Advisen FPN

Advisen Front Page News - Wednesday, January 16, 2019

Wrongful death suit shows motocross facilities unregulated in South Carolina
Wrongful death suit shows motocross facilities unregulated in South Carolina
Publication Date 01/13/2019
Source: Post & Courier (Charleston, SC)

The motocross rider never saw him, the boy at the bottom of the jump.

Patrick Terry, 13, had finally gotten his dad to take him to a real motocross track, where roaring dirt bikes send orange-tinted soil flying and riders barrel toward ramps at speeds that shoot them into the sky.

For months, Patrick had begged his dad to take him to a place like this, but his father, Ed Terry, had refused.

The motocross track in their hometown of Lilesville, N.C., was too dangerous for Patrick, a beginner who had only gone out for rides along the mostly flat acres of trail in his backyard.

But seeing that Club MX, in nearby Chesterfield, S.C., offered on-site training and tracks for all levels, Terry gave in and agreed to take Patrick there to ride a motocross track for the first time.

It was December 2014, four days before Christmas, when they unloaded the Yamaha YZ 85 bike and paid $25 to use the practice track. Terry said an employee pointed them toward it after he explained his son was 13 and a first-time rider at the track.

Wearing a helmet, riding gloves, boots, neck brace and chest protector, Patrick entered the track. He struggled to make it around on his first attempt. So he tried again.

As he approached a jump called the catapult, Patrick did not launch into the air but instead slowly rolled over it.

Moments later, a larger, more experienced, older biker accelerated toward the same catapult jump.

According to a 2016 lawsuit filed by Patrick’s father, the rider soared into the air with Patrick directly below.

And there was nothing — no caution flagger on the track, no warning system, no clear line of sight for the airborne rider, and no sudden change in physics — that could stop him from landing directly onto Patrick’s back.

“He died right before he got to the hospital,” said Terry. “Even now, I blame myself a lot.”

But Terry also blames Club MX and is suing the motocross facility. His attorneys are pushing for a jury trial this year. Due to pending litigation, Club MX owners declined to comment.

However, the legal fight exposes a larger issue.

Tracks unregulated

There are no laws or regulations regarding motocross tracks and facilities in South Carolina.

In a state that oversees and inspects nail salons, barber shops, elevators and amusement park rides, there are no laws or regulations regarding off-road motorcycle tracks.

The S.C. Department of Labor, Licensing and Regulation does not have any oversight on these facilities, either.

This lack of regulation means motocross tracks face no legal requirements regarding how they operate, what safety standards they must have on their tracks for recreational use or how much insurance they should carry.

The wrongful death lawsuit against Club MX alleges the facility did not have liability insurance at the time of Patrick’s death.

“I don’t think that gives you a license to not care, or not provide every bit of safety equipment and follow every safety standard that’s out there, said Carl Hiller, a Columbia-based attorney representing the Estate of Patrick Terry in the case against Club MX. 

The Palmetto State is not alone in its regulation gap of motocross. North Carolina and Georgia also lack safety regulations.

According to the American Motorcyclist Association, few states have any laws on the books when it comes to regulating motocross tracks.

James Holter, a spokesman for the nonprofit motorcycle group, said motocross facilities are more likely to encounter regulations related to local zoning and sound ordinances than they are to confront any sort of statewide safety law.

AMA-sanctioned race events, however, do have standards. The 2018 AMA Racing Rulebook notes riders are separated based on their experience and flaggers must be on the track to warn riders of conditions should they need to proceed cautiously.

But when it comes to recreational use of dirt bikes on these tracks, Holter said it’s often up to the business operator whether they have warning systems or medical personnel on site.

Terry, who sent his son off to find an employee when they arrived at the track, said Patrick signed a waiver but that he, the adult and guardian, did not sign a document.

Terry said having safety standards required only for sanctioned racing events is not enough.

“The AMA can come up with all these rules, but if there’s no legislative teeth involved there’s no forcing anybody to comply with anything,” Terry said.

Cautious concern

Sen. Thomas Alexander is an Oconee Republican who heads the Senate Labor, Commerce and Industry Committee.

Terry reached out to his office for help but was unsuccessful in getting a straight answer about whether or not Alexander would push for regulation or file a bill to address the issue.

Alexander called Patrick’s death a tragedy and said he plans to talk to the Department of Labor, Licensing and Regulation to find out if further action is needed.

But when asked directly what should be done, Alexander drew a blank.

“I don’t know. We need to evaluate the role of government in the regulation of these things, but it certainly will warrant a conversation with LLR about tracks such as this, and not just this particular one,” he said.

State Sen. Sandy Senn, R-Charleston, a member of the LCI committee, said she often favors deregulation, along with many of her colleagues.

“I feel so much for the family in this case, but when you decided to undergo a dangerous sport, you do so undertaking it under your own risk,” Senn said.

In South Carolina, many outdoor recreational activities, such as parasailing, tend to be largely unregulated.

Last year, a man vacationing with his wife and two children in Myrtle Beach lost both of his legs in an incident involving a boat while returning to shore after he went parasailing. Like motocross, parasailing is not overseen by the department of Labor, Licensing and Regulation. Additionally, the Department of Natural Resources, which registers and titles watercraft, does not regulate parasailing.

Why he keeps fighting

Terry said multiple state lawmakers he’s contacted have told him that a person partakes in a dangerous sport at their own risk. He says there is a middle ground to be found.

“I’m not a state citizen. I know I’m an outsider trying to tell them what they need to do. I also understand that nobody likes to be governed. But at the same time, there’s a speed limit on the highways that I have to comply with, so why can’t there be something for these places?” Terry said.

He cites the Brett Downey Safety Foundation, a nonprofit organization dedicated to improving motocross track conditions and heightening safety awareness. The group has been pushing to standardize motocross track guidelines nationwide.

Terry said he will take his fight national if that’s what it takes to bring about change. Already, his life has changed so much because of this.

Patrick would have been a senior in high school this year. He imagines Patrick would be dating girls, still playing sports and preparing to go on that elk hunting trip Terry had promised him they would take together when he was old enough.

“But we never got the chance,” Terry said as he stood in his son’s untouched room, where nine posters of motocross racing stars still hang on the walls and where Patrick’s unopened Christmas presents from 2014 still sit on the bed.

Reach Caitlin Byrd at 843-937-5590 and follow her on Twitter @MaryCaitlinByrd.

Copyright, 2019, The Post and Courier. All Rights Reserved.
Berkshire Hathaway
Safety National