10/24/2014

Wrongful Death?

Criminal charges aside, NASCAR’s Tony Stewart faces questions of liability in Kevin Ward Jr.’s death.

By Christopher Fusco

Stock car racing is certainly a dangerous sport. In NASCAR, race cars routinely exceed 200 mph and crash into each other with great regularity. Although there have been major advances in race car safety since the tragic death of Dale Earnhardt at Daytona International Speedway in 2001, there is nothing to protect a driver who exits his car from an actual impact with a speeding vehicle on the track.

While I am certain it can be debated, I always thought Tony Stewart was the best driver on the stock car racing circuit. Even though I root for Dale’s son, if there is one driver who can come back from a lap down to win, it is Stewart. There is no question that Stewart races hard and with purpose. He is no stranger to confrontations and actual fistfights with other drivers. There are plenty of YouTube videos of Stewart fighting his fellow competitors and even striking (with his car) a member of his own pit crew who was blocking his exit from pit row.

In 2008, Rolling Stone referred to Stewart as “NASCAR’s nastiest driver,” and went on to quote a NASCAR official who remarked that “Tony will at times do or say things that will make our skin crawl.”

Reports indicate that Stewart can earn upwards of $20 million per year due to his racing skill. His racing company, Stewart-Haas Racing, may be worth more than $100 million, not including ongoing endorsements. Due to his prowess as a driver, Stewart has built a financial empire.

Kevin Ward Jr. had not yet tasted racing success on the scale of NASCAR’s big-name drivers. He was still a 20-year-old unknown dirt-track driver. He was honing his skills on minor league tracks like the Canandaigua Motorsports Park in the upstate county of Ontario, N.Y. While this dirt track is not likely on the radar of most NASCAR drivers, Stewart, in his zeal to compete, had entered the race since he was about to participate in the nearby Watkins Glen Sprint Cup event.

What happened on that remote dirt track on an August night became the subject of a criminal investigation. We know that no matter what the forum, Stewart only races one way—hard. During the race, Stewart and Ward were jockeying for position when Stewart clipped Ward’s car, causing Ward to spin out and hit the wall. Some speculate that Stewart likely got tired of the young driver and put him in the wall to end his night. Yet the decisions and actions that followed ended Ward’s life.

According to media reports, Ward—incensed that Stewart wrecked him out of the race—got out of his car and started to walk across the active track to confront Stewart. As Stewart approached Ward, Stewart hit him with his sprint car, and Ward was killed. On Sept. 24, 2014, a grand jury decided that Stewart would not face criminal charges. Whether Stewart is eventually sued for wrongful death is another question, but it seems like the most realistic outcome of this tragedy.

Soon after the accident, Ontario County Sheriff Phillip Povero stated that there are “no facts in hand that would substantiate criminal intent from any party.” This statement seemed somewhat premature; at that point there had not been a complete accident reconstruction or police investigation. Based on the video evidence, Ward walked across the track and got close to Stewart’s car. Then, Stewart may have engaged the throttle, causing the car’s back wheels to move towards Ward and strike him.

The Sporting News quoted a race car driver and spectator at the race, Tyler Graves, as saying, “When Tony got close to [Ward], he hit the throttle. When you hit the throttle on a sprint car, the car sets sideways. It set sideways, the right rear tire hit Kevin, Kevin was sucked underneath and was stuck under it for a second or two then it threw him about 50 yards.”

Whether there was any criminal intent on the part of Stewart seems to be resolved with the grand jury decision. Stewart supporters say he may have engaged the throttle to accelerate away from Ward, who never should have exited his vehicle in the first place. There is no question that if Ward remained in his car, this incident never happens. However, Stewart’s history of conflict and his legendary temper also are hard to ignore as possible contributing factors in Ward’s death.

As a former Brooklyn (N.Y.) assistant district attorney, I can relate that a decision to proceed on a criminal charge against Stewart would have required a piece (or pieces) of extremely inculpating, compelling evidence such as almost conclusive physical evidence or an admission of guilt by Stewart. Even though New York has a criminal negligence statute, proof beyond a reasonable doubt in a heated race car accident—one in which Ward got out of his vehicle—would have been an enormous legal undertaking.

In New York, criminally negligent homicide involves conduct that is reckless and careless and causes death. There is no “intent” required for a conviction of this low-level felony. Ironically, the concept of criminally negligent homicide is mostly used for DWI accidents that cause the death of an innocent person.

But even the least cynical among us know that the concept of negligence in this incident is not going away. Tony Stewart, his company, and his presumed insurer is a ripe target for a wrongful death lawsuit. The timing of the lawsuit and a potential quick settlement will have to be watched by legal observers.

Under New York law, an action for wrongful death must be commenced within two years of the death (Aug. 9, 2016). Pursuant to the New York Estates, Powers, and Trust Law (EPTL), Ward’s estate can commence an action against Stewart for a wrongful act, neglect, or default that causes the death. Without an exhaustive primer on damages, the categories of relief can include a recovery for conscious pain and suffering of the deceased and for loss of future earnings.

The timing of a wrongful death lawsuit, under the EPTL, will be the first question. Obviously, a criminal investigation that had resulted in a criminal conviction could have been devastating to Stewart’s civil liability. Yet if a wrongful death action is filed quickly, Stewart probably would have to invoke his Fifth Amendment protections during a deposition, which could lead to negative inferences by a jury, despite any court instructions to the contrary.

Any civil case will have to overcome Ward’s decision to leave his car and approach Stewart’s speeding vehicle. The prospect plaintiff will claim that many other cars avoided Ward with no issue and only Stewart—a champion driver—failed to do so. In addition, it will be alleged that if Stewart hit the throttle, it was because he knew his car would skid in Ward’s direction and strike him. With Stewart’s penchant for driving hard, the claim could be that Stewart was either trying to scare Ward or throw dirt in his direction, and these negligent acts caused Ward’s wrongful death.

Now that we know there won’t be a criminal prosecution, Stewart will have a major incentive to settle any wrongful death claims and move on from this tragedy. Stewart will gain little from protracted litigation in which the grieving plaintiffs are seeking millions of dollars in damages. The interesting question is, how will Stewart’s insurers respond to a pre-litigation settlement if policies are triggered?

While early settlements usually are favorable for all parties and insurers, a resolution can be difficult when the plaintiff bears the lion’s share of liability, even in a pure comparative liability state like New York. Even though Stewart has a mercurial personality, a quick settlement of Ward’s potential civil claims could engender good will for Stewart while also protecting his financial empire and critical endorsements.

Since Stewart, as the insured, would have extremely unique incentives to settle with Ward’s estate, he may look to negotiate a fixed sum for his insurers to pay while he funds the remainder of the settlement. From an insurer’s standpoint, the accident may have many fact-sensitive questions that can only be resolved by discovery and expert analysis. But from Stewart’s perspective, this was a very bad night that needs finality so he can get back to “business as usual.”    



Christopher Fusco is the managing partner of CLM Member Firm Callahan & Fusco LLC. His blog, Sports in the Courts, can be found at www.sportsinthecourtsblog.com. He may also be reached at cfusco@callahanfusco.com.

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