# Appendix — Wagner v. Live Nation Motor Sports, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1666%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2010 - **Citation:** 559 U.S. 1107 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1666%3A2. Public record. Not legal advice.