Whether Tony Stewart had enough time to react to seeing Kevin Ward Jr. on the racetrack and whether he tried to scare the 20-year-old driver could be the key issues if a wrongful death lawsuit filed by Ward's parents gets to trial.
Stewart filed a motion Tuesday asking a federal judge to dismiss many of the claims brought by Ward's parents. As part of the more than 300 pages of documents filed, depositions show the sides with opposing views on Stewart's actions and his motivations.
Ward was killed when Stewart's car struck him during the Aug. 9, 2014, Empire Super Sprints race at Canandaigua (New York) Motorsports Park. The three-time NASCAR Cup champion was not charged, and Ward's toxicology report shows he had marijuana in his system when he got out of his car and approached Stewart's car on foot.
Only parts of depositions were filed as exhibits to the motion. Stewart, in his deposition, stated he didn't know who it was on the track.
"It was a split second from the time that I saw a person until I got to the person. ... I attempted to change direction," he said.
The Ward family believes Stewart tried to scare Ward, who apparently was angry after wrecking while battling Stewart for position.
"In my opinion he said, 'There is Kevin Ward, the little whatever, I'm going to scare him a little bit,'" Ward's father, Kevin, said in a deposition. "[He] went up -- intentionally wanted to scare him, throw dirt at him, whatever by hitting the throttle and he just totally totally misjudged it."
Both of Ward's parents mentioned that their son was a friend of Stewart's ex-girlfriend, Jessica Zemken, who also was competing in the race.
"Jessica was right behind him and Kevin was right in front of him and that would be a good opportunity to show them both up," Pamela Ward said in her deposition.
A crash reconstruction report by Scientific Expert Analysis, done for Stewart, stated that Stewart had at most 1.4 seconds to react to seeing Ward on the track, and that "Stewart simply did not have enough time to react to Mr. Ward's unpredictable actions and successfully avoid hitting him."
Ward was hit by Stewart's right rear tire. Stewart's car was going approximately 40-42 mph at the time and his experts say he did not swerve to hit Ward.
"Had Mr. Stewart maneuvered his car to go up track, Mr. Ward would have been contacted by the front right wheel or front of the right rear tire guard," according to the SEA report.
The Ontario County Sheriff's Office report on Ward's death, public now for the first time, stated that Stewart was distraught after the accident. According to the officer's report: "He saw Ward running down the racetrack pointing at the #45 car and nearly stepping in front of that car. Stewart then told me that he lost sight of Ward for a moment as he continued through the turn. Then he saw Ward pointing at his car and Ward stepped in front of Stewart's car. Stewart attempted to swerve, then Stewart said he felt the right rear tire of his car hit Ward."
The backstretch corner worker, Brian Ennis, who was 50-75 feet from the incident, told investigators in a signed statement after the accident that "Tony tried to avoid him but Kevin ran into the side of his car. ... I don't know if Kevin couldn't stop because of momentum but he just didn't stop, he just walked right into the car; at that moment the thought went through my mind that I just watched somebody commit suicide."
Ennis, in his deposition, said even if Ward had tried to stop, he might not have been able to stop quickly on the dirt surface while wearing racing shoes.
"The hands were coming up as though he was trying to grab the wing," Ennis said in his deposition. "I'm not saying that's what he was doing. That's what it appeared to me. I'm not sure if it jerked to the left to get away from Kevin or not. I seem to remember the car moving, but I'm not sure if it did it before or after impact."
The crash reconstruction report done for Stewart said marks on Stewart's wing (which sits above the car) show Ward had contact with it.
Chuck Hebing, who was driving the No. 45 car in front of Stewart under caution, said he didn't think Stewart would be able to avoid Ward.
"I jerked the car to the left and stepped on the gas to turn the car quicker to get away from him and then I said to myself that the next guy is not going to have time to get around him and is going to hit him and that is what happened," Hebing said in his deposition.
The Stewart motion filed Tuesday asks for claims of negligence, wrongful death, and terror pain and suffering prior to death to be dismissed. The motion is based on waivers Ward signed to compete in the event and that his actions, combined with the fact he had marijuana in his system, prove he had no fear and suffered no pain prior to death.
Ward suffered life-ending injuries to his chest and heart, a severed spine and a broken leg, according to the SEA report. He never was breathing and never regained consciousness, according to the depositions of medical personnel at the track.
Mediation in the case is set for April 18, and a hearing on Stewart's motion is set for April 28. No trial date has been set in the case, which is being heard in U.S. District Court in Utica, New York.