Trial Magazine

Est. of James Ryan McNeil v. Freestylemx.com, Inc., No. 13cv2703L NLS (S.D. Cal. May 2017).

James McNeil was an experienced professional freestyle motocross rider who began training in the sport at a young age and had participated in the X Games, an annual extreme sports event. Freestyle motocross involves riders jumping their bikes and performing other stunts. Jumps involve take-off and landing ramps, which can be packed dirt or built structures.

McNeil was touring with the company Freestyle­mx.com, which sponsors freestyle motocross exhibitions nationwide. On Nov. 6, 2011, he was practicing for a performance at the Texas Motor Speedway involving a jump over a motor home. A trailer featuring an advertisement for an event sponsor was parked parallel to the motor home, which also was covered in advertisements. A landing ramp was positioned on the opposite side of the motor home, but it had been placed about 10 feet away so that the motor home’s advertisement would remain visible and not be blocked by the trailer in front of it—creating a gap about twice the size it should have been.

During the stunt, McNeil’s bike malfunctioned and temporarily lost power—known in the sport as “bogging.” After realizing that he would not be able to clear the motor home safely, McNeil tried to dismount from his bike and push it away from his body. But the gap between the motor home and landing ramp gave McNeil nowhere to go.

With no air bags surrounding the landing ramp, McNeil hit the unguarded metal ramp as horrified onlookers watched helplessly. He suffered serious injuries and later died in the hospital.

McNeil’s family sued Freestylemx.com and its owner, Marc Burnett, alleging that McNeil’s death could have been prevented if the defendants had installed air bags on the landing ramp and not created such a large gap that would allow a person or bike to fall in. They argued that the defendants’ desire to fully display an advertisement on the motor home’s side affected their decisions regarding the jump’s setup and safety.

Dallas attorneys Dean Gresham and James Mitchell represented the plaintiffs. “We had video of the event itself. And you can tell from the video that had they had air bags, or even not the large gap, there’s no way he would have died,” Gresham said. They viewed frame-by-frame still shots from the video—showing McNeil flying through the air, then trying to push his bike out of the way when he realized he could not complete the jump.

But the attorneys worried about convincing jurors of this fact, despite how obvious the defendants’ negligence appeared to them and their clients. “Our biggest hurdle was the fact that McNeil was a stunt bike rider,” Gresham explained.

The attorneys used analogies to other risky sports, such as scuba diving, and the regulations and safety standards characteristic of those activities. “We had to come up with a way to make the jurors understand that while, yes, motocross is dangerous, certain safety precautions should be taken to make the sport less dangerous,” Gresham said.

They conducted several focus groups to test how jurors might react to McNeil’s perilous job. “Their initial gut reaction was that McNeil was a daredevil, so to speak, and it’s unfortunate but that’s what happened,” Gresham said.

The attorneys started unraveling the story behind what happened, revealing the lack of air bags and that the gap was twice the size it should have been. The defendants and their witnesses claimed the gap between the motor home and the landing ramp was three to five feet, which is standard in the motocross industry.

But the plaintiffs had their accident reconstruction expert 3-D map the ramp setup from video and photographic evidence from the event, which showed the gap was approximately 10 feet. Once the mock jurors heard about the precautions the defendants easily could have taken but didn’t, they started to come around to the plaintiffs’ side.

Before the attorneys could present this theme at trial, they had to overcome the defendants’ summary judgment motion based on assumption of the risk. The court denied the motion, finding that the defendants had a duty not to increase the jump’s inherent risk, which was not affected by what McNeil knew or understood about the risk. The defendants were akin to an “owner-operator” and thus had a duty to set up the jump safely and ensure that reasonable ­safeguards were in place to minimize the risk to riders.

The defendants also claimed that McNeil had signed a liability release before the jump, but questions quickly arose about the release’s authenticity. McNeil’s parents contended that the signature on the document was not their son’s, and a handwriting expert confirmed that it did not match nearly 50 other samples of McNeil’s signature. The witnesses who testified at deposition about McNeil signing the release all still worked for the defendants, which the plaintiff attorneys anticipated would help call their credibility into question at trial.

The parties settled for a confidential amount right before trial was set to begin. As part of the settlement, McNeil’s family received apology letters and an agreement that going forward, the defendants would find a way to fix the gap or use air bags to reduce the risk of injury to riders.

Gresham noted that the case helped propel safety changes at motocross events. “It’s always foreseeable when you’re doing something like jumping a bike over a motor home that something could go wrong if you come up short. Through this litigation, we were able to show other promoters in the industry that just because you’ve done it for so long without incident doesn’t mean something can’t happen immediately,” he said. Now, the X Games and other major motocross events use full air bags that cover the entire landing ramp.

McNeil’s death devastated his family, and they are still struggling with the grieving process and trying to ­understand why his bike malfunctioned. But the industry changes that have resulted from the family’s loss hopefully will prevent others from sharing the same fate. “Now you won’t go to an event and not see air bags all along the landing ramp,” Gresham said.