Kevin Ward Jr. would be alive had “volatile superstar” Tony Stewart exercised the degree of caution exhibited by six other sprint car drivers and not aggressively driven toward Ward, his parents claim in a wrongful death lawsuit.

Kevin Ward Sr. and his wife, Pam Ward, are asking a federal judge to deny Stewart’s motion to dismiss multiple claims against him in the lawsuit.

Stewart, 45, and Ward Jr., 20, competed in an Empire Super Sprints race the night of Aug. 9, 2014, at Canandaigua (New York) Motorsports Park, where Stewart’s car struck and killed Ward.

A forensic analysis performed by an engineering firm hired by the Wards, Gordon Engineering of Henrietta, New York, concludes that Stewart was at fault, according to court documents. Specifically, it states:

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Stewart did not follow caution procedures by slowing down and driving low on the track, like other drivers did

Ward remained relatively stationary outside the path where six preceding cars passed, and he did not cause the impact

Stewart showed intentional disregard for Ward’s safety

Stewart steered toward Ward and applied the throttle, striking and killing him

Stewart’s cavalier and deliberate actions caused Stewart’s car to slide up the track and hit Ward

Ward’s parents filed the wrongful death lawsuit against the three-time NASCAR champion and Columbus resident on Aug. 4, 2015 — about 11 months after a 23-person Ontario County, New York, grand jury declined to indict Stewart on either of two charges: manslaughter in the second degree and criminally negligent homicide. The Wards did not specify an amount of money they are seeking in damages.

A hearing for the motion to dismiss is set for 10 a.m. April 28 in New York’s Northern District court, but both parties have until Friday to complete a mandatory mediation process to see if they can resolve the matter.

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

The race was under caution at the time of the fatal accident. Stewart and Ward were racing side by side when Stewart attempted to gain track position on Ward, who wrecked in Turn 2, court documents state.

Ward exited his wrecked vehicle and moved down the track, gesturing as if he were upset at Stewart, eyewitnesses stated in court documents.

Spectator, driver statements

“I saw Ward climb out of his vehicle. He appeared upset and was pointing down the track towards Tony Stewart’s car,” said race spectator Joseph P. Wesley of Webster, New York, in his June 18, 2015, deposition, provided by the Wards.

“I could see Kevin coming out of his car with his hands in the air directed in the direction of Tony, who was right in front of me. Obviously not happy with him,” said Jessica Zemken-Friesen of Sprakers, New York, another driver in the race and a former girlfriend of Stewart’s, in her Aug. 8, 2016, deposition, also provided by the Wards.

The Wards cite Zemken-Friesen’s testimony in her deposition as support for Stewart’s fault.

“I could see Tony’s left front wheel turn to the right, closer in the direction of where Kevin was up higher onto the track,” she said. “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.”

Wesley’s account of the incident also is used by the Wards as support for Gordon Engineering’s conclusions.

“I watched as Tony Stewart’s vehicle started to drift up the track towards where Kevin Ward Jr. was standing. I heard Tony Stewart’s engine rev up and accelerate as it was headed towards Ward. It appeared to me that Kevin Ward Jr. realized that Tony Stewart’s vehicle was headed straight at him as his feet started to move as if he was trying to figure out which way to move to avoid being hit by Tony Stewart’s vehicle,” Wesley said in his deposition.

Stewart, however, stated in his deposition that he applied the throttle in an effort to drive the car down to the left and get away from Ward.

Ward’s parents also cite a range of incidents for which Stewart was penalized or demonstrated anger in the past as evidence of prior reckless behavior. One example occurred inside a NASCAR trailer with race officials present where Stewart punched fellow racer Kurt Busch, according to Stewart’s deposition.

Ward’s parents content Stewart was volatile again the night of their son’s death.

“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 state in their response to Stewart’s motion to dismiss claims.

Stewart’s contention

The claims by Ward’s parents and Gordon Engineering’s conclusions from the analysis of the fatal accident contradict Stewart’s claims and those of the forensic engineering firm he hired, Scientific Expert Analysis of Columbus, Ohio. That firm contends that:

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

Stewart did not drive toward Ward

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

Ward increased his risk of harm by exiting his vehicle

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

S-E-A’s analysis concluded that Stewart had a maximum of 1.4 seconds to react from the time driver Charles Hebing passed Ward to the time Stewart’s car reached Ward.

The analysis concluded Ward, wearing a dark racing suit that made him difficult to see, placed himself in harm’s way by walking 28 steps down the track toward Stewart’s car.

Stewart’s motion cited testimony from Brian Ennis, a flagger on the backstretch of the racetrack the night of the incident, as support.

“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 also stated that the fact that Stewart’s right rear tire struck Ward and not the right front tire is evidence that Stewart was trying to move down the track, to the left, in an avoidance manner.

The Wards contend that Stewart maneuvered toward Ward in an attempt to throw mud on their son and humiliate him — something Stewart denies.

“You can’t throw mud on somebody when you haven’t got to them, the mud from the tire wheel behind you. So you can’t throw mud forward; it would throw it backwards, and there wasn’t any mud to throw in the first place,” Stewart said in his deposition, made Dec. 8 in Indianapolis.

The Wards also claim in the lawsuit that the documents Stewart signed with Empire Super Sprints and Canandaigua Motorsports Park do not waive him of liability, and further state that it’s unclear whether Stewart ever paid the licensing fee required to race in the Empire Super Sprints event the night of the accident.

If Stewart is found 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 Friday to complete a mandatory mediation process.

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

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Kirk Johannesen is assistant managing editor of The Republic. He can be reached at johannesen@therepublic.com or (812) 379-5639.