music Stand, Inc.,

20 Kan. App.2d 287, 293, 886 P.2d 895, 900 (1995) (employer has

duty to hire competent independent contractors where safety at

risk) These duties closely resemble the duties which Heartland

owed to plaintiff, explained below.

69a

which leased the track to Heartland, which leased the

track to SFX Motor Sports for motorcycle races on

August 8 through 10, 2003. Plaintiff admits that this

assignment divested Jayhawk of all supervisory

control over the motorcycle races held at the racetrack

during that period. The record contains no evidence

that Jayhawk was involved in the race. The Court

therefore finds that Jayhawk owed no duty to plaintiff.

Defendants’ motion for summary judgment as to

plaintiffs negligence claim against Jayhawk is

sustained.

B. Duty Owed By Heartland

Through its agreement with Jayhawk,

Heartland assumed control of the operation of the

racetrack. Heartland then entered into agreements

with both SFX Motorsports and GAM to conduct

certain aspects of the races on August 8 through 10.

Heartland argues that these arguments relieved it of

its duty to plaintiff. The Court disagrees.

i. Heartland’s Agreement With SFX

Motorsports

Heartland entered into a _ written lease

agreement with SFX Motor Sports which allowed SFX

Motor Sports to stage motorcycle races at the facility

from August 8 through 10, 2003. In the track rental

agreement, however, Heartland retained significant

supervisory authority. Under the agreement,

Heartland retained the right to mark the location of all

corner workers. Heartland also provided two staffed

ambulances during the days of the races, as well as

70a

fire extinguishers, a wrecker, a flatbed truck, and a

fire truck. Heartland also retained discretion to place

extra workers around the track if it determined that

additional workers were needed. Such contractual

terms may be sufficient to establish a duty of care by

Heartland. See Wolfgang v. Mid-Am. Motorsports,

Inc., 111 F.3d 1515, 1524 (10" Cir. 1997) (duty to third

party beneficiaries may be created by contractual

terms intended to secure safety of third parties).

Given the inherent danger of motorcycle racing and

the nature of Heartland’s obligation to secure the

safety of racers, Heartland is not entitled to summary

judgment on the theory that plaintiffs injuries were

unforeseeable and Heartland had no duty of care to

prevent them.

Although SFX Motor Sports assumed primary

responsibility for hiring and training corner workers,

the record indicates that Heartland was also involved

inemployment matters. Specifically, Heartland hired

the two corner workers stationed at corner 10 on the

day of the accident and the emergency personnel

responsible for operating the on-site ambulances.

Defendants argue that these persons’ were

independent contractors and that the defendants

cannot be held liable for the negligence of such

persons. Plaintiff does not address whether the corner

workers and emergency personnel are employees or

independent contractors. This distinction is normally

a question of fact for the jury. McCubbin v. Walker,

256 Kan. 276, 281, 886 P.2d 790, 795 (1994). Such

distinction, however, is irrelevant here. Plaintiffs

claim is rooted in the direct negligence of Heartland

and SFX Motor Sports in hiring incompetent workers;

it is not premised on a theory of vicarious liability.

Tla

Under Kansas law, an employer has a duty to “hire

and retain only safe and competent employees,” Plains

Res., Inc. v. Gable, 235 Kan. 580, 591, 682 P.2d 653,

662 (1984), and a duty to “employ a competent and

careful contractor . . . to do work which will involve a

risk of physical harm unless it is skillfully and

carefully done.” McDonnell v. Music Stand, Inc., 20

Kan. App.2d 287, 293, 886 P.2d 895, 900 (1995)

(adopting Restatement (Second) of Torts § 411). The

work of the corner workers and the emergency

personnel clearly involved a risk of physical harm to

race participants if the work was not performed

correctly. The evidence reveals a genuine issue of

material fact whether Heartland’s hiring of inadequate

corner workers and emergency personnel created a

foreseeable risk of harm, and Heartland is not entitled

to summary judgment on the theory that it had no

duty of care under Gable and McDonnell. Heartland

is not entitled to summary judgment on the ground

that its agreement with SFX Motor Sports relieved it

of its duty.

ll. Heartland’s Agreement With

GAM

Heartland also entered into an oral agreement

with GAM by which Heartland delegated to GAM some

of its duties under its contract with SFX Motor Sports.

Specifically, GAM agreed to open the gates of the

facility, prepare the bathrooms, ensure that the public

address system was operational and provide water

jugs during the motorcyc'e races. Without complete

assignment of operation responsibilities, Heartland’s

delegation of duties to GAM through oral agreement

does not insulate Heartland from an otherwise

72a

applicable duty of care. See § Benefit Life Ins. v. Fed.

Deposit Ins. Corp., 804 F. Supp. 217, 225 (D.Kan.

1992) (delegation of contractual duties to another does

not discharge duty or hability of original obligor

without agreement to that effect). Heartland is not

entitled to summary judgment on the ground that its

oral agreement with GAM relieved it of its duty.

C. Duty Owed By SFX Entertainment And

Clear Channel

Although SFX Entertainment and Clear

Channel were not involved in the races, plaintiff

argues that they assumed a duty because they were

named in the waiver which he signed. Plaintiff cites

no authority for the counter-intuitive proposition that,

for purposes of tort law, plaintiff creates a duty by

exercising a waiver which relieves a party of liability

for ordinary negligence. The record contains no

evidence from which a jury might find that SFX

Entertainment and Clear Channel owed any duty to

plaintiff. SFX Entertainment and Clear Channel are

therefore entitled to summary judgment on plaintiffs

claims.

If. Negligence

Heartland and SFX Motor Sports argue that

they are immune from liability for ordinary negligence

73a

because of plaintiffs waiver.® Plaintiff does not

respond to this argument.

Under Kansas law, the intention to waive

liability for negligence must be expressed in clear and

unequivocal language. Belger Cartage Serv., Inc. v.

Holland Constr. Co., 224 Kan. 320, 329, 582 P.2d 1111,

1119 (1978). Here, the exculpatory language is

capitalized so as to stand out from the rest of the text;

the waiver is clear and unequivocal in hmiting

defendants’ liability for ordinary negligence. Indeed,

substantially similar language has been upheld

against claims of ordinary negligence in the context of

automobile racing. See Wolfgang v. Mid-Am.

Motorsports, Inc., 898 F. Supp. 783, 788-90 (D. Kan.

1995), affd, 111 F.3d 1515 (10 Cir. 1997). Because

the waiver clearly and unequivocally bars plaintiffs

claims from ordinary negligence, Heartland and SFX

Motor Sports are entitled to summary judgment on

those claims.

Ill. Wanton Conduct

Plaintiff argues that Heartland and SFX Motor

Sports acted with wanton disregard of the known and

obvious risk harm at corner 10.’ Wanton conduct

® Because the Court has determined that Jayhawk, SFX

Entertainment and Clear Channel owed no duty to plaintiff, it

only considers plaintiffs negligence claims against Heartland and

SFX Motor Sports.

” Because the Court has determined that Jayhawk, SFX

Entertainment and Clear Channel owed no duty to plaintiff, the

(continued. .)

74a

would be actionable because it falls outside the scope

of plaintiffs waiver. See Wolfgang 898 F. Supp. at 788

(under Kansas common law, attempt to waive liability

for wanton conduct unenforceable). Heartland and

SFX Motor Sports argue that their conduct was not

wanton because (1) they did not consider corner 10 to

be dangerous, (2) they took sufficient measures to

prevent injury and render aid to plaintiff, (3) they

experienced no communication difficulties on the day

of plaintiffs accident, and (4) the corner workers were

adequately trained and equipped.

Kansas does not recognize degrees of negligence,

but draws a distinction between ordinary negligence

and wanton conduct. Danisco Ingredients USA, Inc. v.

Kansas City Power &Light Co., 267 Kan. 760, 772, 986

P.2d 377, 385 (1999). Wanton conduct is a product of

defendants’ mental attitude, not of particular negligent

acts. Robison v. Kansas, 30 Kan. App.2d 476, 479, 43

P.3d 821, 824 (2002). To establish wanton conduct

under Kansas law, plaintiff must show defendants’

realization of the imminence of danger and reckless

disregard, complete indifference or lack of concern for

the probably consequences of the wrongful act. Id.

(citing Boaldin v. Univ. of Kan., 242 Kan. 288, 293, 747

P.2d 811, 814 (1987)).

Plaintiff may establish defendants’ realization

of an imminent danger with circumstantial evidence

that (1) defendants had reason to believe that such a

danger existed or (2) defendants disregarded a known

‘( .continued)

Court only considers plaintiffs wanton conduct claims against

Heartland and SFX Motor Sports

ida

or obvious risk from which harm was highly likely to

occur. Lanning v. Anderson, 22 Kan. App.2d 474, 482,

921 P.2d 813, 819-20 (1996). Such evidence may be

used to form a legitimate inference to the requisite

knowledge of defendants. Id.

Defendants’ reckless disregard or complete

indifference need not include an intent to injure.

Reeves v. Carlson, 266 Kan. 310, 314, 969 P.2d 252,

256 (1998). Since reckless disregard and indifference

are characterized by failure to act when action is called

for to prevent injury, acts of omission as well as acts of

commission can be wanton. Gould v. Taco Bell, 239

Kan. 564, 572, 722 P.2d 511, 518 (1986). Preventative

measures will preclude a finding of wantonness only

where those measures “materially lessen the chances

of the injury suffered by the plaintiff.” Wolfgang, 111

F.3d at 1523.

The determination that conduct 1s wanton is

normally a question of fact for the jury. Gruhin v. City

of Overland Park, 17 Kan. App.2d 388, 392, 836 P.2d

1222, 1225 (1992). “Only when reasonable persons

could not reach differing conclusions from the same

evidence may the issue lof wantonness] be decided as

a question of law.” Id. Here, the parties do not

attribute specific knowledge or action to particular

defendants. Because they refer only to defendants

collectively, and much of the conduct of Heartland and

SFX Motor Sports is intertwined, the Court cannot

separately evaluate their conduct and intent. The

Court therefore evaluates as a whole the conduct of

Heartland and SFX Motor Sports.

76a

While defendants admit that crashes are an

inherent danger in motorcycle racing and that such

crashes involve the risk of serious injury or death, they

argue that they did not know of the imminence of

danger in this case. The track rental agreement, the

waiver and the placement of ambulances, a fire truck,

fire extinguishers, radios and emergency personnel

suggest that the defendants knew of these risks before

plaintiffs accident. Indeed, the track rental

agreement stated “motor sports activities are

hazardous and participation can lead to serious or

fatalinjury.” Exhibit N to Defendants’ Memorandum

at 8. This general knowledge is sufficient to support a

finding that defendants had reason to know about the

existence of imminent danger. See Wolfgang, 898 F.

Supp. at 791. Further, at least three motorcycles ran

off the racetrack at corner 10 the day before plaintiffs

accident while running much slower than competition

speed. The record also contains evidence that on the

day of the accident while running much slower than

competition speed. The record also contains evidence

that on the day of the accident, during pre-race

practice, at least one or more motorcycle ran off the

racetrack at corner 10 while traveling slower than

competition speed. Because such incidents would

involve a much greater risk of harm when occurring at

the higher speeds of competition, a reasonable jury

could infer that the danger of corner 10 was obvious to

defendants.* See Lanning, 22 Kan. App.2d at 482, 921,

* Because the track rental agreement was operative only from

August 8 through 10, 2003, the record is not clear whether SFX

Motor Sports had knowledge of the three run-offs which occurred

on August 7, 2003. Viewing the evidence in the lhght most

favorable to plaintiff, however, a reasonable jury could find that

(continued )

V7a

P.2d at 820 (knowledge may legitimately inferred from

circumstantial evidence). This evidence creates a

genuine issue of material fact whether defendants had

a realization of imminent danger sufficient to find

wanton conduct. Id.

Defendants also argue that as a matter of law

they did not act wantonly because they materially

lessened plaintiffs risk of harm by (1) stationing two

corner workers at corner 10, (2) holding training

meetings with corner workers the morning and

afternoon of each race day, (3) equipping corner 10

with two fire extinguishers and a radio, (4) providing

two staffed ambulances and a fire truck, (5) calling a

helicopter and (6) protecting the “impact zone” of the

concrete barrier around corner 10 with additional

safety measures. In evaluating defendants’

preventative measures, the question is whether a

reasonable jury could come to only one conclusion

based on the facts and circumstances of the case: that

defendants’ actions materially lessened the risk of

plaintiff being injured in his accident and the rescue

operation that followed. See Wolfgang, 111 F.3d at

1523. A “token effort” at preventing injury will not

overcome a mental attitude of reckless disregard.

Friesen v. Chicago, Rock Island & Pac. R.R., 215 Kan.

316, 323, 524 P.2d 1141, 1148 (1974).

*( continued)

Heartland, as operator and lessor of the racetrack on all pertinent

days, knew of the run-offs on both August 7 and 8, 2003. A

reasonable jury could also find that SFX Motor Sports knew of the

run-off on August 8, 2003.

78a

Of the two corner workers stationed at corner

10, one had no prior experience and the other was

disabled and had only worked as a corner worker on a

circular track (not a road course) some 20 years

earlier. Heartland hired both corner workers through

a temporary employment service, and did not question

either corner worker about prior experience. Ritger

positioned both corner workers by themselves on the

inside of corner 10, which prevented them from timely

reaching plaintiff, who had crashed on the outside of

the track. Also, the track operators’ delay in giving

Linda Bodtke authorization to waive her red flag and

stop the other racers prevented Randy Bodtke from

quickly making his way across the track to help

plaintiff. Viewing the evidence in a light most

favorable to plaintiff, the corner workers were ill-

prepared to help plaintiff once they arrived at the

crash site; they had not received training on use of a

fire extinguisher and no one tried to extinguish the

flames which engulfed plaintiff.

The first ambulance arrived approximately five

minutes after the accident, but the emergency

personnel did not attempt to help plaintiff. It was not

until th second ambulance arrived, approximately 12

minutes after the accident, that any emergency

personne! began to render aid. The record contains no

evidence that the fire truck ever responded to the

crash site. Viewing the evidence in a light most

favorable to plaintiff, a reasonable jury could find that

in a situation involving obvious danger, defendants

hired and relied upon unskilled, temporary workers.

This evidence of reckless disregard makes summary

judgment on aclaim on wanton conduct improper. See

79a

Louderback v. Orkin Exterminating Co., 26 F. Supp.

2d 1298, 1310 (D. Kan. 1998).

The Court cannot conclude as a matter of law

that calling a helicopter or trying to protect the

“impact zone” of corner 10 absolves defendants of

hability for wanton conduct. Viewing the evidence in

a light most favorable to plaintiff, defendants’ overall

actions exacerbated plaintiffs injuries, and a

reasonable jury could find that defendants recklessly

disregarded an obvious risk of imminent harm by

completely failing to provide additional safety

measures in a lesser impact zone of corner 10 and by

failing to hire or train competent corner workers and

emergency personnel.

A reasonable jury could conclude _ that

defendants’ conduct was wanton, and defendants’

motion for summary judgment on this issue must

therefore be overruled.

IV. Loss of Consortium

Defendants argue that they are entitled to

summary judgment on plaintiffs loss of consortium

claim because such claim is derivative of plaintiffs

underlying claims of negligence and wantonness. See

McGuire v. Sifers, 235 Kan. 368, 385, 681 P.2d 1025,

1038 (1984) (loss of consortium claim vests in spouse

who suffers personal injuries); see also Wood v. City of

Topeka, 90 F. Supp.2d 1173, 1196 (D.Kan. 2000)

(damages for loss ofconsortium recoverable only where

plaintiff proves underlying cause of action). To the

extent that the Court has sustained defendants’

80a

motion for summary judgment, plaintiff may not

recover for loss of consortium damages. At this point,

however, plaintiffs remaining claims of wanton

conduct provide a basis for the loss of consortium

claim. Defendants’ motion for summary judgment as

to plaintiffs claims for loss of consortium against

Heartland Park and SFX Motor Sports is therefore

overruled.

IT IS THEREFORE ORDERED J that

Defendants’ Motion for Summary Judgment (Doc. #54)

filed July 17, 2006 be and hereby is SUSTAINED in

part. The Court SUSTAINS defendants’ motion for

summary judgment as to (1) Jayhawk Racing

Properties, L.L.C., SFX Entertainment, Inc., d/b/a

Clear Channel Entertainment, and Clear Channel

Communications, Inc. on all plaintiffs claims, and (2)

Heartland Park Raceway, L.L.C. and SFX Motor

Sports, Inc, d/b/a Clear Channel Entertainment-Motor

Sports on plaintiffs claims of ordinary negligence.

Defendants’ motion is otherwise OVERRULED.

Dated this 27" day of October, 2006 at Kansas

City, Kansas.

s/Kathryn H. Vratil _

Kathryn H. Vratil

United States District Judge

APPENDIX D

FILED

United States Court

of Appeals Tenth Circuit

December 7, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ARTHUR GC. WAGNER JR...

individually and for the

benefit of Jean Marie Wagner,

PD

Plaintiff-Appellee/

Cross Appellant,

V No. 07-3365

& 07-3366

LIVE NATION MOTOR

SPORTS, INC., f/k/a SFX MOTOR

SPORTS, INC., doing

business as Clear Channel

entertainment Motor Sports,

Defendant-Appellant/

Cross Appellee,

and

HEARTLAND PARK RACEWAY

LLC

Defendant

ORDER

Before KELLY, EBEL, and MURPHY,

Circuit Judges

Appellant's petition for rehearing is dene

The petition for rehearing en ban

no judge in regular active service on the

requested that the court be polled, that petition 1

denied

Entered for the Court

s/Elisabeth A. Shumaker

ELISABETH A. SHUMAKER

\

Clerk

a

Ww

a

transmitted to all of the judges of the court who are in

regular active service. As no member of the panel o1

court

al