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.

13 Responses

  1. Briab

    Based on this article I’ll $upport Keigwin’s position. Never done a track day but you leave the asphalt under your own error on the road or track and what lies beyond that edge is your singular issue to deal with. I ride off road and that guy had poor bike skills. He had center weight looking an obstacle straight on at modest speed. He should have ridden out the curve on the bumper or after leaving the asphalt weighted back and let the bike absorb that modest obstacle. He did neither. This is on him. Did the rider go round cold once before trying to pass? Up to the rider to inspect the lines and course and absolutely the contingencies. This is an exercise in blaming others.

    Reply
    • Gerryp

      The facility has to take responsibilities for negligence, which in this case is leaving the sand bags out.

      Reply
      • Surj Gish

        Keigwins assumed responsibility for the condition of the track for their event. The contract Keigwins signed states:

        “The Permittee acknowledges that he/ she has been advised by S.C.R.A.M.P. and Monterey County, through S.C.R.A.M.P., that the facilities in the Laguna Seca Recreational Area which the Permittee is authorized to use in accordance with this permit have not been represented as being fit for the Permittee’s intended use or for any particular use. The Permittee acknowledges that he or she has been advise to inspect the condition of the facilities prior to the issuance of this permit, and/ or prior to the Permittee’s actual use; and based upon the Permittee’s personal inspection or upon the Permittee’s right to inspect, the Permittee acknowledges and accepts the facilities as safe and adequate for the Permittee’s intended use. The Permittee shall be responsible for all equipment and for adequate safeguards for the protection of himself/herself and other [sic] during the use of the facilities.”

        Emphasis mine. In other words, it was up to Keigwins to check out the track, and if something wasn’t safe, act accordingly: fix it, ask for it to be fixed, or cancel the trackday.

  2. Robert

    I can’t say I agree. I really hope he fights this to the end and wins. When you ride or race on a track you do so at your own risk and when you sign that waiver you give up all rights to sue. The organizer, other participants, the track owners, and sponsors are all supposed to be protected by these waivers. Even in the case of extreme negligence. What is really at stake here is racing and trackdays as we know it. This society has become so litigious that anything remotely dangerous is being shut down. If insurance companies have to pay out to every pathetic claim brought against them from every individual that crashes at a track day or race they will stop insuring these events. This guy rode off the track. There is no guarantee of safety period, especially when you leave the track. How many laps had Kim done before he hit the sand bags? If it was that obvious of a problem he knew they were there. This accident is solely on Kim. He’s filed a frivolous lawsuit to recoup costs of building some hideous bikes he will never sell. Drop the suit Kim and do not settle out of court Keweits.

    Reply
  3. Robert

    I can’t say I agree. I really hope he fights this to the end and wins. When you ride or race on a track you do so at your own risk and when you sign that waiver you give up all rights to sue. The organizer, other participants, the track owners, and sponsors are all supposed to be protected by these waivers. Even in the case of extreme negligence. What is really at stake here is racing and trackdays as we know it. This society has become so litigious that anything remotely dangerous is being shut down. If insurance companies have to pay out to every pathetic claim brought against them from every individual that crashes at a track day or race they will stop insuring these events. This guy rode off the track. There is no guarantee of safety period, especially when you leave the track. How many laps had Kim done before he hit the sand bags? If it was that obvious of a problem he knew they were there. This accident is solely on Kim. He’s filed a frivolous lawsuit to recoup costs of building some hideous bikes he will never sell. Drop the suit Kim and do not settle out of court Keweits.

    Reply
  4. Briab

    Based on this article I’ll $upport Keigwin’s position. Never done a track day but you leave the asphalt under your own error on the road or track and what lies beyond that edge is your singular issue to deal with. I ride off road and that guy had poor bike skills. He had center weight looking an obstacle straight on at modest speed. He should have ridden out the curve on the bumper or after leaving the asphalt weighted back and let the bike absorb that modest obstacle. He did neither. This is on him. Did the rider go round cold once before trying to pass? Up to the rider to inspect the lines and course and absolutely the contingencies. This is an exercise in blaming others.

    Reply
    • Gerryp

      The facility has to take responsibilities for negligence, which in this case is leaving the sand bags out.

      Reply
      • Surj Gish

        Keigwins assumed responsibility for the condition of the track for their event. The contract Keigwins signed states:

        “The Permittee acknowledges that he/ she has been advised by S.C.R.A.M.P. and Monterey County, through S.C.R.A.M.P., that the facilities in the Laguna Seca Recreational Area which the Permittee is authorized to use in accordance with this permit have not been represented as being fit for the Permittee’s intended use or for any particular use. The Permittee acknowledges that he or she has been advise to inspect the condition of the facilities prior to the issuance of this permit, and/ or prior to the Permittee’s actual use; and based upon the Permittee’s personal inspection or upon the Permittee’s right to inspect, the Permittee acknowledges and accepts the facilities as safe and adequate for the Permittee’s intended use. The Permittee shall be responsible for all equipment and for adequate safeguards for the protection of himself/herself and other [sic] during the use of the facilities.”

        Emphasis mine. In other words, it was up to Keigwins to check out the track, and if something wasn’t safe, act accordingly: fix it, ask for it to be fixed, or cancel the trackday.

      • Sandy Jenkins

        Sorry but once your off track it’s no longer Keigwins responsibility. I agree with pretty much every other track rider out there. Had the track had a sandbag on it then it would be a different story. This was a sandbag off track, you know where they probably have holes, walls all sorts of other obstacles. The other irony is that this track usually has sandbags to take care of drainage issues. The guy had rode on this track several times before, and missed the morning riders meeting. He also was on track several laps as others stated. He should have been stuck with a lawyers fee and that’s it. When you ride off track your almost guaranteed to go down.

  5. JeremyW

    1.) Kim did not attend the morning’s Rider’s Meeting.
    2.) Kim did not take the opportunity before the track day started to walk the track as any serious rider would of done and I still do to this day.
    3.) The sandbags were NOT camouflaged nor were they placed there midday. He never argues that he didn’t see them, he makes ZERO attempt to avoid them, he CHOOSES to drive right into them.
    3.) This was a trackday and not a timed event, there was no incentive for Kim to ride above his head and beyond his capabilities. It was completely his choice to continue.
    4.) The rider in front made the same turn at the same speed which proves Kim was more than capable of doing the same.
    5.) Kim is not even close to turning/traction limits of his bike. He is not touching knee, no bike parts are dragging, he clearly chooses to stand up his bike mid turn for no other reason except he is a noob. Even if he was at the bike’s limits he would have still had the option to lay on the gas, backed the bike in, and squared off the turn. Instead he gives up without even trying to save himself from danger.
    6.) Kim’s accident occurred 9 laps into an afternoon session. He had ample time to observe the sandbags. He doesn’t hit them on his first lap and no one else hits them either the entire day.
    7.) The former layout Thunder Hill track had turn 13 run you right into a wall without zero run off. Leguna Seca has turn 7 with a wall only about 50 feet off track to absorb the fastest straight away on the track. Point is that no track is without obstacles if you go off the track.
    8.) If this was gross negligence, the why didn’t anyone else crash. Hell, why didn’t anyone INCLUDING and ESPECIALLY Kim have filed a formal complaint with Keigwins prior to the accident. Double Hell, Kim was particularly concerned… why did he place his life in jeopardy and choose to go back on the track. I can tell you why, because he didn’t think it was a danger so why hold Keigwins responsible? Regardless if it is for points or not, I will not race on a wet track. I am not a professional racer and I could care less about my club points in comparison to my own safety… I just sit back and watch the shit show. If Kim had any concern he should have complained prior, he should have asked for his money back prior, he should have placed a higher value on his own life over a lousy $250.

    In short… tell me the track placed the sandbags down between his previous lap and the one he crashed on, tell me they put it on the track, tell me that riders were filing complaints about the sandbags prior to the accident, tell me Kim filed a complaint of the sandbags before his accident. tell me the disguised it as a flat surface somehow and I might understand the reason why the track is responsible. I don’t care if Keigwins had the opportunity to walk the track or not; if you don’t care about your own life no one else should either. There is a reason why no one else works on my bike but me, I don’t trust anyone more than myself. [edited to remove over-the-line assholishnesss per our terms.]

    If you feel that Kim is owed money, then maybe you should start a GoFundMe page for him. Suggesting that Keigwins just let their insurance pay Kim is not only ignorant of you in the name of decency but ignorant of you in the context of the real world. If you had done any research as a journalist, you would have noted that Keigwins only carries $5M of insurance… TRIPLE the $15M Kim originally asked for and DOUBLE the $10M he is currently demanding. Not to mention that Kim is paying zero for his attorneys as with most injury lawyers, they don’t get paid until you get paid… however Keigwins has to front their leagal costs until a final court decision is made and then it is UP TO THE JUDGE to decide what PORTION of your legal expenses is recoverable (and most judges are dicks and don’t award 100%). So please, come back to reality and the human race, the water is great, you will be just fine, but don’t write articles when you have no idea what you talking about.

    Reply
    • Surj Gish

      @disqus_aZOQGZP2rD:disqus I’ve edited your comment to remove blatant assholishness, per our terms. I didn’t bother fixing your grammar or spelling, of course, but you should know that it’s couldn’t care less. Tone it down, please.

      As for the substance of your comment, most of it has already been discussed at length, here and elsewhere. But I will point out that I and other members of the crew here did substantial research to inform our perspective, which you seem to have missed in your furor, along with other points counter to your perspective. The crux of the matter here isn’t whether I believe Kim is “owed money,” but that fighting in court carries a greater risk of setting a precedent that will actually affect trackday companies and riders.

      Reply
  6. Nick

    I can identify with the contrarian doucheness of the writer but not even I could sink that low for smug satisfaction.

    Reply
  7. DannoXYZ

    I’ve raced AFM and done trackdays at following tracks:

    – Sonoma/Sears Point Raceway
    – Thunderhill
    – Buttonwillow
    – Willow Springs
    – Streets of Willow Springs
    – Fontana
    – Bragg Smith
    – Las Vegas Motor Speedway
    – The Ridge
    – Wild Horse Pass
    – Arizona Motorsports Park
    – Phoenix International Raceway
    – Laguna Seca

    At every single one of those tracks, there’s at least one if not multiple areas where if you go off-track, you can get seriously injured or killed. Heck, turn-10 at Sears has ZERO run-off into a wall and you approach it at 120-130mph! It also has a low-spot that becomes a puddle in the rain! As a participant, racer or track-day enthusiast, you must take responsibility for riding with safety cushion in mind.

    Daniel Kim is an entitled spoiled-brat with more money than skill or brains and he needs to grow up.

    BTW – there’s A LOT of unwritten “rules” when you get on track. Gentlemen’s agreement on damages in crashes, 13-13 rule, etc. Just because you’re not aware of them, does not mean they do not exist.

    Reply

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