The widow and nine children of attorney Benjamin Greene filed a wrongful death lawsuit against the Bakersfield Track Club today, on the one-year anniversary of Greene's death.

The lawsuit, filed Wednesday morning in Kern County Superior Court by the Irvine-based Dubin Law Firm, alleges gross negligence and willful misconduct by the club in that organizers ignored weather warnings regarding extreme heat, and instead recklessly operated an outdoor 5K run at Hart Park in extreme temperatures expected to reach well over 100 degrees.

It was during the event in question that Greene collapsed and died.

The event should have been cancelled or postponed, the law firm said in a press release. And, barring that, an ambulance and other medical precautions should have been in place before and during the event, the plaintiffs argue in the document.

"Defendants outrageously chose not to have any life saving devices on site, had no persons hired for medical care or attention, had no plan for emergency, had no ambulance on site, and even did not allow phones of fitness bands in the deadly 110-degree heat," the lawsuit states.

"The delay, lack of any medical staff or equipment, and lack of having any medical transportation was a direct cause of death, the gross negligence of refusing to cancel or postpone the event without taking any meaningful safety precautions."

But Greene, who was 48 at the time, was found to have had drugs in his system at the time of death, the Kern County Coroner's Office said last year.

The coroner's postmortem examination found that the cause of death was hypertensive and atherosclerotic cardiovascular disease, but that methamphetamine, found in Greene's system, was a contributing factor.

The prescription drug phentermine was also detected. That drug is usually prescribed for weight loss.

Friends and supporters of Greene said in the wake of the autopsy report that Greene was on a prescription weight loss drug when he collapsed in 107-degree heat — that he was not taking any illegal drug.

And this morning, Eric Dubin, the attorney representing the Greene family, had this to say:

"There was no meth found in his system, and he was not on any illegal drugs."

Local doctors consulted by The Californian said the two medications can create complications for people with heart issues.

Dr. Jan Trobisch, of Synergy Wellness in Bakersfield, said there is a legal prescription drug, Desoxyn, which is essentially methamphetamine.

It is used, primarily, to treat ADHD, he said. Its secondary use is to help patients lose weight. 

Desoxyn would come out in a blood test as methamphetamine, Trobisch said.

Greene's death on June 20, 2017 raised questions in the community about why the run was held during a heat wave and whether or not the temperature caused Greene's collapse.

The Bakersfield Track Club, which put on the event, had five aid stations available to runners providing water and other items due to the high heat. Typically, there are only three aid stations during events.

Phone messages left for club board members were not immediately returned Wednesday. But in a private message sent through the club's Facebook page, a spokesperson said club leadership would have no comment as they had not had a chance to read the lawsuit.

"Gross negligence" by the track club is pointedly alleged by the plaintiffs. It's a legal term that may be central to the case.

Two local attorneys not connected to the case reached by The Californian following Greene's death agreed that proving gross negligence can be difficult.

According to the track club's website, every person who participates in such events is required to sign a waiver, which reads as follows:

"In consideration of this entry acceptance, I hereby for myself, my heirs, executors, and administrators, waive all of my rights for damages I may have against the County of Kern, the Bakersfield Track Club, the race sponsors, or any individual associated with the above and for all injuries sustained by me in this event. I attest and verify that I am physically fit and have sufficiently trained for this race."

Daniel Rodriguez, a Bakersfield attorney who specializes in civil cases, said if gross negligence can be proved, even a well-written waiver can become ineffective.

"Legally speaking, "Rodriguez said, "a claim for gross negligence cannot be waived. So, the question would be whether there is enough evidence to prove gross negligence to a jury."

He and Bakersfield attorney Matthew Clark agreed that is not easy.

"It's very, very rare you find a circumstance of gross negligence," Clark said.

"It's a pretty tough row to hoe, legally speaking," Rodriguez added.

The "assumption of risk" doctrine was established from the foundational case, Knight vs. Jewett. It involved a woman who joined to play in a co-ed flag football game.

As one point she fell, someone stepped on her hand and seriously injured it, and she sued.

The court found that the game of football is one in which players can fall down and be stepped on. These are risks inherent to the sport, the court found. In such cases, the participants are making an assumption of risk.

"The question is, can you get over this assumption of risk?" Clark said.

There are risks inherent to running long distances. Turned ankles, blown knees, torn hamstrings — and, and the Greene case shows, much worse.

But everyone who participated knew it was going to be brutally hot. The weather could not have been a surprise.

However, on the other side of the ledger, Rodriguez said, there apparently was no portable defibrillator, no ambulance on scene on one of the hottest days of the year at a time of day when summertime air quality is often less than pristine.

Neither attorney makes a judgment. They merely raised questions, on both sides, that could be germane in a court of law.

Greene was survived by his wife Michelle; children Erica, Jacob, Destiny, Tayler, Tyler, Joseph, Cyrus, Laila and Bella; parents Donald and Georgeann Greene; and brother Andrew.

(19) comments

Brazengunrunner91

Sad situation but he obviously did NOT have enough life insurance which is inexcusable for a person of his financial means and now his family is trying to have the BTC pay for his lack of being prepared. He was a nice man but I will always remember him at court looking lustfully at every woman that walked near him and being surprised that he was making it so obvious. Throw this case out and remember people YOU ARE GOING TO DIE! MAKE SURE YOU HAVE ENOUGH INSURANCE to handle things after you are gone.

Sheebe

This lawsuit has no merit. Throw it out.

bobspapa

Breathing in chalk dust at last year's via artë rendered me sterile. I needs me a lawyer.

TimRoss

Please put me on the jury that decides this case. Please. How many big trucks would it take to deliver the BS contained in this lawsuit? A lawyer, 48 years old, with drugs in his system has a medical problem running on an extremely hot day...wait for it...and the family wants to sue. Sorry, but I have zero financial interest in paying anybody. Sorry for the loss of life? YES! Thinking somebody needs to pay? NO! He was a very intelligent man who made his own decision. Freedom is what we celebrate in America. He made his own decision to run the race. I applaud his courage and enthusiasm. Trying to get somebody else to pay for his decision...Can't support that.

Stating the obvious

This lawsuit personifies what is wrong with our country- ZERO individual responsibility. Ben chose to run in the heat and do meth (which we ALL knew he did) so he assumed the risk. It's sad- but why should others have to fork over $$ cause Ben chose to do this to himself?

BakoMark

Total BS. They are hoping their homeowners policies, members of the board, kick in. Non paid board members serving on non profits generally get covered to policy limits. Soubds like he wasmt insured which is sad. A few million is so cheap these days.

Concerned Citizen of Bakersfield

I can’t wait for the Ben Green 3.8K memorial run where instead of crossing the finish line, you just flop over and play dead at marker 3.8 like good old meth head Ben

SonoftheKRV

What were the circumstances, after the autopsy, that led to this lawsuit being filed? The Sheriff, who is also the coroner, had to be no friend of Greene, whose criminal defense practice regularly minimized or defeated numerous sheriff department investigations which amounted to countless man hours and untold expenses down the drain, as far as the sheriff is concerned. What did you think the sheriff's coroner report would say? What do the sheriff's coroner reports ALWAYS say when the deceased is guilty of not laying down and letting the sheriff dept "have it's way" with him/her or others? If you believe the reports, then ALL hispanic males age 18- 35 are habitual users of pcp, meth, and heroin. Ask the families of all the unarmed men who have been killed by the so called self styled "law enforcement" agencies of City of Bakersfield and County of Kern in recent years. Families like those of David Silva, James DeLaRosa, Adrian Hernandez, Ronnie Ledesma, Hugo Celio, and Isaac Cervantes. The sheriff is responsible for all so-called "law enforcement" the County of Kern. As coroner, he gets the final say on every death in County of Kern. If you've made a career of opposing the iron will of Donny Youngblood, I GUARANTEE you that when you die, you will be found to have pcp or meth in your blood, at the very least. And who is going to investigate that claim? These propaganda dispensers that call themselves "news" organizations in Bako certainly will not. They are in the business of selling you the "official" version of events as dictated to them by the police. They NEVER BUT NEVER investigate ANY claims made by police about people they have committed crimes against. At the very least, a coroner should be cognizant of the fact that certain common medications can and do cause false positives for illicit drugs. This is well understood by medical professionals everywhere. That being said, it becomes clear that the sheriff used this as a last opportunity to retaliate against a man no longer able to defend himself, in essence calling him a criminal, a dope fiend, and stupid all at once. So how does the family ignore such obvious defamation and slander by the sheriff, a man known for threatening little children in the 80's in order to get them to lie on the witness stand and proclaiming publicly that is is better to kill citizens than to just injure them because it costs less money, and instead files suit on the friggin track club hosting the voluntary event Greene made an affirmative choice to engage in? Is it a matter of suing whomever based on the likelihood of winning money or the most money, no matter if it's right or not? I don't know, i'm not an attorney.

Bodysnatcher

SonoftheKRV You’re either still being a pouty-face because you lost your criminal case where Greene represented you. Or, he wouldn’t share his Meth with you while he represented you during your criminal case. Which is it?

SonoftheKRV

Hey, that's an intelligent and insightful response, there, Bootyscratcher. So I take it you were a client as well, then?

Athanasios

SonoftheKRV - So, to summarize your long and incoherent thesis, Donny Youngblood had the coroner rule there were methamphetamines in his system in order to get back at Greene. Did he use a black helicopter as well? Curious minds want to know.

SonoftheKRV

Donny Youngblood IS the coroner, moron. I would imagine ANY amount of the written language would seem long and incoherent to an illiterate buffoon. Please tell your mommy or daddy that i apologize for not dumbing my comment down enough so that you could have read it yourself. It won't happen again.

rrogers512

First, his passing was tragic and I feel sympathy for his wife and children. Second, this case should be thrown out of court. As the first commenter stated, nothing compels an adult to run in any 5K. These particular runs are inexpensive ($7 entry fee) and offer no prizes of any sort. BTC certainly makes no claims that running in 100 degree heat (or running period) is completely safe. My wife and I compete in these Summer Series runs regularly. We chose not to attend on that particular day due to the extreme heat. Others chose to run and completed the race without incident.

This case should be quickly dismissed so that BTC is not burdened with legal fees defending itself against such a specious claim. BTC is a small, local non-profit that organizes many 5K runs and walks that support charitable groups and exercise / wellness in the Bakersfield area.

Citizen Kane

THE MAN CHOSE OF HIS OWN VOLITION TO RUN IN THAT RACE. HE COULD HAVE ABSTAINED OF HIS OWN CHOICE AS WELL THAT HE WAS A DRUG ADDICT IS HIS PROBLEM NOT OURS AND HIS OWN CHOICES AND LACKING PHYSICAL CONDITION COUPLED WITH HIS OWN BAD DECISION TO RUN IN 107 DEGREE WEATHER KILLED HIM. OH AND THE METH TOO. DOPE IS NOBODY'S FRIEND KIDS. LET THIS BE A LESSON-DON'T DO DRUGS!

kozwoman

I ran that race that night. Yes, it was hot. However, I took some precautions to make sure that I didn't hurt myself. I ran slower, I carried baggies with ice in my shirt and neck. I drank water at each aid station, and I poured water on myself. I also didn't use any drugs while I was running. His family should not be suing BTC for his own mistakes.

Athanasios

Runners are a curious breed and many of them would welcome conditions such as existed that day as a great “test” of their abilities. I’m sure there were plenty of other runners that day who finished the race. While I’m sorry for Greene’s family, ultimately he made the decision to run and BTC didn’t force anyone who entered to run the race.

biotron2000

Sad. They guy was on drugs, period. Unless the club supplied them, they have no culpability.

KenWitham

This will be interesting to watch. I don't see how BTC can be found at fault, but I'm not a judge or attorney.

ddhinds

Of course, for every situation, there is an attorney who will take the case. Seems to me, the law suit is ill-advised given the fact of drugs being found.

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