Wrongful death lawsuit filed against Tony Stewart by attorneys for family of Kevin Ward Jr.

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Attorneys representing the family of deceased sprint car driver Kevin Ward Jr. filed a wrongful death lawsuit Friday against Tony Stewart in the 5th Judicial District for the Supreme Court of the state of New York in Lowville, N.Y.

Ward was struck and killed by Stewart Aug. 9, 2014 during a sprint car race at Canandaigua (N.Y.) Motorsports Park. Ward exited his car after hitting the wall and walked down the track toward Stewart’s car during the caution when he was hit and killed. An Ontario County (N.Y.) grand jury ruled Sept. 24 that Stewart would not face criminal charges.

The attorneys for the Ward family said in a release that the lawsuit claims Stewart “wrongfully caused Mr. Ward’s death by acting with wanton, reckless and malicious intent and negligence.”

Ward’s parents said in a statement: “Our son was truly the light of our lives and we miss him terribly every day. Our hope is that this lawsuit will hold Tony Stewart responsible for killing our son and show him there are real consequences when someone recklessly takes another person’s life.”

Stewart-Haas Racing had no comment Friday. Stewart is represented by Indianapolis attorney James Voyles, whose clients have included boxer Mike Tyson. Voyles also helped Bill Simpson file a lawsuit against NASCAR after Dale Earnhardt Sr.’s death in 2001.

The Ward family, which is seeking punitive damages, has requested a jury trial. The lawsuit does not specify the amount of damages the family seeks.

“Kevin Ward would be alive today if not for the reckless and dangerous actions of Tony Stewart, who eventually will have to answer for what he did,” said Mark Lanier of The Lanier Law Firm in a release. “The past year has been extremely difficult for Kevin’s mother and father, and they’re still trying to cope with their unimaginable loss.”

The release also says that the family or its lawyers do not plan further comment.

NBC Legal Analyst Jack Furlong said on NASCAR America on the timing of the lawsuit being filed Friday while Stewart was competing at Watkins Glen International: “Strange would be one word. The more cynical amongst us would say the publicity value is not lost on any of us. It’s the one-year anniversary (of the incident).

“It is, in effect, a statement across the bow of Tony Stewart’s people that if you think we’re going away quietly, you are sadly mistaken.”

Furlong said that once the lawsuit has been served to Stewart and a response made, both sides can begin the discovery phase, “meaning taking depositions, exchanging documents, experts’ reports, statements, you name it, the whole gamut.”

Michael McCann, a Massachusetts attorney and director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law, wrote for Sports Illustrated last year that “a successful wrongful death lawsuit could lead to millions of dollars in damages, particularly since wrongful death damages are largely contingent on the decedent’s age and loss of future earnings.”

Kevin Ward Jr. was 20 when he died.

McCann wrote that “Ward’s family would need to convince a jury that Stewart’s conduct was probably unreasonable and caused Ward’s death. Other drivers would be called to testify as experts and offer their views as to the reasonableness of Stewart’s conduct. Stewart himself could also be called to testify. His ability to invoke the Fifth Amendment to avoid answering questions would depend on whether the questions asked of him require him to admit that he engaged in criminal conduct.”

The lawsuit, filed on behalf of Kevin Ward Sr. and Pamela Ward, states that six cars passed by Kevin Ward Jr. after he exited his car and walked down the track.

The lawsuit states: “As Stewart’s car approached Ward, who was standing on the track, Stewart climbed up, gunned his engine, causing his 700-horsepower vehicle to slide and strike Ward with his right rear tire, crushing Ward and flinging his body an estimated 25 feet down the track.”

The lawsuit states: “Defendant Stewart could have easily acted reasonably and with prudence to avoid striking Ward, just as all other drivers had done as they passed Ward during the yellow caution flag.

“Stewart acted with disregard for Ward’s life and safety by driving his vehicle in a manner that would terrorize Ward and thereafter strike, severely injure and kill Ward.

“Stewart’s conduct, by gunning his engine on a track that had been under caution for an extended period of time proximately caused the harm suffered and death of Plaintiff’s decedent herein.”

The lawsuit also states: “The personal injuries and death sustained by Ward were caused solely by the negligence and/or recklessness of the Defendant (Stewart) and without any negligence on the part of the Plaintiff Decedent contributing thereto.”

Michael Tantillo, Ontario County District Attorney, said after the 23-member grand jury decided not to charge Stewart that toxicology levels indicated that Kevin Ward Jr. was under the influence of marijuana “enough to impair judgment” at the time of the accident.

Tantillo said the grand jury saw two videos of the incident – one that became public shortly after the incident and one that did not. Tantillo said that “the videos did not demonstrate any aberrational driving by Tony Stewart until the point of impact with Kevin Ward.”

After the grand jury’s decision, Ward’s mother  issued a statement on behalf of the family:

“Our son got out of his car during caution while the race was suspended. All the other vehicles were reducing speed and not accelerating, except for Tony Stewart, who intentionally tried to intimidate Kevin by accelerating and sliding his car toward him, causing the tragedy.

“The focus should be on the actions of Mr. Stewart and not my son.’’

In an interview with The Associated Press on Sept. 26 – two days after the grand jury declared he would not face criminal charges – Stewart said: “I know 100 percent in my heart and my mind that I did not do anything wrong.”

Stewart also told the AP then: “I would hope (the Ward family would) understand – maybe they do, maybe they don’t, maybe they never will – that I do care. I’ve tried to be respectful of their process of grieving and not push myself on them. I’m sure they have things that they want to know what happened, and I think it’s important for them at some point to hear it from my point.”

In a Sept. 29 press conference at Stewart-Haas Racing, Stewart told reporters that he had viewed video of the incident and it reaffirmed his belief it was an accident.

Asked about the revelation that Kevin Ward Jr. had marijuana in his system, Stewart said at the press conference: “A young driver lost his life. No matter what was said, it was a tragic accident. I know in my heart that it was 100 percent an accident.’’