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Brotherton v. Victory Sports, Inc.

United States District Court, E.D. Kentucky, Southern Division

June 2, 2014


For Walter Richard Brotherton, Plaintiff: Tad Thomas, Louisville, KY USA.

For Victory Sports, Inc., Defendant: Palmer G. Vance, II, LEAD ATTORNEY, Matthew R. Parsons, Stoll Keenon Ogden, PLLC - Lexington, Lexington, KY USA.

For Corbin, KY City of, Defendant: Matthew R. Parsons, Palmer G. Vance, II, Stoll Keenon Ogden, PLLC - Lexington, Lexington, KY USA.

For Shea C. Corzatt, Defendant: J. Warren Keller, Taylor, Keller & Oswald, PLLC - LON, London, KY USA.



Gregory F. Van Tatenhove, United States District Judge.

By all accounts, motocross racing is a dangerous sport. Nevertheless, those organizing

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such events should still attempt to implement basic safety precautions. How many are necessary to protect even experienced participants is an underlying question in this case. The Plaintiff, who was injured during a motocross event in Corbin, Kentucky, argues that the safety precautions taken by the Defendants were not enough, and that the event promoter and the City acted with willful and wanton disregard for his safety. The Court, after reviewing the evidence in the record, disagrees. For the reasons that follow, summary judgment in favor of the Defendants is GRANTED.


In January 2011, Defendant Victory Sports, Inc. (" Victory" ) staged an indoor motocross race, specifically the " Kentucky Indoor Motocross Championship," at the Southeastern Kentucky Agricultural and Expo Complex (" Arena" ), owned by the City of Corbin (" Corbin" ). [R. 33-1 at 2.] Victory licensed the Arena from Corbin pursuant to a written agreement with numerous conditions. [R. 33-2.] Plaintiff Walter Richard Brotherton attended this event with professional motocross racer Robbie Horton, for whom Brotherton had worked as a volunteer mechanic for six years prior to the incident in question. [R. 56-1 at 2.]

During a practice heat at the Corbin Arena, connected to this particular event, Brotherton was injured while standing near the starting gate as the racers went around the track. [R. 56-1 at 1.] Brotherton claims that other people were also standing there with him, and that he, along with them, decided to move and watch the practice from another location because the area they were standing in was unsafe. [R. 57 at 3.] At that moment, Shea Corzatt rode his motocross bike over a hill on the racecourse and careened into the starting area where Brotherton was just leaving. [R. 1 at 4.] Corzatt collided with Brotherton, resulting in injuries to Brotherton's leg that required an air ambulance flight and extensive medical treatment. [ Id. ] Brotherton brought suit against Victory, the City of Corbin, and Shea Corzatt, alleging negligence. [R. 1.] Defendant Corzatt has since settled with Brotherton and has been dismissed from this action. [R. 54.]

Prior to the event where Brotherton was injured, Brotherton had attended numerous indoor motocross events with Horton, including three events at the Corbin arena. [R. 56-1 at 2-3.] Brotherton was well-known to several Victory employees and staff from his participation in previous events that Victory sponsored. [ Id. at 2-3.] In his deposition testimony, Brotherton admitted that when he was standing on the track near the riders, he knew he was supposed to pay attention to events on the track in addition to watching his rider. [R. 56-2 (Brotherton Depo.) at 30-31.] Victory states, and Brotherton has not disputed, that there were several warning signs posted around the Arena indicating that motocross racing was dangerous, that people entering the grounds assumed all risk of injury, and that certain areas were restricted. [R. 56-1 at 6.]

The parties appear to differ, however, in their accounts of the relevant facts concerning whether Brotherton was warned not to stand in the area near the gate where he was injured. Victory has submitted the deposition of the track designer, Larry Harrison, who testified that on the day of the accident he warned Brotherton and the other mechanics to stay in the designated mechanics area where they would be safer. [ Id. at 6-7 (citing R. 56-8 (Harrison Depo.) at 22-23).] Victory also submits depositions from several employees who testified that Brotherton was repeatedly

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warned not to stand in the area where he was injured, and that he ignored several warnings to move from that location. [ See R. 56-1 at 7-10; R. 56-3 at 14; R. 56-10 at 10-11; R. 56-5 at 17-18; R. 56-8 at 18.] Brotherton, however, claims that he was told by a race official to stand in the place where he was injured, and that he did not stand there long enough for Victory employees to have told him to move away as many times as they claim. [R. 57 at 2-3.]

Prior to Brotherton entering the Arena, he signed a release and waiver of liability. [R. 34-5.] This Court previously found that the release barred Brotherton's claims of simple negligence, but that Kentucky law does not permit one party to release another party from liability for willful or wanton negligence. [R. 38.] Accordingly, the Court granted summary judgment to the Defendants on Brotherton's negligence claim, but determined that material facts " remain[ed] unsettled" concerning Brotherton's allegations that the Defendants acted with willful and wanton negligence. [R. 38 at 8-9.] The parties have since conducted ...

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