Waivers signed by Kevin Ward Jr. don’t protect Tony Stewart (Update)

Tony Stewart should still be worried

UPDATE The trial in the wrongful death lawsuit against Tony Stewart remains scheduled to begin May 7 over whether Stewart acted recklessly in the Aug. 9, 2014, death of Kevin Ward Jr. in an Empire Super Sprints race.

Judge David Hurd denied Monday a Stewart request to immediately appeal a Hurd ruling that the liability waivers signed by Ward are inapplicable.

Stewart’s legal team argued that an appeals court decision on that issue could facilitate additional settlement talks and the waiver issue was critical to race tracks and series in New York. Hurd ruled Monday that an appeal on all issues after trial is the more practical and economic path. Bob Pockrass/ESPN

12/13/17 Tony Stewart is not protected from claims of wrongful death by waivers that Kevin Ward Jr. signed, a U.S. district judge ruled Tuesday, potentially leaving it up to a jury to decide whether Stewart should be held liable for the 20-year-old's death writes Bob Pockrass of ESPN.

The federal lawsuit, in which the Ward family asserts that Stewart was negligent and reckless in how he handled his sprint car, was filed in August 2015, about a year after the Aug. 9, 2014, incident in an Empire Super Sprints race at Canandaigua (New York) Motorsports Park.

A grand jury didn't indict Stewart, clearing him of any criminal charges, but the parents say Stewart was trying to intimidate their son by swerving at Ward, who had walked onto the track after a crash to express his displeasure with the three-time NASCAR Cup champion.

"Today the Court dispensed with all of Tony Stewart's grounds for dismissal … clearing the way for the Wards to present their case to a jury of their peers," Ward attorney Mark Lanier said.

Lanier noted that Judge David Hurd's ruling stated that "there are genuine factual disputes over whether, and to what extent, defendant's conduct during the caution period of the race may have unreasonably increased the risk that Ward Jr. assumed."

Stewart has claimed he did not see Ward until the final moments, that he didn't know who it was on the track and that he hit the throttle as he attempted to swerve away from him.

Stewart had asked Hurd to throw out three of the four claims against him before the case proceeds toward trial (no trial date is set). He argued in his fillings that claims for wrongful death and gross negligence should be dismissed because Ward Jr. and his father (as the car owner) signed waivers that Stewart says prohibit such legal claims and because a race car driver knows the inherent risk of walking onto a racetrack while under caution.

He also asked for the judge to throw out a claim for Ward's pain and suffering and pre-impact terror, arguing there is enough evidence that Ward died instantly and because his actions, including having enough marijuana in his system to be considered impaired, showed he had no fear preceding his death.

Stewart didn't ask the judge to throw out a claim of intentional/reckless conduct because that is a judgment that only a jury can decide.

Hurd's ruling Tuesday could affect the direction of settlement negotiations, which have been ongoing for several months, as the judge decided that all of the claims could go to a jury based on New York law.

Kevin Ward Jr.

New York law states that any liability waiver "between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities … shall be deemed to be void as against public policy and wholly unenforceable."

In his ruling, Hurd determined that the race was "recreational," rather than professional, in nature.

"Simply put, the record establishes that Ward Jr. paid certain fees for the privilege of patronizing a recreational establishment that offered the opportunity to participate in a recreational activity," the judge wrote.

"To be sure, both Ward Jr. and Stewart were experienced participants in that activity, and by all accounts both men spent enormous amounts of time and money in pursuit of their passion. But simply spending time and money on a particular hobby does not transmogrify it into a professional endeavor."

The judge also ruled that a jury must determine whether Ward's claims should be dismissed because he had an "assumption of risk" when walking on the track.

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

In the issue of claims of pre-impact terror and pain and suffering, Hurd theorized during an Oct. 27 hearing that the jury could determine whether Ward suffered before dying or whether he had any pre-impact terror because there is video of the tragedy. In New York, the financial penalties in pre-impact terror cases can run into the millions.

The Ward family also argued that there is enough proof that Ward endured pain and suffering because the first injury he suffered was a broken leg moments before suffering a torn aorta and a transected spinal cord. Stewart says he did not, citing the death certificate that indicated Ward died within seconds.

"Because the parties' disputes about the harm Ward Jr. suffered boils down to two competing characterizations of the whole body of evidence available in this case, Stewart's motion for summary judgment on these items of damages must be denied," the judge wrote.

Crash analysts filed by both parties show different views of the accident. The Wards' crash reconstruction analysis indicated Ward "braced himself for the severe impact and even made a desperate–yet futile–attempt to scramble out of the path" of Stewart's car.

Stewart is challenging the Ward family's accident reconstruction report that he aimed his car toward their son. Steward says the report disregards science. The Ward family is challenging evidence on whether their son was impaired at the time of the accident as they claim that concentrations of THC in the blood near the heart often show a heavier concentration than in other parts of the body and that there are no witnesses to how Ward got the marijuana in his system.

Hurd canceled a hearing scheduled for last Friday on those evidence challenges and said he would rule on the issues from the briefs filed.

Stewart, and not his insurance company, is possibly responsible for the payment of any settlement or damages in the case. Hurd ruled last year that Axis Insurance Company was not responsible for defending Stewart and paying any settlements or judgments because the Empire Super Sprints was not among the series listed as being covered in his policy.

After initially appealing the ruling on the insurance policy, Stewart dropped the appeal. It is unclear if there was any settlement and/or if Stewart had any additional insurance policies that would cover the Ward family claims. Bob Pockrass/ESPN