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

36 Comments

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.’’

 

 

 

Las Vegas Winners and losers

Leave a comment

WINNERS

Kurt Busch Winless in 21 previous attempts at Las Vegas, Busch scored an emotional win at his hometown track. Busch took advantage of a strategy call by crew chief Matt McCall and a timely debris caution to take the point and led the final 26 laps. He earned his first win of the season. “This is 20 years of agony and defeat and now today with triumph,” Busch said after the race.

Matt DiBenedettoStill seeks his first career Cup win and the 100th series victory for Wood Brothers Racing, but DiBenedetto finished second in both Las Vegas races this season.

Alex BowmanHe finished fifth but scored more points (43)  than any driver except Denny Hamlin, who had 53 points. Bowman holds the final transfer spot to the next round.

Chris Buescher — His ninth-place finish is his second consecutive top 10 and third top 10 in the last five races.

Chase Briscoe Had a dominant car and scored the win in the playoff opener for the Xfinity Series at Las Vegas.

LOSERS

Austin DillonHis race was going well — he scored 10 stage points — until overheating problems sent him to pit road. He lost nine laps as his crew made repairs and went on to finish 32nd.  That drops him to last among the playoff drivers with two races left in this round.

Chase ElliottWas 10th on overtime restart but got shuffled back and finished 22nd.

Caution comes at wrong time for Denny Hamlin at Las Vegas

Leave a comment

Denny Hamlin said he knew it would happen. He just didn’t know when.

A debris caution during a green-flag cycle proved key to Kurt Busch winning Sunday’s Cup playoff race at Las Vegas and Hamlin finishing third despite leading a race-high 121 laps.

The caution on Lap 237 caught most of the playoff drivers a lap down, forcing them to wave around. Busch was the only playoff driver who had not made a pit stop.

Hamlin, who was leading, pitted on Lap 233. He came in a lap after Alex Bowman stopped. Bowman was running second to Hamlin before the stop.

“Our hand got forced by (Bowman) by him coming in early there,” Hamlin said of his team not wanting to have Bowman gain time with fresher tires. “We both had a lead over the field. I thought we could have run a little bit longer, but we had to answer their strategy because they were within one second of us. We didn’t want to just to kind of give them the lead and count on running them down at the end of the race. You have to keep yourself in front of them.”

Instead of possibly celebrating a win and advancing to the next round, Hamlin left Vegas frustrated with his third-place showing.

“I just hate getting burned by the same thing, that’s it, that’s all I’m saying,” Hamlin said on the radio to crew chief Chris Gabehart after the race. “It’s the same thing I get burned on. I know we had no choice because we were at.”

Gabehart responded to Hamlin on the radio: “The choice is I stay out another five or six laps and if the caution doesn’t come, we have no shot to win. I don’t know what I’d do different. The problem is there is no reason for the leaders to come early because you leave yourself vulnerable to that, but you can’t get all these goofballs to understand that. It’s what happens.”

Even after such a finish, Hamlin is 58 points ahead of Joe Gibbs Racing teammate Kyle Busch, the first driver outside a transfer spot to the next round.

But that wasn’t enough to console Hamlin.

“I just hate missing out on victories,” he said of his playoff spot. “We’re so much better than the six victories that we’ve got. It’s just disturbing. I’ve never been so fast in so many races and not finish it like we feel like we should, but we’re up front. That’s what counts. That’s what’s going to get you to Phoenix, keep getting those wins and keep battling for race wins. You’ll get yourself to Phoenix (for the title race)  and hopefully you’’ll get a championship out of  it. That’s what we’re all here for. That’s what I’m trying to do.”

Hamlin’s finish was his best in the playoffs and came after a first round that saw him score a stage win but not place higher than 12th.

Hamlin discounted the notion that putting together a new Cup team with Michael Jordan for next year and signing Bubba Wallace to drive for it had been a distraction earlier in the playoffs.

“I’ve been working for like 10 weeks on stuff, not just racing stuff, but stuff in general,” Hamlin said. “We’ve had bad breaks. Tonight was just another bad break like Darlington was, to be honest with you. Or Bristol. We led laps. We were, I thought, the best car.”

At Darlington, Hamlin missed pit road and had to go back around. Then a debris caution about 10 laps buried him outside  the top 10 with less than 50 laps left. He finished 13th.

At Bristol, Hamlin started at the rear because his car failed inspection twice before the race. He ran fifth when he had contact with teammate Martin Truex Jr. as Truex returned to the track after pitting. Hamlin finished 21st.

Kyle Busch still below playoff cutline after ‘pretty dismal’ Las Vegas race

Leave a comment

Though he finished sixth Sunday night in the Cup playoff race at Las Vegas Motor Speedway, Kyle Busch described his experience in the Round of 12 opener as “pretty dismal.”

The defending Cup champion now goes into the second race of the round, at Talladega Superspeedway, outside the transfer position to the next round. He trails Alex Bowman, who holds the final transfer spot, by nine points.

“Started a little up, went a little down and finished just kind of mediocre there,” Busch said. “We brought an okay M&M’s Camry. Just didn’t seem to have the overall speed that it needed, especially on the long runs early in the race. Then there late, just no overall speed. Nothing to go blitz anybody and try to make moves and get to the front. We just salvaged along and got what we got. We got lucky to get what we got for sure. It was looking like it was going to be a 12th- or 14th-place day, but came home sixth.”

Busch’s issues began at the start of Stage 2 after he earned the lead by getting off pit road first. As he raced Joey Logano for the lead on the Lap 87 restart, he was on the inside of Logano as they drove toward Turn 3.

That’s when Busch’s teammate, Denny Hamlin, dove to Busch’s inside to make it three wide and then take the lead.

But as Hamlin pulled even with Busch, Busch lurched to the right and made contact with Logano. The Team Penske driver would pit to repair a tire rub while Busch continued.

“I don’t know if (Logano) knew that was coming and didn’t adjust for it and didn’t plan for it,” Busch said. “It kind of seemed like he expected me to go to the bottom and run the bottom and he was gonna run my door.”

Logano said on the radio to his spotter he didn’t realize he was three-wide until it was too late.

Later, Busch pit from fourth on Lap 118 and fell to 28th when his front tire changer’s pit gun broke, resulting in a 22.5-second stop.

“We worked on it and I thought we were making some gains on it and then we got that damage and got way back in traffic,” Busch said. “Then there towards the end, was just able to get lucky on a couple of the last restarts in order to pick off a few spots with the M&M’s Camry and get ourselves in a better position for the finish. It was a pretty dismal day I guess.”

Busch heads to Talladega. He has one win in 30 Cup starts there. He has just one top 10 there in the last six races.

How does Busch plan to navigate the race as he faces his nine-point deficit to the playoff cutoff?

“I’ll just do what I’m told,” Busch said.

What drivers said after Las Vegas race

Leave a comment

Here is what drivers had to say after Sunday night’s Las Vegas race.

Kurt Busch — Winner: “This is what kids dream of when they grow up racing. You dream of winning at your hometown track. And for two decades it’s kicked my butt. And tonight, with this Monster Energy Chevy, I’m in awe. I knew the race would come to us. We needed to get to nightfall and one of those quirky Mac McCall (crew chief) pit sequences finally unfolded. We got lucky. You’ve got to be lucky. And you have to be lucky in any race, but we did it tonight with teamwork and pulling through and just not giving up. … Yeah, the No. 11 (Denny Hamlin) had a ton of speed. I was wide-open. And you just have to manipulate the draft. I pulled out some old drag racing skills on the restarts. I knew that was our strong suit. We just put ourselves in position and we held off. Chip Ganassi was up in the suite somewhere and I could feel him breathing over my neck, I want to win. And we did it.”

Matt DiBenedetto — Finished 2nd: “Two seconds at Vegas.  It’s tough to come that close, just wanted it so bad for this team. I love driving for the Wood Brothers.  I want that number 100 for them so bad and for Menards, the whole family and everything they do for us and the team, and having Duracell on the car this week, we’re keeping her charged up good. Our car was the best it had been at the end, just couldn’t get control on those restarts. The 1 car, Kurt, did a great job. We had completely different ratios for the restarts and once he gained control of the race, he played the right games on the restarts, knew what we had on our weakness there. Man, it’s tough to come that close. I just want it so bad, but I’m proud of the team. They did a great job. My pit crew did a great job tonight and really earned that one for us.”

DENNY HAMLIN — Finished 3rd: “We had a dominant car today and I’m proud of the whole FedEx team for giving me such a great car. By far the best car I’ve had in Las Vegas in a long time. It was really, really good. Happy with it and this new tire here. We’ll run that a few more times this year. Really encouraged by the way we ran, but very disappointed that we didn’t get a win. It’s just been the way that the playoffs have gone. Whoever stays out the longest puts themselves in a great spot to win. … I feel good about it. I certainly had a great day. It’s something I’m happy about, it’s about how we ran and how fast we were. We restarted 13th there with just a few laps and then the top got shuffled and we were able to make some ground on the bottom. If either one of the cautions don’t happen, we’re still in great shape, but it took them like seven laps to get a piece of debris off and then we had debris right in the fuel window.

Martin Truex Jr. — Finished 4th: “We were right there in the hunt coming down after the last pit stop there under green. We were third and we were tracking them down just a little bit at a time. Felt like we were maybe going to have a three-way race for the win and then that caution came out and put us all the way to the back. To be able to battle through that and ended up pitting again for tires because we weren’t going anywhere and restarted like 24th there on not the last caution, but the one before that. To be able to drive back up to fourth is really something. The Bass Pro Toyota was really strong tonight. We needed just a little bit to be as good as the 11 (Denny Hamlin) and maybe the 88 (Alex Bowman), but we were a third-place car, no question. Just missed it a tiny little bit. Decent night. Just needed a little bit more, but happy with the team and the job they’re doing. See what we can do next week at Talladega.”

ALEX BOWMAN – Finished 5th: “I guess it is good to be disappointed in a fifth-place finish. We did not need that caution to come out in the middle of the pit cycle like that. I thought it was going to be ok for us, but we just couldn’t get through traffic as well as we needed to. Our program is continuing to improve and I just feel like this is another Vegas race that go away from us. At least it was a good points day, which is what we need.”

Kyle Busch — Finished 6th: “We weren’t great early on and didn’t quite have the long run speed. We worked on it and I thought we were making some gains on it and then we got that damage and got way back in traffic. Then there towards the end, was just able to get lucky on a couple of the last restarts in order to pick off a few spots with the M&M’s Camry and get ourselves in a better position for the finish. It was a pretty dismal day I guess. I looked like it was going to be about 12th or 14th if we didn’t have some good moves on that last restart there to get us a sixth-place finish.”

Ryan Blaney — Finished 7th: “Overall it was a decent night. We had to start mid pack and were able to drive up through there pretty quick. I thought our Mustang was good and we made good adjustments on it throughout the night. By the second stage I thought we were really strong, we just needed to kind of restart with the leaders and stay in touch with them. That caution that trapped a bunch of us a lap down was unfortunate. I think we were running fourth or fifth at the time. That stunk. We were able to rebound alright and we started third on that last restart and tried to push Matt (DiBenedetto) and get there but the top just kind of trained up on us. It was unfortunate to run seventh but we had a good car and really good adjustments all night. I thought we were right there, it just didn’t all work out. I thought our car was really fast though, so I am proud of that effort.”

Erik Jones — Finished 8th: “It was kind of an up-and-down day. We started off and I didn’t think that our Toyota Camry was really where it needed to be. We were struggling with rear grip in the heat and couldn’t really get the thing going in the right direction. Towards the end, got some track position and had some good restarts and got the car a lot better. We got caught a lap down with the pit cycle and had some contact there with another car trying to avoid (John Hunter Nemechek) and had to come in and pit and fix some damage. It put us behind there with six laps to go, but still good to come home eighth. Top 10, we will take that and move on.”

Kevin Harvick — Finished 10th: “We just missed everything tonight. The car just didn’t drive good. We were slow on pit road and that was pretty much it. We just got buried in the field there.”

Clint Bowyer — Finished 12th: “I was more worried about this race than I am the next two. We didn’t get out of here as good as I wanted to. Obviously, the 1 car was not a car that we needed to win a race. It’s been a hell of a battle back there with cars that are kind of in the same wheelhouse as far as points-wise. Him winning changes that landscape quite a bit, but we’re only 20 points out. It wasn’t near as bad as it could have been. The car was nuclear meltdown and I was lucky to finish, so 20 points is pretty easy to overcome at a track like Talladega that’s for sure.”

Brad Keselowski — Finished 13th: “It just wasn’t the night we wanted. It’s a good thing we had a little bit of a points cushion to lean on and we’ll run our best the next two weeks. It could have been a lot worse. It is frustrating but we are certainly not out of it. We still have a pretty good points cushion so we will try to get through these next two weeks and put up a good race and build ourselves a cushion.”

Joey Logano — Finished 14th: “Unfortunately, we got a little damage there and had to pit for the left-rear tire. You can’t afford to blow a left-rear tire in the playoffs and back the thing in the fence and shoot yourself in the foot. We had to pit and then just no cautions, and then the one time I had a shot at it the 48 just got me, so that was a little unfortunate. Eventually, we got the lucky dog and went around with our Pennzoil Mustang and drove back to 14th. I felt like that second stage, not scoring any stage points there hurts, but we’re still above the cutline and we’ll head on to Talladega and see how that one goes.”

Cole Custer — Finished 16th: “We just didn’t have the restarts we needed tonight. Obviously, the caution that came out in the middle of the green-flag pit stop cycle hurt us. The guys did a good job tonight and were good on pit road too.”

Aric Almirola — Finished 17th: “Our mile-and-a-half stuff has been really good lately. We ran really good at Kentucky, Texas and we’ve just been solid, so I came in here with a lot of confidence. I thought we would come here and run good. The guys have been working really hard on the cars back at the shop and we just missed it tonight. We were off in speed, off in handling, we were not very good at all on pit road. We didn’t do a lot of things right myself included, so it was just a bad night. Nothing went the way it was supposed to go. We’ve got to be better than that. You can’t transfer through these rounds running that poorly, so we’ll go to Talladega and see if we can’t pull one out of our hat.”

JOHN HUNTER NEMECHEK — Finished 20th: “Man, that was a heartbreaker. Our No. 38 Speedy Cash Ford Mustang was on the free side to fire off and we were bouncing on the splitter pretty bad. Seth (Barbour) and the crew did a fantastic job on pit road getting the handling to where we were comfortable, and we fought our way up into the top five. Unfortunately, we had a tire go down towards the end of the final stage and then made contact a few laps later trying to avoid a wreck. Definitely not the finish my guys deserved today.”

Michael McDowell — Finished 21st: “That was definitely a tough finish to what was a much stronger performance by our No. 34 Love’s Travel Stops | Delo team all race long. We ran inside of the top 20 for basically the entire race, getting as high as fifth or sixth at one point; but unfortunately the handful of late-race cautions and multiple restarts just got us shuffled back to where there weren’t enough laps to drive back towards the front.”

William Byron — Finished 25th: “Just a bummer of a result tonight. We really had a good car. We needed to keep adjusting to keep up with the track but we were running inside the top 10 before that caution during green-flag pit stops. Then we could never rally back unfortunately. Being stuck back there, we then got caught up with two laps to go and couldn’t recover.”

Ty Dillon – Finished 26th: “Our GEICO Military team battled all night long. At the start of the race, the car didn’t have enough rear grip to charge and make speed, but Matt (Borland) kept chipping away at it. Our Chevrolet continued to get better throughout the race. The caution came at the wrong time after our green flag pit stop there at the end, which trapped us a lap down. You can’t control those things though. I’m looking forward to Talladega next week. It is important to our Germain Racing team to finish these final six races strong and we will keep working hard to do that.”

Bubba Wallace – Finished 28th: “Awful. Just missed it. On to Talladega.”

Austin Dillon — Finished 32nd: “We were doing what we needed to do. We were a solid, top-five car in Stage 1 and Stage 2 and were able to earn some points during the end of each of the first two stages. We weren’t so fortunate in Stage 3. We were issued a safety violation on pit road with less than 80 laps to go and had to restart at the tail end of the field. We shook it off because we knew that we work well under pressure. We made our way up to 20th and we were in pretty good shape because we were three cars behind the No. 1 car and we were going to run long, probably. But then I suddenly lost all steering and the water pressure gauge pegged at 400 degrees. We made quick repairs but lost nine laps on pit road and that pretty much did us in. I’m proud of this team for continuing to fight. We’ve got two races left in the Round of 12 and we’re not giving up. It’s on to Talladega Superspeedway where anything can happen, and our goal is to win.”

Tyler Reddick — Finished 37th: “We just didn’t really have any luck on our side tonight. I was a little tight to fire off, but we had good overall speed in our car. Unfortunately after our first pit stop of the night, we had a loose right rear tire so we had to make a second stop to fix that and fell a lap down. It’s frustrating to have a car as fast as the one we had and be trapped a lap down, but as a team, we knew we still had a lot of time to get back on the lead lap and into the mix before the race was over. On the final lap of Stage 2, I got into the wall pretty hard and it ended our night early.”