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Tony Stewart, parents of Kevin Ward Jr. reach settlement, but judge waiting to dismiss lawsuit

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Tony Stewart and the parents of Kevin Ward Jr. appeared Thursday in U.S. District Court to inform a judge in Utica, New York, that they had reached a settlement in the wrongful death lawsuit the family brought against Stewart.

Ward was struck and killed by Stewart’s car during a sprint car race on Aug. 9, 2014 at Canandaigua Motorsports Park. The incident occurred during a caution flag for Ward’s car, which spun after apparent contact with Stewart’s car.

Judge David Hurd did not dismiss the lawsuit Thursday. He ordered a copy of the settlement filed under seal and said he would dismiss the case once actions involving the estate of the victim had been completed.  Terms of the agreement weren’t divulged.

According to Syracuse.com, lawyers said both parties would be permitted to discuss the case.

On Tuesday, the parties filed a joint motion to have the hearing canceled or postponed to avoid travel inconvenience and “significant costs” on fees and also to avoid having the details divulged. The motion was denied by Hurd, who in a tersely worded ruling that the purpose of the hearing was “not to approve the settlement or to reveal any confidential information.”

Hurd denied a request Wednesday by Stewart to participate in the hearing via speakerphone because of a previously scheduled event with sponsors at his home Wednesday night in Columbus, Indiana.

The lawsuit, filed on Aug. 7, 2015, had been scheduled to go to jury trial on May 7. It has been adjourned without a date and will rescheduled if the stipulation of discontinuance is not filed by August 1.

Ward, 20, died from the injuries he suffered in the incident during the Empire Super Sprints race. 

Stewart, in a deposition Dec. 8, 2016, stated he “attempted to change direction” and that “it was a split second from the time that I saw a person until I got to the person.’’

A grand jury cleared Stewart of any criminal wrongdoing on Sept. 24, 2014. The district attorney revealed publicly after the grand jury’s decision that Ward was under the influence of marijuana at the time of his death. 

Report: Judge deals setback to Tony Stewart, rules civil lawsuit can go forward in Kevin Ward Jr. death

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Tony Stewart has suffered a setback related to the civil lawsuit filed against him by the family of Kevin Ward Jr.

U.S. district judge David Hurd on Tuesday ruled that racing liability waivers signed by Ward do not protect Stewart against wrongful death claims by Ward’s family, according to an ESPN report.

The judge’s decision tosses out a bid by Stewart’s lawyers to dismiss the suit, and also leaves Stewart open to having to undergo a potential jury trial in the civil case.

Ward, 20, was killed when struck by Stewart’s sprint car during a race on Aug. 9, 2014 at Canandaigua Motorsports Park in upstate New York.

Ward’s family filed the federal lawsuit against Stewart nearly a year later after the incident, claiming the retired three-time NASCAR Cup champ was reckless and negligent in the way he operated his sprint car in the race.

Stewart avoided criminal charges when a grand jury chose not to indict him. However, Ward’s family has proceeded with the civil case against Stewart, alleging he intentionally swerved at Ward to intimidate him, but instead struck and killed him in the process.

Stewart’s attorneys had sought dismissal of much of the civil case against him, but Tuesday’s decision will allow the case to go forward. No trial date has been set but that doesn’t rule out the possibility of an out-of-court settlement before then. According to the ESPN report, both sides have been negotiating a potential settlement for the last several months.

Ward was found to have been under the influence of marijuana at the time of the incident, and both he and his father signed standard liability waivers before the race.

While the civil suit can now go forward to potential trial, there’s also the possibility that a jury could ultimately decide to dismiss the suit because Ward had an “assumption of risk” when he climbed out of his race car and proceeded down the racetrack and into the path of Stewart’s race car while cars were still running on the racetrack under a caution flag.

Mediation fails to settle Ward family’s lawsuit against Tony Stewart

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An eight-hour mediation session last week did not lead to a settlement of the lawsuit the family of Kevin Ward Jr. filed against Tony Stewart, a court document shows.

It was the second eight-hour mediation session. The first was held April 18.

With no settlement, the suit will continue as scheduled. A motion on Stewart’s behalf for partial summary judgement will be heard June 23 at U.S. District Court in Utica, New York.

The Ward family filed a wrongful death lawsuit Aug. 7, 2015. Ward died Aug. 9, 2014, after he was struck by Stewart’s car during an Empire Super Sprints race at Canandaigua Motorsports Park in upstate New York.

Ward had exited his car and walked down the track toward Stewart’s car before he was struck. Stewart said he didn’t see Ward in time to avoid hitting him. A grand jury ruled Sept., 24, 2014, that Stewart would not face criminal charges.

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Court documents tell two sides in Ward family lawsuit against Tony Stewart

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Tony Stewart denied turning up the track toward Kevin Ward Jr. in a 171-page deposition that was released this week as part of court documents in the Ward family’s lawsuit against Stewart.

The Ward family filed a wrongful death lawsuit Aug. 7, 2015, nearly a year after the 20-year-old Ward was struck and killed by Stewart during an Empire Super Sprints race at Canandaigua Motorsports Park in upstate New York. A grand jury ruled Sept. 24, 2014, that Stewart would not face criminal charges.

Stewart seeks a summary judgement. A hearing is scheduled April 28 in U.S. District Court in Utica, New York.

Stewart and Ward had been racing together when Ward spun into the wall — Stewart claimed in his deposition he did not hit Ward, while others have countered that in their depositions.

After the incident, Ward exited his car and walked down the track.

Here’s what happened next, based on court documents:

ACCIDENT RECONSTRUCTION REPORTS FILED

Both sides have submitted reports that detailed what happened.

The report on behalf of Stewart states: “When (Chuck) Hebing (who was in front of Stewart’s car) was passing by him, Mr. Ward shuffled his feet and moved about 0.7 feet up the track. But, as soon as Mr. Hebing passed him, Mr. Ward continued moving parallel to the track and also took a step about 1.5 to 2.3 feet down the track, towards and into the path of Mr. Stewart’s car.”

The report on behalf of the Ward family views the matter in a different way. It states: “Immediately prior to impact, Mr. Ward remained relatively stationary and remained outside the path where six preceding Sprint Cars had passed his location without incident. Therefore, Mr. Ward did not cause the impact with (Stewart’s car) but was rather the victim of Mr. Stewart directing his (car) toward his location.’’

The report filed on behalf of Stewart addresses Stewart’s car in the moments before and after striking Ward: “In this case, the inputs to get the car to drive around and avoid contact with Mr. Ward include steering to the left and/or applying some throttle to assist the car’s counterclockwise rotation. We know from the video stills discussed above that the car was pointed towards the infield and traveled down track while in the field of view of the camera. It would take about 1 second for the car to respond to the driver’s steering and throttle inputs.

“That would mean that the driver of the car, Mr. Stewart, had to perceive and react to the emergency of Mr. Ward’s appearance before the full appearance of Mr. Ward from behind Mr. Hebing’s #45 car. Given the typical perception-reaction time of 1.0 to 1.5 seconds for a normal driver in an emergency, and the fact that the track was under caution and the drivers were not racing, Mr. Stewart’s perception-reaction time was reasonable given the visibility, lighting, and unexpected motion of Mr. Ward prior to Mr. Stewart’s car arriving at Mr. Ward’s position.

“In summary, Mr. Stewart simply did not have enough time to react to Mr. Ward’s unpredictable actions and successfully avoid hitting him.’’

The report on behalf of the Ward family also sees that incident differently: “It is apparent Mr. Stewart intentionally caused his vehicle to move towards Mr. Ward by aggressively adding throttle input while counter steering through the turn.’’

TONY STEWART’S DEPOSITION

Stewart gave a deposition Dec. 8, 2016. The full transcript was filed earlier this week by Ward’s side in opposition of Stewart seeking a summary judgment. Ward’s father and mother attended Stewart’s deposition, which took place in Indianapolis.

In his deposition, Stewart was asked about the incident. This was how he answered questions on the matter.

Q. All right. After you saw his car, you saw him; he was on the track?

A. After I — yeah, after I saw his car, then I saw him.

Q. Okay. And —

A. Or a figure. I didn’t know that it was him but I saw —

Q. Fair enough. You saw a person on the track?

A. Yes.

Q. When you saw the car, you knew just procedure, that your pass was to be low?

A. Yeah, he was all the way to the outside — the car was all the way to the outside of the track, so anywhere that we went was going to be below it.

Q. All right. So where were you driving your car when you entered turn 1 as on the track? Middle of the track? Low track? High part of the track?

A. I really don’t remember. I mean, typically you would run somewhere in the middle of the racetrack.

Q. Okay. When you saw Mr. — when you saw the car that was disabled at the top part of the track, did you steer your vehicle in any direction that you recall?

A. No. I was already underneath the vehicle.

Q. You were underneath it. Okay. So you did not change the line that you were on based on your realizing where the car was that was disabled was on the track; is that fair?

A. Correct.

Q. All right. Now, in relation to the car that was on the track, where was the person that you saw on the track?

A. Initially when I saw the car, I didn’t realize there wasn’t a driver in the car.

Q. But at some point you did?

A. Yes.

Q. All right. And when you saw that person, did you from that point on change the direction of your vehicle based on seeing that person on the track?

A. It was a split second from the time that I saw a person until I got to the person.

Q. Okay. Is that a “no”?

A. I attempted to change direction.

Q. Okay. You don’t recall — and when you say you “attempted to change direction,” you attempted to change direction to the left down the track?

A. Correct.

Q. All right. It’s your testimony that you did not at any time after seeing Mr. Ward’s car or Mr. Ward on the track steer your car up the track?

A. No, sir.

DEPOSITIONS FROM OTHER DRIVERS IN AUG. 2014 SPRINT CAR RACE

Chuck Hebing, who was in that race at Canandaigua Motorsports Park and running ahead of Stewart under caution as they approached the area where Ward wrecked, described what happened in his deposition:

“(Ward) was coming down the track. I thought he was actually coming to my car. Me and Kevin have — I might have ran him out of room in that race, so I thought he might have been mad at me. Came at my car. I gassed it, swerved away from him and said to myself that “Next guy in line was probably going to hit him.”

Jessica Zemken-Friesen, who dated Stewart in 2011, also was competing in the race and running behind Stewart under caution. In her deposition, she described what she saw:

A. I was following Tony, and I – they were saying on the radio to stay low, and I was lower on the track, and I was behind him, right directly behind him pulling into turn one and two, and they were telling us to stay low. And I started to come down a little bit, and I could see Tony’s left front wheel turn to the right, closer in the direction of where Kevin was up higher on the racetrack. Um, and then I could see, um, I was just underneath him, and I could look up and see – I could see Kevin still there in front of his car with his hands in the air. And I saw the rear of the car stand up and the – the dust come off the rear tires as Tony hit the throttle.

Q. And then?

A. And then when he – when he hit the throttle the rear of the car came around and the front end of the car went to the left, the car got sideways, and he struck Kevin.’’

Later, Zemken-Friesen was asked:

Q. Do you think Mr. Stewart intentionally hit Mr. Ward?

A. I don’t know what he was thinking or what was going through his mind. I just was behind it and saw what I saw.’

MORE OF TONY STEWART DEPOSITION

Stewart was asked about his temper and various penalties he had been given in NASCAR for his actions, as Ward’s side seeks to show that Stewart has a history of his anger dictating his actions.

Q. All right. Would you say that you have had a — had some issues with your anger throughout the course of your life?

A. Occasionally.

Q. And have you, in fact, sought any counseling or treatment for that?

A. No, sir.

Q. Never had any anger management or counseling or any formalized process to help you with anger?

A. No, sir.

Stewart then was asked about incidents with Brian Vickers, Matt Kenseth, Brad Keselowski and Joey Logano. He also was asked about an incident with Kurt Busch inside the NASCAR hauler at Daytona International Speedway.

Q. Have you had any physical confrontations with any other drivers or people that were related to races where there were any punches thrown or shoves gone back and forth?

A. Kurt Busch.

Q. What happened with Kurt Busch?

A. We had an altercation inside the NASCAR trailer with the officials.

Q. Did you punch Mr. Busch or shove him?

A. Yes.

Q. And who precipitated that physical confrontation, you or Mr. Busch?

A. I did.

Q. And what was — why were you — why did you initiate a physical confrontation with Mr. Busch?

A. For lack of better terms, he initiated the — basically he was antagonizing us in front of the NASCAR officials and very inappropriately.

Q. And but with words?

A. Yes.

Q. And you responded with physical aggression?

A. Yes.

Q. All right. Is it a fair sum-up or not for some of the stuff we’ve just gone through to say that various times you’ve used your fists, your helmet and your car as a tool — as tools of physical force against other racers?

MR. SMIKLE: I’m going to object to the form of the question. It’s vague and ambiguous.

But go ahead and answer.

THE WITNESS: What you’ve shown is — I’ve raced for 38 years, I’ve raced over 1,500 races and what you’ve shown is less than 1 percent of the races that I participated in NASCAR. So altercations like that happen amongst drivers every week. So this is not un — this isn’t out of the ordinary for our sport.

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Tony Stewart withdraws appeal against insurance company

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Court documents show that Tony Stewart has withdrawn his appeal of a district court’s ruling that Axis Insurance Company is not responsible for any claims against Stewart in the death of Kevin Ward Jr.

No reason was given for the action. Stewart may reinstate his appeal by Jan. 30, according to court documents.

By withdrawing the appeal, Stewart could be responsible for all costs defending himself and any damages awarded to Ward’s family in its lawsuit or if there was a settlement.

NBC sent requests for comment to Stewart’s attorneys. They had yet to respond.

Judge David N. Hurd ruled July 29, 2016, in U.S. District Court for the Northern District of New York that Axis was “not obligated to defend” Stewart in the Ward lawsuit and granted Axis’ motion for summary judgment.

The Ward family’s lawsuit against Stewart remains. The case has been sent to mandatory mediation. That is to be completed by March 31, 2017.

Ward died Aug. 9, 2014, after he was struck by Stewart’s sprint car during a race at Canandaigua (N.Y.) Motorsports Park. Ward, 20, 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, 2014, that Stewart would not face criminal charges.

The Ward family filed a wrongful death lawsuit against Stewart on Aug. 7, 2015, claiming that Stewart “wrongfully caused Mr. Ward’s death by acting with wanton, reckless and malicious intent and negligence.’’

Stewart claimed the incident was unintentional.

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