Bike Week on Trial

Bike Week went on trial before a jury earlier this week in Belknap County Superior Court where two women, who were injured when they were struck by a motorcycle ridden by a drunken biker, are seeking monetary damages from the Laconia Motorcycle Week Association. The suit raises questions about where responsibility for managing the annual rally and safeguarding the general public lies, last posed by former Mayor Mark Fraser, who asked "who owns Bike Week?"

Valerie Lennon and Denise Hugli, who were hit by Brett Phillips while walking alongside on Route 3 near FunSpot in 2004, charge that the accident, which took the life of Phillips's passenger — his ex-wife — was caused by the negligence, not only of Phillips but also of the association and the city. In June 2005 Phillips was sentenced to three-and-a-half to seven years in prison after pleading guilty to negligent homicide and two counts of felony assault. His insurance carrier subsequently reached a settlement with Lennon and Hugli.

Originally, attorneys Christopher Seufert and Robert McDaniel, representing Hugli and Lennon, brought suit against both the association and the city, claiming they were obliged to protect their clients from "the dangerous environment" fostered by the motorcycle rally, to warn them of "dangerous conditions" and safeguard them from "foreseeable dangers."

In August, Justice Larry Smukler quashed all claims against the city by ruling that it is entitled to "discretionary function immunity." On behalf of the city, attorney Molly McPartlin successfully argued that the city undertook a governmental responsibility by preparing a plan for managing traffic during the rally and did not act negligently by failing to execute its plan. Moreover, because the city is a member of the New Hampshire Public Risk Management Exchange (Primex), a risk management pool of municipalities, it is self-insured and therefore, entitled to immunity by state statute.

However, twice during the course of the litigation, Smukler refused to let the association off the hook. On behalf of the association, attorney Derek Lick first filed for summary judgement, contending that the association had neither an obligation nor the authority to protect rallygoers from criminal acts, since management of the flow of traffic and control over the consumption of alcohol rested with the state and the city. Likewise, Smukler declined to dismiss the case on the grounds that the plaintiffs failed to show how the association acted negligently.

Smukler concluded that by "inviting thousands of motorcycle enthusiasts to visit the City and by encouraging them to consume alcoholic beverages, the association could have enhanced a foreseeable risk of criminal conduct," like that of Phillips. He ruled that whether the association's promotional efforts could have contributed to criminal conduct and whether it influenced the city's traffic planning are "genuine issues of material fact," effectively posing the questions the jury must answer.

In his opening remarks to the jury, Seufert referred to the association's articles of incorporation, filed with the New Hampshire Secretary of State in 1993, which specified its purpose as to "sponsor, organize, promote and conduct" the rally. Recalling that prior to 1993 the rally was a weekend event drawing some 30,000 to motorcycle races in Loudon and watering holes at The Weirs, he noted that Mayor Paul Fitzgerald "had this brainchild to take the event to the next level." Since the association incorporated, Seufert told the court that the numbers of attending the rally have swelled to 400,000, who spend some $175-million during their stay.

"It's a business proposition pure and simple," said Seufert of the association, which counts both local businesses and governments among its limited membership. Conceding that the city is no longer named in the suit, Seufert nevertheless emphasized it maintained close relationship with the association with the shared aim of expanding the rally. "Bike Week is basically a marriage between these two entities," he said. "They are one and the same."

Seufert said that by 2003 both Police Chief Tom Oetinger and Fire Chief Ken Erickson began expressing concerns about the capacity of their departments to manage the growing rally, which he called "a monster that got out of control." In response, the city convened what he described as a "commission," referring to the Motorcycle Week Advisory Committee, chaired by Peter Brunette and staffed by volunteers, to decide "how do we get the genie back in the bottle."

A year later, Seufert claimed that concerns had reached the City Council. Reading from minutes of the meeting the night before the accident occurred, he highlighted the remarks of Weirs resident and then Councilor Judy Krahulec (Ward 1), who pointed out that there were no sidewalks or lighting along Route 3 or shuttle buses to ferry visitors to and from remote parking lots. Speaking from the audience, Niel Young said that since there was so little automobile traffic at The Weirs during the rally, motorcyclists posed the only danger to pedestrians. "Was it reasonably foreseeable that someone could get hurt?" Seufert asked rhetorically.

With what he called "negative publicity" mounting, Seufert charged that the association and the city struck a bargain. Charlie St. Clair, executive director of the association, offered to help the city increase its revenues from the rally and in return city officials would lift the "negative shadow. You basically don't tell the public the truth," he said. "The association was hiding from the public that this thing isn't safe."

The association, Seufert told the jury, will say "it's not us. It's either the city or the drunk driver that's responsible. But, everybody knows," he continued, "there are drunk motorcyclists on Route 3. If it hadn't been this drunk, it would have been the one behind him or the one behind him. It was them not taking precautions" he declared, "when they knew things were going to explode."

McDaniel began by asking the jurors to imagine their son or daughter telling them they were taking six friends to a party in Volkswagen bus. "You'd say okay," he remarked, "but if they asked to take 60 friends a week later, you'd say no way." With Motorcycle Week, he said, "you have 400,000 motorcyclists in a small VW bus."

Recalling the accident, McDaniel said that "the city could have done something. A heliport? Barriers? Lights? Reflectors? Close a lane to traffic? Something instead of leaving these ladies lying on the side of the road for 45 minutes because the ambulance couldn't get through the traffic."

McDaniel turned to a copy of the "Rally News," published by the association, highlighting Jagermeister, the "official liquor of the rally," and Coors, the "official beer of the rally," and ticking off advertisements for beer and liquor. Motorcycle Week, he said, is "about booze and speed and people with an approach to life with those elements in it, and it's about money. We're going to take blood, pain and death," he continued, "and mint it into money."

The lawyer insisted that "the point is not to shut down the party, but, if you're going to have a party, take care of the people who are coming. They know today that next year someone will die."

Addressing the jury on behalf of the association, Lick said flatly "they're blaming the wrong party." The association, he explained, "promotes the event. That is all it does. The association has no control over traffic, parking or pedestrians." The sale of alcohol, he continued, is regulated by the New Hampshire State Liquor Commission, not the association. Likewise, Lick said that neither the association nor the city can build sidewalks or install lighting on Route 3, which is a state highway. "You are being asked to assign blame to the association for something over which it has no control," he declared.

"Who could have prevented this accident?" Lick asked. "Brett Phillips and the plaintiffs themselves." He reminded the jury that Hugli and Lennon chose to park at Funspot, then to walk to The Weirs. When they returned, he said, they were the only pedestrians on either side of Route 3, walking on the northbound side of the road, in the dark, with their backs to the traffic just six inches from the edge of the pavement. "It was noisy," he said. "They could not hear the traffic behind them. Are they the ones responsible?"