Wrongful Death Suit Goes To Trial In May

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HiddenHollow
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Wrongful Death Suit Goes To Trial In May

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By BRIAN KELLY
JOHNSON NEWSPAPERS
PUBLISHED: THURSDAY, DECEMBER 28, 2017 AT 1:30 AM


PORT LEYDEN — A May 7 trial date has been set in the federal court case of a Port Leyden family suing retired NASCAR driver Tony Stewart over claims that Mr. Stewart acted recklessly when his vehicle struck and killed their son during an August 2014 race.

U.S. District Court Judge David N. Hurd, Utica, scheduled the trial Dec. 13 after denying Mr. Stewart’s motion to have significant portions of the case dismissed.

Kevin A. Ward Sr. and Pamela Ward are suing Mr. Stewart, claiming, among other things, that he acted recklessly when he struck and killed Kevin Ward during an Aug. 9, 2014, race at Canandaigua Motorsports Park in Ontario County. Kevin Stewart Jr. had exited his vehicle under a yellow caution flag and appeared to be yelling in the direction of Mr. Stewart’s car moments before he was struck.

Mr. Stewart had filed a motion for summary judgment contending that liability releases he and Kevin Ward Jr. had signed insulated him from the Wards’ claims of negligence. It remains unclear whether Mr. Stewart signed his release prior to the race or after the fatal accident, although Judge Hurd did not take that discrepancy into account in rendering his decision, instead finding that the releases were unenforceable for other reasons.

Mr. Stewart also contended that injury or death resulting from a collision with another driver is an inherent risk of auto racing, so this assumption of risk should negate any claims of negligence on his part.

Judge Hurd determined, citing case law, that the application of the doctrine of assumption of risk is generally a question of fact to be resolved by a jury.

Judge Hurd wrote in his decision that “there are genuine factual disputes over whether, and to what extent, (Mr. Stewart’s) conduct during the caution period of the race may have unreasonably increased the risk that Ward Jr. assumed.”

The judge had earlier cited a deposition provided by another driver in the race, Jessica Zemken-Friesen, in which she said she observed Mr. Stewart turn the front wheels of his car to the right and “hit the throttle” as he approached Kevin Ward Jr.’s position on the track prior to the collision.

Judge Hurd wrote that Mr. Stewart had stated in a deposition that his maneuver was not malicious, but rather a “last-ditch attempt to avoid disaster in the split second that he realized a person was standing in his path on the racetrack.”

The judge determined that, owing to the dispute of the facts, it should be left to a jury to decide whether Kevin Ward Jr. assumed an unnecessary risk by walking onto the track while the race was under “caution,” or whether Mr. Stewart responded unreasonably to Kevin Ward’s presence on the track.

The May 7 trial will take place in Utica. Several previous discussions to settle the case without need of a trial have been unsuccessful.

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Re: Wrongful Death Suit Goes To Trial In May

Post by alenigma »

When the jury is seated, I wonder how many of them could actually be peers of Tony. They will most likely be people that have attended one race but never as a participant. I wish him luck although I think his lawyers can present a strong case that the Ward kid was stoned.
Let the Next Generation Emerge! :s_bomb
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