Kevin Ward Jr. was killed in a Canandaigua sprint car race in August 2014 after being hit by Stewart's car
A hearing is scheduled in April in federal court on a pending settlement agreement in a wrongful death suit brought against professional stock car racing driver Tony Stewart by the parents of Kevin Ward Jr.
Kevin Sr. and Pamela Ward blame Stewart for the death of their son, who was hit by Stewart's car during an Aug. 9, 2014 sprint racing event at Canandaigua Motorsports Park, since renamed the Land of Legends.
The Wards claim Stewart negligently gunned his engine during the caution issued after he allegedly caused a crash with their 20-year-old son's car, went into a spin and fatally struck the amateur driver who had gotten out of his car, expressing anger toward Stewart. They are seeking unspecified damages for negligence, pre-impact terror and post-impact pain and suffering.
An Ontario County grand jury later that year declined to bring criminal charges against Stewart, finding Ward Jr. had marijuana in his system and his judgment was impaired when he got out of his car and approached Stewart after the initial collision. Stewart has always maintained the incident was an accident.
The Wards, Stewart and their attorneys are scheduled to appear at 2 p.m. April 12 in U.S. District Court for the Northern District of New York in Utica, Oneida County.
Attorneys for both parties could not be reached for comment Tuesday.
Recent court rulings against Stewart may have led to the proposed settlement.
Specifically, the Wards say Stewart caused the on-track fatal collision by improperly maneuvering his vehicle toward their son, a fellow driver, after race officials signaled for caution on the track.
The suit was originally filed in 2015 in Lewis County where the Wards live, but Stewart had it moved to federal court and filed a counterclaim for indemnification based on liability releases both racers signed off on before the race.
The Wards, in federal court in Utica in October, claimed the releases did not apply to the particular facts of the case.
In a Dec. 12 decision, U.S. District Judge David Hurd sided with the Wards, saying their son had paid fees to Empire Super Sprints and Canandaigua Motorsports Park as an amateur driver for a chance to race at the track for fun, not profit, voiding a liability clause of the release.
He notes both drivers pursued the sport since childhood with Stewart starting in 1979 racing go-karts and reaching the “pinnacle” of the sport in 1996 when he made his NASCAR debut and went on to achieve “phenomenal success” as a professional driver.
“All of these professional achievements meant that an ESS-sponsored sprint car event like the one being held in Canandaigua on Aug. 9 (2014) had become just sort of a 'hobby' or 'recreational activity' that Stewart, by then a seasoned professional driver known for having a legendary temper, attempted to squeeze into his busy schedule whenever the chance arose,” Hurd wrote. “If it had not been cut short at just 20 years, the arc of Ward Jr.'s racing career might have one day ended up looking much the same.”
Hurd further notes during one of the early laps of the Canandaigua race, Stewart passed Ward Jr. using an aggressive maneuver known as a “slide job,” forcing Ward Jr.'s sprint car to crash into the outside wall of the race course, with officials immediately waving yellow caution flags and telling drivers to continue driving at “idle” speed and to “stay low” on the track, away from Ward Jr.'s car.
A witness, Jessica Zemken-Friesen, according to the decision, saw Ward Jr. out of his car, gesturing toward Stewart's vehicle with obvious displeasure.
Stewart, the decision says, did not see Ward Jr. on the tracks. Zemken-Friesen, a friend of Ward Jr.'s, testified she saw Stewart turn the front wheels of his sprint car to the right and “hit the throttle” as he approached Ward Jr.'s position on the track, a maneuver that made his 1,400-pound race car go sideways and into Ward Jr.'s body.
Stewart maintained his maneuver was a last-ditch effort to avoid disaster in the split second he realized a person was standing in his path on the track.
Hurd ruled the releases he relied on for indemnification were invalid under a 1976 New York consumer protection law that voids exculpatory clauses for qualified fee-paying users at certain establishments, including “places of public amusement or recreation,” and found Ward Jr. was a qualified user, paying a fee to use the track for recreational purposes, not professional purposes, as argued by Stewart.
Stewart also argued Ward Jr. assumed risk because serious bodily injury or death from a collision with another driver is an inherent risk of auto racing, but Hurd said participants will not be deemed to have assumed risks of reckless or intentional conduct or concealed or unreasonably increased risks.
The Wards argued the circumstances of the Canandaigua collision differed in that racers are normally expected to slow down during a caution, move away from a crash and be mindful that unexpected people, such as emergency responders, might be hurrying onto the track, but that Stewart failed to adhere to those instructions, instead turning and accelerating his car toward Ward Jr.
“Therefore, even assuming Ward Jr.'s decision to walk onto the track's driving area while the race was under a 'caution' heightened his own risk of injury, it does not follow that this conduct gave other participants in the race, such as Stewart, carte blanche to act unreasonably in response,” Hurd wrote. “Accordingly, the question of whether or not Ward Jr. assumed the risk of defendant's actions cannot be resolved at this time.”
He ruled there were genuine factual disputes over whether — and to what extent — Stewart's conduct during the caution period of the race may have unreasonably increased the risk that Ward Jr. assumed, and that these were issues to be decided by a jury at trial.
Stewart moved to appeal the ruling, but Hurd noted appeals in federal court, unlike state court, are limited to review of only the final decisions of a district court and that a final judgment had not yet been entered in this case. He scheduled for the trial to begin May 7.
The next entry in the court docket is the notice of an in-person settlement hearing entered Monday and set for an April 12 hearing to finalize the proposed settlement.