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Cruz v. ATCO Raceway, Inc.

United States District Court, D. New Jersey

July 1, 2015

EVELYN CRUZ, on her own behalf and as Administratix of the Estate of Jose Cruz, Plaintiff,
ATCO RACEWAY, INC., Defendant.

David T. Sirotkin, Esq., MORELLI RATNER PC, New York, New York, Counsel for Plaintiff.

Timothy J. Schipske, Esq., SALMON, RICCHEZZA, SINGER & TURCHI, LLP, Sewell, New Jersey, Counsel for Defendant.


JOSEPH E. IRENAS, Senior District Judge.

This wrongful death/negligence suit arises out of a fiery car crash that occurred at the drag racing strip owned by Defendant Atco Raceway, Inc. The decedent, Jose Cruz, was severely burned after his racecar crashed into a wall. Although Cruz was able to escape the car and walk away from the crash, he ultimately died.

Before the Court is Defendant Atco Raceway's second Motion for Summary Judgment. For the reasons stated herein, the Motion for Summary Judgment will be granted in part and denied in part.[1]


The Scene and Situation at the Drag Strip

Jose Cruz was one of several drivers who were participating in timed drag racing runs at Atco Raceway on September 15, 2010. The track was not open to the general public that day. Juan Torres, who goes by the name "John Hyper, " rented out the track for himself and his acquaintances, which included Jose Cruz. (Torres Dep. p. 16, 35, 43, 77, 83, 99) Such private "rental days" are distinguished from public "race days" insofar as 10-15 vehicles typically use the strip on rental days, whereas on race days, 50 to 100 vehicles use the strip. (Torres Dep. p. 43-44; J. Swierczynski Dep. p. 59)

Because rental days involve many less vehicles, organizational and safety concerns at the track are different. (J. Swierczynski Dep. p. 59) Fewer Atco Raceway employees work on rental days, and those who are working sometimes do more than one job. (B. Gardner Dep. p. 46-47, 54-55; B. Swierczynski Dep. p. 123-24) Particularly relevant to this case, on race days, two EMTs are stationed inside an ambulance parked at the finish line. (B. Gardner Dep. p. 46; Torres Dep. p. 48-49) In contrast, however, on rental days, the ambulance is stationed at the starting line, and the two EMTs do double-duty: in addition to their EMT responsibilities, one EMT operates the time clock in the timing tower, while the other operates the starting light and hands out time slips. (B. Gardner Dep. p. 46-49; J. Swierczynski Dep. p. 102-03; Johannessen Dep. p. 16-17) Both the timing tower and the starting light are near the starting line.

This was, indeed, the situation on September 15, 2010. EMTs Bruce and Betty Anne Gardner, husband and wife, were operating the starting light and time clock, respectively, while simultaneously being responsible for any medical emergency that might arise. (B. Gardner Dep. p. 49, 66-67; J. Swierczynski Dep. p. 102-03; B. Swierczynski Dep. p. 106-07, 145; R. Gardner Aff. ¶ 3-4) The "Ford heavy-duty diesel ambulance/EMT response Unit" was "stationed near the start line." (R. Gardner Aff. ¶¶ 3-4)

Brian Swierczynski (a.k.a. Brian Sway), the track manager on duty that day, was responsible for: (1) inspecting the racecars prior to racing, and (2) collecting the Technical Inspection Forms (which include a broad release and waiver of liability) that are to be completed by the drivers. (Torres Dep. p. 83, 156-57; B. Swierczynski Aff. ¶¶ 1-2) New Jersey Regulations mandate that a technical and safety inspection be performed prior to racing. See N.J.A.C. § 13:62-2.13. If a vehicle does not pass inspection, it "shall be barred by [Atco Raceway] from participation or practice." Id.

There is conflicting evidence in the record concerning whether Brian Sway inspected Jose Cruz's vehicle on the day of the crash. Plaintiff Evelyn Cruz, and her son, Joseph Cruz, both state that nobody from Atco Raceway inspected Jose's car. (E. Cruz Aff. ¶ 18; E. Cruz Dep. p. 86-88; J. Cruz Aff. ¶ 17[2]) Moreover, Plaintiff testified that Atco Raceway "never" inspects "any" vehicles on private rental days, and she did not see anyone inspecting vehicles on the day of the crash. (E. Cruz Dep. p. 86-88)

But Brian Sway testified that he did inspect Jose's car that day. (B. Swierczynski Dep. p. 111-13) Additionally, Sean Johannessen testified that he saw Sway inspecting Jose Cruz's vehicle. (Johannessen Dep. p. 82-84)

The documentary evidence also raises questions as to whether Jose's car was inspected (or at the very least properly inspected) on the relevant day. As noted in the prior opinion, there are two versions of the technical inspection form in the record (both of which are undated)- one bearing Brian Sway's initials (indicating that he performed an inspection) and one with no initials. Estate of Cruz, 2013 WL 3283964 at *6 n.13. Moreover, even the initialed version of the form is completely blank with respect to 25 out of 35 inspection checklist items. (Pl's Ex. 19)[3] Lastly, Detective Kowalski who investigated the accident, stated in his Investigation Report, "it was apparent immediately that Mr. Cruz's vehicle did not undergo a thorough technical inspection." (Pl's Ex. 20)

It is also undisputed that on the day of the accident, Jose Cruz's National Hot Rod Association (NHRA) license was expired (E. Cruz. Aff. ¶ 21), and that a valid license was required to participate in the type of racing Jose Cruz was doing. (Kowalski Dep. p. 47-49) Detective Kowalski testified that if a driver makes a "sub-10 second" timed run without a valid NHRA license "it would be the track's responsibility to say slow down. If it happens again, you'll be told to leave." (Id. at p. 49) Jose Cruz's time records from that day indicate that all of his runs were under 10 seconds; he made four runs at 8.483, 9.159, 8.603, and 8.561 seconds, respectively, before his fifth run during which he crashed. (Pl's Ex. 21)

The Accident

Sean Johannessen testified that just before Jose Cruz's fifth run, Jose Cruz had installed "long reach spark plugs" in his car. (Johannessen Dep. p. 61-62) Johannessen explained that he could tell that these were "the wrong spark plugs" because he observed Jose's car "misfiring" so badly that "the car would barely stay running;" "it was missing like crazy." (Id. at p. 61, 62)[4] Johannessen testified that he "told [Jose] to put the car on the trailer and don't make another pass... because the spark plugs were hitting the pistons." (Id. at p. 62) Instead, Jose took out the long reach spark plugs and replaced the spark plugs he had been using up until that point. (Id.)

According to time records, Jose Cruz's last run took place at 4:19 p.m. (Def's Ex. E) His vehicle raced down the strip, reaching a speed of 150 miles per hour. (Id.) Then, John Hyper testified, he could "hear the RPMs of [Jose Cruz's] motor just rev to, I mean beyond what... you know, beyond what you know a motor should go, and then a pa-boom, everything just blew up; smoke, black smoke, white smoke, everything." (Torres Dep. p. 110-11)

Sean Johannessen similarly testified, Jose "got roughly to the thousand foot mark, and I believe one of the rods in the engine let go. And all of a sudden, when the motor let go, he had the explosion and a big ball of flame.... I believe it was on the left-hand side of the motor a big ball of flame came out." (Johannessen Dep. p. 30)

Jose Cruz's car came to rest approximately three-quarters of a mile from the starting line. (B. Swierczynski Dep. p. 147)

EMT Betty Anne Gardner testified that from her position at the top of the time tower, she saw black smoke coming from Jose Cruz's car and immediately knew something was seriously wrong. (B. Garner Dep. p. 68-69) She got up from her seated position to start down the 30 metal stairs of the tower. (Id. p. 67, 69) As she was "running" down the stairs, she radioed Atco personnel to report that there had been an accident, and then called 911 from her cell phone. (Id. p. 69) When she got to the base of the tower, she traveled approximately 100 feet to ...

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