Menacing the Highways

Before you read any further, let me make one point crystal clear — this column has absolutely nothing to do with the SCM 1000 Tour. Feel free to participate. I’m going.

At the other end of the spectrum, participants in the Eurorally 2019 were met with a huge surprise as they traveled the A20 east of Wismar, Germany — they all got busted!

German police were not pleased by reports from other drivers that the Eurorally participants were driving dangerously and scaring the bejeezus out of everyone else on the road at speeds reported as high as 155 mph.

So they pulled them all over and seized 120 Ferraris, Porsches, Lamborghinis, Audis, Corvettes and other sports cars.

Eurorally 2019 started in Oslo, Norway, taking participants to Gothenburg, Sweden, on the first day. From there, the cars are taken on an overnight cruise to Kiel, Germany. The second day would have taken participants from Kiel to Szczecin, Poland, the third day to Legnica, Poland, and the fourth day to Prague in the Czech Republic.

But they never made it out of Germany. More than 50 police officers had set up stationary and mobile checkpoints along the route watching for street-racing incidents, and were assisted by two helicopters. The participants were busted between Wismar and Rostock, Germany, leaving us to wonder how they finished off the rest of the tour.

A rose is a rose…

The Eurorally website attempted to set the appropriate tone for the event:

  • “Eurorally is not a competition!”
  • “Eurorally as an organization is simply a holiday planner for car enthusiasts.”
  • “Eurorally is an event for car enthusiasts who like to travel by car to experience new destinations alongside other petrolheads.”
  • “We aim to give you a once-in-a-lifetime experience holiday consisting of great events taking place in multiple countries along the route!”

That all sounds like sane, clean fun, but then the disclaimers come in:

  • “The Eurorally organization is only responsible for planning and organizing hotels and events.”
  • “Everything you do during this holiday will be your own responsibility.”
  • “Eurorally cannot be held responsible for any violations in any country on the route.”

And hindsight tells us that the organizers were running more risk that participants would break the rules with their selection policy:

“Eurorally’s aim is to have participating cars that are able to stand out in a crowd, meaning that ordinary cars that are not in any way modified, styled or tuned will not be allowed to participate.”

The German police are investigating whether this “holiday excursion” might more properly be categorized as an illegal race.

Bringing it all back home

Things can get wilder in Europe, but things are more staid here in the good old U.S. of A., aren’t they? (Okay, let’s just ignore the Cannonball Run as an outlier.) Should we worry about U.S. car rallies?

Car rallies are becoming increasingly popular, and an increasing number of car clubs and organizations are heading out onto the road.

We’ve all been on them, we’ve all had great fun, and we’ve all witnessed examples of ill-advised driving. There haven’t been many stories of really bad incidents, but is it just a matter of time before something horrible happens?

McKeel Hagerty, CEO of Hagerty Classic Car Insurance, is concerned. “I’ve participated in them. They’re fun. But … they’re risky.” He’s seen “some stupid stuff” and “people acting like fools.”

Although he is an insurance guy, Hagerty’s main concern is about the future of these events. “If something really bad happens, it might kill off all these events. That would be a very bad thing for the hobby.”

Are you covered?

Let’s say you are driving your collector car on a car rally and you have an incident. Are you covered?

Hagerty sees it as difficult for an insurance company to deny coverage, since you’re driving on public roads and not a racetrack.

There are a lot of court cases all around the country that have upheld denials of coverage for incidents that occurred during street drag races, but that isn’t what you see with sports-car drivers.

“It’s too easy to debate whether something is racing or not,” Hagerty says.

Are you liable for the other guy?

Now, let’s say you and another driver are on the same rally, driving together, very fast, passing other cars, and the other driver gets into a crash that injures another party. Are you liable for the harm caused by the other driver because you were “racing?” There was no racetrack, no timing facilities and no finish line that would make it a race. This was nothing more than “spirited driving.”

Or was it?

In a 2000 Oregon Court of Appeals case, two guys were driving their pickups at “excessive speeds” (75–80 mph), repeatedly passing cars in tandem, when they came upon a gasoline tanker.

The lead truck passed and the second truck followed in his draft. The second truck didn’t make it, and caused a head-on collision that killed two of the occupants of the oncoming vehicle.

The Court of Appeals ruled that this conduct constituted “racing,” which the two drivers were doing “in concert.” That made the driver of the lead truck, which did not crash, legally responsible for the harm caused by the second driver.

Unclear about just what all this means, I turned to my law partner, Robert Perkins, for an explanation. Perkins is an accomplished civil litigator, who handles many personal-injury cases when he isn’t handling my friends’ and clients’ speeding tickets.

Perkins says, “It’s complicated, but here’s how it works:

“Generally, one person isn’t responsible for another person’s tortious [legally wrongful] behavior. One exception is when two people are acting in concert and engage in tortious behavior. But even if the two are acting in concert, there is no joint liability if what they are doing together is lawful.”

So far, clear as mud.

Here’s the example Perkins gives: Say Bonnie and Clyde want to burglarize Keith’s house. Only problem is, they don’t have a car. So they approach their friend, Chump, and ask, “Hey, Chump, would you do us a favor and give us a ride to Keith’s house?” Chump agrees, drops them off, and they break into and burglarize Keith’s house. Although Chump acted “in concert” with them, he isn’t liable for the theft because his conduct — giving them a ride — was lawful.

Perkins relates this to our experience: “So say you’re on this rally and the car next to you crashes. Your conduct (driving on the street) was entirely lawful, so you’re off the hook. Basically, your actions did not drive his actions.

“Now, let’s say Chump later sees Bonnie and Clyde at a bar and learns that they burglarized Keith’s house after he dropped them off. They even give him $500 as a share for his ‘assistance.’ A couple days later, Chump sees them again and they ask, ‘Hey, Chump, would you do us a favor and give us a ride to John’s house?’ Now that he knows what they are up to, Chump is acting ‘in concert’ with them on the burglary, not just the ride.”

In our rally example, once you and the other driver start driving crazy together, it becomes joint participation in an unlawful activity. When the other driver crashes and injures a third party, you might be held liable.

Organizer liability

Rally organizers are usually protected from liability because they are engaging in lawful activity — organizing a group driving tour. They legitimately expect participants to obey the laws, and can’t know that some won’t.

But let’s say they’ve organized this event several times, and they know from past experience that people routinely do “stupid stuff” and “act like fools,” as Hagerty describes.

“Now they may have crossed the line,” Perkins says. “It starts to look like they are acting in concert with the known bad drivers by creating the environment for them to engage in their now-expected unlawful behavior. At some point, you start to look like the person who hires the known sex offender to manage their day-care center — you’ve given him everything he needs to molest innocent children.”

Hagerty says organizers can easily protect themselves with some common-sense event-management actions:

Pay attention to what is going on.

Be clear with participants that they are expected to obey the law.

Most important — enforce the rules. If people drive dangerously, boot them from the event.

How much should you worry?

Short answer — some.

There aren’t many cases where liability for another person’s bad driving has been established, but there is an increasing likelihood of that happening as car rallies proliferate and gain more visibility.

“This may not be the best image for our collector-car world,” Hagerty says. “We risk people seeing us as just a bunch of wealthy people acting badly and endangering others.”

There’s an old legal saying — “Hard cases make bad law.”

When an innocent person suffers great injury, but the law doesn’t really hold the person who caused the injury liable, the judge and jury can try very hard to tweak the law to create liability where it otherwise doesn’t exist. Then the rest of us have to live with the new rules. ♦

John Draneas is an attorney in Oregon. He can be reached through www.draneaslaw.com. His comments are general in nature and are not intended to substitute for consultation with an attorney.

John Draneas

John Draneas - SCM Columnist - %%page%%

John practices law in the Portland, OR, suburb of Lake Oswego, where he focuses on tax and estate planning, business organizations and transactions, and representation of collector-car owners. He is a past president of the Oregon region of the Porsche Club of America and served as the chairman of the PCA’s 2006 parade. His collection includes two Porsches, a Ferrari, an Alfa, a Lotus, a BMW daily driver, a John Deere tractor — and one increasingly famous Jaguar E-type. This month’s “You Write, We Read” on p. 20 is full of SCMer advice on whether Draneas should restore his Jag.

Posted in Legal Files