All aspects of a wrongful death lawsuit filed against former NASCAR driver Tony Stewart can proceed after a federal judge denied the racing legend’s request to have multiple claims dismissed.

Judge David N. Hurd made his ruling Tuesday in a 28-page court document filed with the Northern District of New York. A jury trial is scheduled for 9:30 a.m. May 7 in Utica, New York.

Stewart, now 46, of Columbus, and Ward competed in an Empire Super Sprints race Aug. 9, 2014, at Canandaigua (New York) Motorsports Park, where Stewart’s car struck and killed the 20-year-old Ward.

The following month, a 23-person grand jury in Ontario County, New York, declined to indict Stewart, a three-time NASCAR champion, on either of two charges: manslaughter in the second degree and criminally negligent homicide.

Kevin Ward Sr. and Pam Ward filed the lawsuit Aug. 4, 2015, and blame Stewart for the death of their son.

The parents claim that Stewart’s intent to drive toward and scare their son went awry and that he is liable. Stewart claims that Ward, who had marijuana in his system, created a dangerous situation that Stewart couldn’t avoid when Ward exited his car and walked toward Stewart’s car.

Stewart asked that claims of wrongful death and negligence, conscious pain and suffering, and terror be dismissed in the lawsuit filed by Ward’s parents. If Stewart’s request had been granted, only an intentional/reckless conduct claim would have remained.

Waiver validity

Hurd listened to oral arguments Oct. 27 from attorneys for both sides regarding Stewart’s motion to dismiss. The hearing focused on the inherent risk Ward took by competing in the race and whether waivers signed by Ward and Stewart before the race prevented Ward’s family from suing.

Stewart attorney Angela Krahulik argued that the waivers protect him from a lawsuit, reported.

Ward attorney Ben Major argued that evidence shows Ward suffered and feared for his life in the split seconds before or after the crash, a point Krahulik disputed, reported.

The judge said in the court document that the signed track releases show inconsistencies and cast doubt on their validity, but more importantly that they are nullified by New York’s General Obligation Law. Enacted in 1976, it acts as a consumer protection law. It states that patrons of recreational facilities are commonly unaware of the existence of exculpatory clauses in admission tickets or membership applications, and don’t understand the legal consequences.

While Stewart contends that drivers assume an inherent risk of injury or death when racing, Hurd wrote that such reasoning is based on commonly appreciated risks, and that dispute over whether Stewart’s conduct on the track increased the risk is a valid argument by the Wards.

“Even assuming Ward Jr.’s decision to walk onto the track’s driving area while the race was under caution heightened his own risk of injury, it does not follow that his conduct gave other participants in the race, such as Stewart, carte blanche to act unreasonably in response,” Hurd wrote.

With regard to pre-impact terror Ward might have suffered, Hurd wrote that the best approach is to embrace the principle that the best course of action is to let a jury resolve the competing versions of events.

Krahulik said she couldn’t comment on the judge’s ruling.

“We’re not sure exactly what shape things will take,” Krahulik said.

She said the judge’s ruling cannot be immediately appealed without his consent, although an appeal could be filed at a later stage in the legal process.

“We’re considering whether to ask for that,” Krahulik said of the judge’s permission to appeal.

Past developments

Both parties also had attempted mediation, but sessions on April 18 and June 6 did not end with resolution, court records state.

A June 23 settlement conference with both parties failed to resolve the case, according to court documents.

Attorneys for Stewart and the Wards also have filed motions to dismiss expert testimony from the other side.

Ward’s parents are asking the court to exclude the testimony of Dr. Robert Furbee, a medical toxicology consultant hired by Stewart to analyze Ward’s autopsy and toxicology reports and provide an opinion, “because it will not help the jury decide any relevant issue in this case and because it is unreliable,” according to court records.

The Wards claim in the Nov. 1 motion that Furbee cannot link their son’s alleged impairment to a relevant act or omission in the case, so his opinions are irrelevant. They claim the risks of unfair prejudice or misleading and confusing the jury outweigh the value of Furbee’s opinions.

Furbee concluded that the amount of tetrahydrocannabinol (THC) — the primary mind-altering ingredient in marijuana — that was found in Ward’s blood system would have impaired Ward’s judgment, motor and cognitive skills at the time of his death, according to court documents.

Meanwhile, Stewart is asking that the testimony of Ward experts Martin E. Gordon and Richard M. Ziernicki, both of Gordon Engineering, be excluded because their “analysis and opinions do not meet the requirements of Federal Rule of Evidence 702,” according to court documents.

Rule 702 states that a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify if:

  • Their specialized knowledge will help the understanding of evidence or determine a fact
  • The testimony is based on sufficient facts or data
  • The testimony is the product of reliable principles and methods
  • The expert has reliably applied the principles and methods to the facts of the case

Gordon and Ziernicki performed a forensic analysis of the accident and concluded that:

  • 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

According to court documents, Stewart argues that Gordon’s and Ziernicki’s opinions are speculative and not based on scientific or specialized knowledge, nor based in fact, and should be excluded.

Hurd has received all filings from attorneys regarding the motions to dismiss expert testimony, but has not yet made a ruling, according to court documents.

What's next

The wrongful death lawsuit filed by the parents of Kevin Ward Jr. against former NASCAR driver Tony Stewart is set for a jury trial at 9:30 a.m. May 7 in Utica, New York.

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