Uneasy Rider: Of Personal Responsibility, Negligence, & The Kim vs. Keigwin’s Lawsuit

The trackday / racing community is all bent out of shape about recent developments in the lawsuit brought by Daniel Kim against Keigwins@theTrack, SCRAMP, Monterey County, and Mazda. Max has a comprehensive update on the suit on page 4 of our April 2018 issue in case you’re not aware of the details.

On March 12th, roughly three months after Monterey County Superior Court Judge Thomas Wills killed the suit against all defendants but Keigwin’s, Szymon Dziadzia (owner of Keigwin’s) set up a GoFundMe campaign to collect funds to fight the suit, claiming that settling would set a dangerous precedent that “…opens the door to the very real possibility that track day providers will have to double/triple their prices or risk going out of business.” He further characterized the suit as “…essentially an assault on all track day riders’ ability to get out on a track…”

Dire circumstances indeed, thus the holy-fucking-shit-the-sky-is-falling title of the campaign: “Save The Track Days!!!”

In case our stance on the matter has gotten lost in our simmering stew of F-words and dick jokes, CityBike’s official point of view on crowdfunding is, in short, “fuck that shit.” We will occasionally deviate from that position—your call on whether this is hypocrisy or mindful flexibility—and donate to truly worthy causes, but the reality is that an awful lot of moto-centric GFMs (not to be confused with GFY, which also applies) are shameful attempts at after-the-fact ass-covering.

The Keigwin’s GoFundMe campaign reignited the “conversation” about the Kim lawsuit, one of two brought against the same four defendants, predictably bringing out all the really smart people and their solid legal commentary, many of whom seem unable to wrap their heads around the substance of the lawsuit and instead believe that commenting on Kim’s riding abilities, his startup company, and whether he is or isn’t an asshole really gets to the meat of the matter.

While I could burn pages talking shit about how maddeningly short-sighted the motorcycling groupthink community can be, there are three components that warrant further examination:

1. Kim’s personal responsibility and the waivers.
2. The notion of negligence, and how it relates to the waivers.
3. The GoFundMe campaign.  

The rest of the world seems content to function in the bubble of “I can hear my voice, so I must be right,” but I sought out an expert: attorney, rider, racer, and President of Scranton Law Firm, Chris Scranton. I sent him everything we have, including court documents, media coverage, and the crash video.

First, Daniel Kim’s personal responsibility. A lot of riders seem comfortable with neatly boxing this whole situation up into some version of “His problem. He signed a waiver. Everyone knows track riding is dangerous. Always been that way. End of story.”

Yes, he signed a waiver, but that waiver isn’t without limits. It’s predicated on trust that the facility and provider have fulfilled their responsibilities to provide a reasonably safe track environment for their customers. That’s what riders pay for, after all: a place to ride fast and hone their skills, with less risk (and fewer limits) than the street.

By the way, what doesn’t matter is why Kim went off the track, no matter how self-satisfying it may be to smugly shit-talk how he blew the turn.

Chris and I talked extensively about trackday waivers, and he summed it up like this: “A waiver is not effective for everything that can possibly happen. There is a scope. If you go to the track and while you are eating lunch the ceiling falls on your head because of poor construction, the waiver is not going to cover that.”

He went on: “I’ve raced dirt bikes in Baja and everyone warns you there are booby traps out there that can kill you. So you keep your eyes open and ride accordingly. But if you’re on a motocross track or a road track you don’t expect things like that. At any riding facility you expect to crash and be crashed into by other idiots dumber than yourself. But does this situation fall within the scope of things you assume the risk of happening?”

Next, the notion of negligence. From the video of Kim’s crash, it’s easy to see that the sandbags he hit were placed where someone blowing turn five might end up. Chris characterized this as “making a bad situation worse.”

“Riders are going to make mistakes and go off-track. Trackday participants are not professionals. Anybody can go. Lots of riders go down in turn five and that is to be expected, so it would be reasonable for us riders to believe that if we go off-track it’s going to be ok.”

I’ve spent hours poring over the 90+ pages of court documents we have, and it’s not clear to me whether Keigwin’s staff actually inspected the track before the trackday—there are conflicting statements, and I don’t have access to the deposition with the discussion of this—only excerpts in other documents. But court documents make it clear that every defendant other than Mazda knew about the sandbags—in fact, Judge Wills even establishes in his December ruling that this general knowledge makes the alleged lack of inspection immaterial, since everyone knew about the sandbags.

To be clear: whether or not it meets the legal definition of gross negligence, if Keigwin’s truly did not inspect the track that morning, that’s a big fuckin’ failure, as is their seemingly undisputed lack of request for removal of the sandbags. That big fuckin’ failure is why Keigwin’s still gets to show up at a Monterey County courthouse this May.

Chris, using more eloquent terms—he’s a lawyer, after all, called the results of leaving sandbags there “totally foreseeable.”

“At a minimum they should have voiced the issue to all the riders at the riders meeting and marked it on the track with a cone or flag.”

Finally, the GoFundMe smells a little fishy to me. Never mind that the owner is asking for the community to fund his ill-conceived fight while flaunting his Ferrari on Facebook, it’s the unfounded fear-mongering that’s hard to stomach. I’d love to know why Keigwin’s thinks settling out of court is more likely to set a precedent and oh-my-god-end-trackdays-as-we-know-them than fighting, potentially losing and actually setting a legal precedent. But we reached out to Keigwin’s for comment, and they simply pointed us to publicly available information like the GoFundMe statement. Their lawyer didn’t respond at all.

Chris is dubious about Keigwin’s fears: “I don’t buy the argument about setting a precedent or insurance rates. It should make trackday operators safer by ensuring they inspect the track to make sure there aren’t any time bombs out there. We expect it to be safe to ride. We also expect it to be dangerous to a certain extent by its very nature. But this was like placing a land mine off the side of the track and not everybody that shows up is going to appreciate that danger.”

Further, the “leftover money will go to the Roadracing World Action Fund” statement is disingenuous at best. Lawyers are expensive, and it seems unlikely—even if the $50k fundraising goal is met—that there will be money left over, so this likely amounts to nothing more than a feel-good footnote that may drive a few more donations.

But what about personal responsibility? Kim crashed, and the consensus seems to be that it’s his problem. Shouldn’t the same apply to Keigwin’s? It’s their problem.

Look, multiple facts can coexist. This isn’t an either / or. It’s possible that on one hand, riding on the track is dangerous, and Kim signed a waiver and ought to be responsible for his own actions, while at the same time, Keigwin’s, a company that hosts trackdays, knows that riding on the track is dangerous (thus the waivers), whose goal “has always been to bring plenty safe, well-structured track time to customers,” just plain fucked up. Keigwin’s and Szymon Dziadzia should abandon the baseless fear-mongering and virtue signaling of the GoFundMe campaign, and let their insurance pay the claim.

This story originally appeared in our April 2018 issue, which you can read in all its original high-res glory here.