Grief makes you do—and say—things you might not otherwise. So do lawyers. Shortly after an Ontario County, New York, grand jury declined on Tuesday to charge Tony Stewart in the death of Kevin Ward, Jr., the 20-year-old sprint-car driver tragically killed when he walked into the path of Stewart’s car on August 9, the Ward family issued this statement:
“Our son got out of his car during caution while the race was suspended. All the other vehicles were reducing speed and not accelerating except for Stewart who intentionally tried to intimidate Kevin by accelerating and sliding his car towards him causing this tragedy.
“The focus should be on Mr. Stewart and not my son. This matter is not at rest and we will pursue all remedies in fairness to Kevin.”
With criminal charges having now been ruled out, this can only be interpreted as an announcement of intent to file a wrongful-death civil lawsuit against Tony Stewart.
It’s indisputable that an upset Ward climbed from his disabled car after he hit the wall of the track in Canandaigua, New York, where he and Stewart were competing in an Empire Super Sprint series race. Stewart’s car had slipped high in the corner, pinching Ward into the wall.
An obviously angry Ward stalked toward Stewart’s car, still traveling at perhaps 40 mph under the caution flag, and Stewart’s right rear tire hit Ward. In Ontario County, a grand jury of 23, presented with the evidence, voted in majority to “no bill” Stewart, meaning they found insufficient evidence to indict him. All of this was included in District Attorney Michael Tantillo’s press conference on Tuesday, and none of it was unexpected.
This was, though: Tantillo said that a toxicology report on Ward “indicated [that] at the time of operation, he was under the influence of marijuana” and that “the levels that were determined were enough to impair judgment.”
Perhaps this does not fully explain why a young driver not previously known as a hothead would climb from his car and confront another driver, at speed, over a comparatively minor accident—it appears Ward could have changed his flat right rear tire and continued, and some experienced dirt-track drivers have viewed the now-infamous video and suggested Ward should have backed off, turned low, and driven back under Stewart’s car. But rather than the need to explain why a driver would climb out of his car, the question is now why a driver would climb into a 700-hp dirt-track sprint car under the influence of marijuana. They’re dangerous race cars, a point driven home by the death today of a sprint-car driver during practice for a race in Wisconsin.
Exactly how the Ward family and their attorneys plan to make their case is unclear. Numerous tracks and sanctioning bodies, including NASCAR, quickly enacted rules prohibiting a driver from leaving a disabled car on a still-active track—except, of course, in an emergency, such as a fire—until safety crews have arrived and taken control. Thus it would be difficult to suggest climbing from a car and walking toward a moving race vehicle, while not specifically prohibited by the track rules at the time, is an acceptable idea.
The statement suggests “all the other vehicles” were able to miss Ward, Jr., but the video shows that only one had to miss him, and Ward wasn’t working his way into the path of that particular car. And to suggest that Stewart “was accelerating and sliding his car” toward Ward would seem to meet the standard of at least negligent homicide, and the grand jury evidently did not find enough evidence that Stewart had potentially committed such a crime.
To many, it seems that still-grieving parents are unwilling to accept that their son essentially caused his own death. Or that there’s an attorney involved well aware that Stewart has pocketed well over $100 million in NASCAR race winnings alone and that he holds multiple other assets.
New York is a “Pure Comparative Fault” state, meaning that a plaintiff’s “damages will be reduced by their own liability, but not barred completely.” Which is to say that even if a judge or jury finds Kevin Ward, Jr., 95 percent liable for his own death, they could still find Stewart five percent liable.