a425couple
2018-04-07 15:07:42 UTC
Tony Stewart, Kevin Ward Jr.'s family settle wrongful-death suit
Apr 2, 2018
Bob Pockrass
Five weeks before trial, Tony Stewart and the parents of Kevin Ward Jr.
have agreed to settle the wrongful-death lawsuit against the three-time
NASCAR Cup champion.
U.S. District Court Judge David Hurd set a settlement hearing in Utica,
New York, for April 12 to put the terms of the pending settlement in the
public record. A settlement would end the civil lawsuit filed about a
year after Ward's death at age 20 on Aug. 9, 2014, in an Empire Super
Sprints race at Canandaigua (N.Y.) Motorsports Park.
The trial was scheduled to begin May 7, and a settlement keeps both
sides from having to testify and watch video of the accident. It also
keeps a jury from having to determine whether Stewart was reckless in an
accident where Ward had marijuana in his system. A grand jury didn't
indict Stewart, clearing him of any criminal charges, but Ward's parents
claim that Stewart tried to intimidate their son by swerving at Ward,
who had walked onto the track after a crash to express his displeasure
with Stewart.
Court filings over the past two years detailed different views and
expert analysis of the tragedy. Stewart, in a deposition filed with the
court last year, stated he didn't know who it was on the track.
"It was a split second from the time that I saw a person until I got to
the person. ... I attempted to change direction," he said.
Ward apparently was angry after he wrecked while battling Stewart for
position.
"In my opinion, he said there is Kevin Ward, the little whatever, I'm
going to scare him a little bit," Kevin Ward Sr. said in his deposition.
"[He] went up -- intentionally wanted to scare him, throw dirt at him,
whatever by hitting the throttle and he just totally, totally misjudged it."
Ward's parents mentioned that their son was a friend of Stewart's
ex-girlfriend, Jessica Zemken, who also was competing in the race.
"Jessica was right behind him and Kevin was right in front of him, and
that would be a good opportunity to show them both up," Ward Jr.'s
mother, Pamela, said in her deposition.
The Wards' expert analysis indicated Ward "braced himself for the severe
impact, and even made a desperate -- yet futile -- attempt to scramble
out of the path" of Stewart's car.
"It is apparent Mr. Stewart intentionally caused his vehicle to move
toward Mr. Ward by aggressively adding throttle input while counter
steering through the turn," the Wards' expert report states. "Mr.
Stewart's [car's] speed, acceleration, heading angle and vehicle path
towards Mr. Ward was different than the six cars that passed Mr. Ward's
location without incident."
Stewart's crash reconstruction expert stated that Stewart had, at most,
1.4 seconds to react to seeing Ward on the track and that Stewart
"simply did not have enough time to react to Mr. Ward's unpredictable
actions and successfully avoid hitting him."
Ward was hit by Stewart's right rear tire and suffered life-ending
injuries to his chest and heart, a severed spine and a broken leg,
according to the report by Stewart's experts. He never regained
consciousness, according to Stewart's experts, although the Wards'
experts said that was not conclusive. Stewart's car was going
approximately 40-42 mph at the time, and his experts say he did not
swerve to hit Ward.
"Had Mr. Stewart maneuvered his car to go up track, Mr. Ward would have
been contacted by the front right wheel or front of the right rear tire
guard," according to the report by Stewart's experts.
Ward's parents challenged evidence that their son was impaired by
marijuana at the time of the accident. They claim that concentrations of
THC in the blood near the heart often show a heavier concentration than
in other parts of the body and that there were no witnesses to how Ward
got the marijuana in his system.
Ward's family never filed with the court how much in damages it sought.
In New York, parents cannot get damages for their own pain and suffering
but can be compensated for what they could have relied on as far as
financial support from their son as well as if their son suffered pain
and fear of impending death in those final moments. In December, Hurd
declined Stewart's request to throw out three of the four claims against
him because of liability waivers and evidence that Ward did not suffer.
Stewart argued that claims for wrongful death and gross negligence
should be dismissed because a race car driver knows the inherent risk of
walking on a racetrack while under caution and Ward Jr. and his father
(as the car owner) signed waivers that prohibit such legal claims. New
York state public policy law says liability waivers are unenforceable
when signed by people who pay a fee for use of recreational facilities
such as pools or gymnasium. Hurd ruled in December that because both
Stewart and Ward paid a fee (and Ward did not make a living racing
cars), the race fell under that law and the waivers were unenforceable.
Hurd ruled that a jury could decide if a race car driver knows the
inherent risk of walking on a racetrack under caution. He also ruled
that video evidence would allow a jury to make a determination on
whether Ward suffered or had fear before his death.
A trial potentially could have focused on Stewart's temperamental past.
"This case exemplifies what happens when a superstar race car driver
with a documented history of violence on and around the track races
against competitive amateurs who refuse to be bullied," the Wards'
attorney wrote in one filing. "In this case, Defendant Tony Stewart
plays the part of the volatile superstar.
"Although Stewart is a highly skilled driver who easily could have
avoided killing Ward Jr., he also has a storied history of violence both
on and off of the track."
Stewart, and not his insurance company, may be responsible for any
payments of the settlement. Hurd ruled in 2016 that Axis Insurance
Company was not responsible for defending Stewart and paying any
settlements or judgments because the Empire Super Sprints was not among
the series listed as being covered in his policy. After initially
appealing the ruling on the insurance policy, Stewart dropped the
appeal. It is unclear if Stewart had any additional insurance policies
that would cover the Ward family's claims.
Stewart missed three NASCAR Cup races following the tragedy and did not
race a sprint car for more than two years after Ward's death. Following
his retirement at the end of the 2016 NASCAR Cup season, Stewart
returned to sprint-car racing.
http://www.espn.com/racing/nascar/story/_/id/23006392/tony-stewart-kevin-ward-jr-family-agree-settle-wrongful-death-lawsuit
Apr 2, 2018
Bob Pockrass
Five weeks before trial, Tony Stewart and the parents of Kevin Ward Jr.
have agreed to settle the wrongful-death lawsuit against the three-time
NASCAR Cup champion.
U.S. District Court Judge David Hurd set a settlement hearing in Utica,
New York, for April 12 to put the terms of the pending settlement in the
public record. A settlement would end the civil lawsuit filed about a
year after Ward's death at age 20 on Aug. 9, 2014, in an Empire Super
Sprints race at Canandaigua (N.Y.) Motorsports Park.
The trial was scheduled to begin May 7, and a settlement keeps both
sides from having to testify and watch video of the accident. It also
keeps a jury from having to determine whether Stewart was reckless in an
accident where Ward had marijuana in his system. A grand jury didn't
indict Stewart, clearing him of any criminal charges, but Ward's parents
claim that Stewart tried to intimidate their son by swerving at Ward,
who had walked onto the track after a crash to express his displeasure
with Stewart.
Court filings over the past two years detailed different views and
expert analysis of the tragedy. Stewart, in a deposition filed with the
court last year, stated he didn't know who it was on the track.
"It was a split second from the time that I saw a person until I got to
the person. ... I attempted to change direction," he said.
Ward apparently was angry after he wrecked while battling Stewart for
position.
"In my opinion, he said there is Kevin Ward, the little whatever, I'm
going to scare him a little bit," Kevin Ward Sr. said in his deposition.
"[He] went up -- intentionally wanted to scare him, throw dirt at him,
whatever by hitting the throttle and he just totally, totally misjudged it."
Ward's parents mentioned that their son was a friend of Stewart's
ex-girlfriend, Jessica Zemken, who also was competing in the race.
"Jessica was right behind him and Kevin was right in front of him, and
that would be a good opportunity to show them both up," Ward Jr.'s
mother, Pamela, said in her deposition.
The Wards' expert analysis indicated Ward "braced himself for the severe
impact, and even made a desperate -- yet futile -- attempt to scramble
out of the path" of Stewart's car.
"It is apparent Mr. Stewart intentionally caused his vehicle to move
toward Mr. Ward by aggressively adding throttle input while counter
steering through the turn," the Wards' expert report states. "Mr.
Stewart's [car's] speed, acceleration, heading angle and vehicle path
towards Mr. Ward was different than the six cars that passed Mr. Ward's
location without incident."
Stewart's crash reconstruction expert stated that Stewart had, at most,
1.4 seconds to react to seeing Ward on the track and that Stewart
"simply did not have enough time to react to Mr. Ward's unpredictable
actions and successfully avoid hitting him."
Ward was hit by Stewart's right rear tire and suffered life-ending
injuries to his chest and heart, a severed spine and a broken leg,
according to the report by Stewart's experts. He never regained
consciousness, according to Stewart's experts, although the Wards'
experts said that was not conclusive. Stewart's car was going
approximately 40-42 mph at the time, and his experts say he did not
swerve to hit Ward.
"Had Mr. Stewart maneuvered his car to go up track, Mr. Ward would have
been contacted by the front right wheel or front of the right rear tire
guard," according to the report by Stewart's experts.
Ward's parents challenged evidence that their son was impaired by
marijuana at the time of the accident. They claim that concentrations of
THC in the blood near the heart often show a heavier concentration than
in other parts of the body and that there were no witnesses to how Ward
got the marijuana in his system.
Ward's family never filed with the court how much in damages it sought.
In New York, parents cannot get damages for their own pain and suffering
but can be compensated for what they could have relied on as far as
financial support from their son as well as if their son suffered pain
and fear of impending death in those final moments. In December, Hurd
declined Stewart's request to throw out three of the four claims against
him because of liability waivers and evidence that Ward did not suffer.
Stewart argued that claims for wrongful death and gross negligence
should be dismissed because a race car driver knows the inherent risk of
walking on a racetrack while under caution and Ward Jr. and his father
(as the car owner) signed waivers that prohibit such legal claims. New
York state public policy law says liability waivers are unenforceable
when signed by people who pay a fee for use of recreational facilities
such as pools or gymnasium. Hurd ruled in December that because both
Stewart and Ward paid a fee (and Ward did not make a living racing
cars), the race fell under that law and the waivers were unenforceable.
Hurd ruled that a jury could decide if a race car driver knows the
inherent risk of walking on a racetrack under caution. He also ruled
that video evidence would allow a jury to make a determination on
whether Ward suffered or had fear before his death.
A trial potentially could have focused on Stewart's temperamental past.
"This case exemplifies what happens when a superstar race car driver
with a documented history of violence on and around the track races
against competitive amateurs who refuse to be bullied," the Wards'
attorney wrote in one filing. "In this case, Defendant Tony Stewart
plays the part of the volatile superstar.
"Although Stewart is a highly skilled driver who easily could have
avoided killing Ward Jr., he also has a storied history of violence both
on and off of the track."
Stewart, and not his insurance company, may be responsible for any
payments of the settlement. Hurd ruled in 2016 that Axis Insurance
Company was not responsible for defending Stewart and paying any
settlements or judgments because the Empire Super Sprints was not among
the series listed as being covered in his policy. After initially
appealing the ruling on the insurance policy, Stewart dropped the
appeal. It is unclear if Stewart had any additional insurance policies
that would cover the Ward family's claims.
Stewart missed three NASCAR Cup races following the tragedy and did not
race a sprint car for more than two years after Ward's death. Following
his retirement at the end of the 2016 NASCAR Cup season, Stewart
returned to sprint-car racing.
http://www.espn.com/racing/nascar/story/_/id/23006392/tony-stewart-kevin-ward-jr-family-agree-settle-wrongful-death-lawsuit