A Fulton County jury delivered a post-apportioned award of nearly $1.3 million to a woman who fractured both ankles when the go-kart she was driving at a Roswell track hit a concrete wall after being bumped by another driver.
The full $2 million verdict was reduced by 36 percent to account for liability apportioned between plaintiff Tanisha Marshall and the “John Doe” driver who bumped her.
Plaintiffs attorney Alexander Hoffspiegel said the case was complicated by a waiver of liability Marshall signed before climbing into the go-kart at Andretti Indoor Karting and Games, which meant the jury had to find gross negligence on the part of the defendant.
“You expect to be bumped at these courses, but that’s why Georgia law and industry standards say you have to have a barrier if somebody runs off the track,” said Hoffspiegel, who tried the case with his father, Hoffspiegel Law partner Lloyd Hoffspiegel, and Mark Link and Ashley Dawkins of Tucker’s Link & Smith.
He said the defense turned down an offer to settle the case for $600,000.
Defense attorneys Barbara Marschalk, Matthew Nanninga and Robert Quinn of Drew Eckl & Farnham did not respond to requests for comment.
The contentious case included a spoliation sanction against Andretti for destroying the wrecked go-kart.
There was also a ruling during jury selection restoring four of five black panelists the defense wanted to strike after the defense could not provide race-neutral reasons for rejecting them.
Earlier this week, there was a posttrial hearing on another sanction the plaintiff is seeking involving the disclosure, just before trial, that additional insurance coverage was available.
According to Hoffspiegel and court filings, Marshall, now 31, went to Andretti’s with two friends to celebrate her birthday in 2014.
The plaintiff’s portion of the pretrial order said there was no safety briefing and, after signing the “Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement,” she strapped herself into the kart.
Because her feet could not reach the pedals, she was given “pedal extenders,” it said. The extenders were “slick, causing her foot slip off them” and “later proved to be otherwise ineffective.”
Marshall had completed one lap around the course when another driver hit her, knocking her into an unpadded section of wall in the “pit” area.
Marshall was knocked unconscious and suffered a split heel and bilateral fractures that required the insertion of surgical pins and was unable to walk for several months.
Hoffspiegel said she’s accrued about $150,000 in medical bills and may require fusion surgery on one ankle.
Marshal, an insurance underwriter and personal trainer, was a “workout fanatic who used to lift weights and run—now she can’t walk long distances,” he said.
The defense portion of the order emphasized the waiver Marshall signed and noted she was “not forced or coerced into signing” it. The defense also said she and the other drivers were given safety instructions and “warnings related to prohibitions on bumping and aggressive driving.”
“Plaintiff knew that she could get hurt riding go-karts and understood that risks of injury existed” and that “participating in the go-kart race could cause serious injury or even death,” the defense argued.
“Presuit we sent a letter of representation and asked them to preserve the go-kart,” he said. “They said ‘no thanks.’”
Marshall sued Andretti’s parent company, AIKG LLC, in Fulton County State Court last year for claims of ordinary and gross negligence.
In February, the plaintiffs team sent a certified offer to settle for $600,000; Hoffspiegel said the highest the defense would go during a mediation was $150,000, which was rejected.
The defense filed a motion for summary judgment, arguing that Marshall’s claims were precluded by the waiver, but Judge Patsy Porter ruled in July that the “risks associated with the deficiencies” in the go-karts and track were not covered by the release and denied it.
She also sanctioned Andretti for failing to preserve the go-kart Marshall drove by barring the defense from arguing it “was in good working order.”
Porter ruled that Marshall did have to meet the gross negligence standard.
A juror declared after the first day of trial that she had heard bad things about Andretti and could not be impartial. Porter declared a mistrial and held the juror in contempt.
A new jury was struck and, during a two-day trial, Hoffspiegel said his key expert was William Avery of Florida’s Avery & Avery, which specializes in attraction and event safety.
The defense continued to argue Marshall assumed the risk, and that the other driver was responsible for knocking her off the track, Hoffspiegel said.
“They also claimed that the state had never cited them, that they passed their inspections every year,” he said.
His team called no medical experts, because Marshall’s injuries are self-evident, Hoffspiegel said.
At closing, plaintiffs counsel asked for “slightly more than $3 million,” he said.
On Dec. 11, after about 4.5-hours of deliberations, the jury awarded $2 million in damages, apportioning 24 percent of the liability to the unknown driver and 12 percent to Marshall, for a total award of $1,280,000.
Afterward, Hoffspiegel said, jurors told him they had no problem deciding the defendant committed gross negligence.
“They said, “the law says they’ve got to have a safety barrier. How could they not know that?’” he said.
Marshall’s lawyers filed a motion on Dec. 12 seeking attorney fees from Feb. 21, when they submitted their $600,000 offer. Under Georgia’s offer of judgment statute, a party that declines a settlement offer and then loses at trial by at least 25 percent more than the rejected offer may be required to pay the other side’s fees from the date of the offer.
The motion also seeks a money sanction because, until just a few days before trial, Marshall’s lawyers had been apprised that there was only $1 million in coverage available under AIKG’s insurance policy.