The parents of a driver killed during a race after he was struck by the car of former NASCAR champion Tony Stewart contend that Stewart’s intention to scare their son went awry, court documents state.

However, Stewart, 45, has asked a federal judge to dismiss multiple claims against him in a wrongful death lawsuit filed by the parents of Kevin Ward Jr., who was 20.

Stewart, a Columbus resident, contends that:

He didn’t have enough time to react to avoid Ward, who was approaching his vehicle on foot

Story continues below gallery

He did not drive toward Ward

He is not liable because Ward knew the risks of racing and had accepted them, based on race and series registration documents he signed

Ward increased his risk of harm by exiting his vehicle

Ward’s judgment was impaired by marijuana found in his system

Stewart’s attorneys filed a motion for partial summary judgment Tuesday, and a corrected motion Wednesday, requesting that claims related to negligence, conscious pain and suffering, and pre-impact terror be dismissed.

If Stewart’s motion is successful, it would remove two claims in the lawsuit by the Wards: wrongful death, and conscious pain and suffering and terror. Only the Wards’ intentional/reckless conduct claim would remain.

Kevin Ward Sr. and his wife Pam Ward filed the wrongful death lawsuit Aug. 4, 2015, against Stewart. The lawsuit blames Stewart for the death of their son and seeks unspecified monetary damages.

Stewart and Ward competed in an Empire Super Sprint race the evening of Aug. 9, 2014, at Canandaigua (New York) Motorsports Park, where Stewart’s car struck and killed Ward.

At the time of the accident, the race was under caution, but Ward had exited his wrecked vehicle and moved down the track toward two cars. The driver ahead of Stewart’s car, Chuck Hebing, swerved and missed Ward, a moment before Stewart’s vehicle collided with Ward, court documents state.

A hearing for the motion to dismiss is set for 10 a.m. April 28 in New York’s Northern District court. Whether the lawsuit proceeds that far, or even to a trial, is uncertain because both parties have to participate in a mandatory mediation process to see if they can resolve the matter. A judge granted an extension for mediation to be completed by April 21.

Should the lawsuit eventually proceed to a jury trial, jurors would hear two different explanations of what happened.

Kevin Ward Jr.’s parents said in their depositions that while Stewart did not intentionally try to harm their son, he tried to scare him and erred in doing so.

“In my opinion, he said there is Kevin Ward, the little whatever, I’m going to scare him a little bit. Went up — intentionally wanted to scare him, throw dirt at him, whatever by hitting the throttle and he just totally misjudged it,” Kevin Ward Sr. said in his deposition.

Ward’s father also said in his deposition that the cars driven by his son and Stewart made slight contact earlier in the race, which caused Ward’s car to slide up the track and strike a concrete barrier. He added that he believes Stewart gunned his car’s engine on the caution lap to move up toward Ward.

Ward’s mother said in her deposition that she thinks Stewart was trying to show up her son and Jessica Zemken, also a driver and former girlfriend of Stewart’s, who was just behind Stewart in the race.

“I think he intended to throw dirt on Kevin. I think he was angry. I think he was maybe a little upset because a 20-year-old kid was coming down the track approaching him. I think he also acknowledged that 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,” Pam Ward said.

The mother added in her deposition that she thinks a jury needs to know about Stewart’s alleged past anger issues.

Stewart said in his deposition that he had little time to react once seeing a person — Ward — on the track.

“It was a split second from the time that I saw a person until I got to the person,” Stewart said, adding that he attempted to change direction down the track to avoid Ward.

Stewart also said he initially didn’t realize a driver was not in the damaged car when he came around on the caution lap.

An analysis of the fatal accident performed by a forensic engineering and fire investigation company, Scientific Expert Analysis (S-E-A), which was retained by Stewart, concluded that Stewart had a maximum of 1.4 seconds from the time driver Charles Hebing passed Stewart to the time Stewart’s car reached Ward.

“Mr. Stewart simply did not have enough time to react to Mr. Ward’s unpredictable actions and successfully avoid hitting him,” the analysis stated.

During the deposition of Hebing, an attorney for Stewart highlighted a statement the driver made to a sheriff’s deputy after the accident: “I jerked the car to the left and stepped on the gas to turn the car quicker to get away from him and then I said to myself that the next guy is not going to have time to get around him and is going to hit him and that it what happened.”

S-E-A’s analysis also stated that Ward placed himself at risk by exiting his car and walking 28 steps toward Hebing’s and Stewart’s cars. Ward’s black racing suit offered no contrast against the brown/black racing surface, and his car cast a shadow on him.

“For the entire time that he was outside and walking away from the safety of his car, Mr. Ward was essentially camouflaged from other drivers’ view,” the analysis said.

Stewart was driving down the track, in an avoidance maneuver, the analysis stated. That’s why the right rear wheel of Stewart’s car struck an approaching Ward, and not the front right wheel, and caused Stewart’s car to turn clockwise up the track, the analysis said.

Brian Ennis, a flagger on the backstretch of the racetrack the night of the accident, said during his deposition he saw Ward walk into the path of Stewart’s car.

“I watched Kevin come down the track closer to the cars and as Chuck (Hebing) went by it looked like Chuck went to the left a little bit to get away from Kevin and then Tony was behind Chuck and I watched Kevin walk directly into the right rear tire of Tony’s car,” Ennis said.

S-E-A’s analysis also concluded that Stewart was driving about 40-42 mph — faster than some cars but slower than others.

“Mr. Stewart was not operating his racecar in a dangerous or reckless manner as he entered Turn 2 under caution,” the analysis stated.

Should it be determined that Stewart is liable for any payments in the wrongful death lawsuit, he would have to pay them himself. Stewart previously dropped his appeal of a court ruling that said Axis Insurance Co. would not be liable to pay any damages associated with the wrongful death suit.

What's next

A federal judge granted the parents of Kevin Ward Jr. and Tony Stewart until April 21 to complete a mandatory mediation process.

A hearing on a motion by Stewart to dismiss multiple claims in a wrongful death lawsuit brought by Ward’s parents is set for 10 a.m. April 28.

Author photo
Kirk Johannesen is assistant managing editor of The Republic. He can be reached at or (812) 379-5639.