Kevin Ward Jr.'s family: Couldn't afford costly battle

UTICA, N.Y. -- The mother of Kevin Ward Jr. told a U.S. District Court judge that the family does not have the financial means to pay for a trial, so they had no choice but to settle a wrongful death lawsuit against Tony Stewart.

Stewart, Kevin Ward Sr., and Pamela Ward appeared before U.S. District Court Judge David Hurd during a 15-minute hearing Thursday where they confirmed they had settled the case. They did not have to release details of the settlement as far as how much money Stewart paid the Ward family, but the judge said he would not dismiss the lawsuit until a copy of the settlement is filed under seal with the court (which was done Thursday) and any issues as far as whether there are any approvals necessary in New York courts that handle estates are resolved.

The 20-year-old Ward died Aug. 9, 2014 in an Empire Super Sprints race at Canandaigua (New York) Motorsports Park when after crashing, he got out of his car as the other drivers drove under caution, walked on the dirt surface and gestured at Stewart's car just before it struck and killed him.

"Our whole goal was to hold Tony Stewart accountable," Pamela Ward told the judge. "I wanted this case to go to trial. ... That was our ultimate goal to get justice for my son."

Stewart, who had asked for the court's permission to attend by teleconference but was denied that request, gave one-word answers when the judge asked if he had signed the agreement, knew that the agreement would end the litigation and if he didn't have anything else to tell the court.

The only stipulation in the agreement that was revealed during the hearing is that both sides are free to comment about what happened. As she walked with her husband when leaving the court, Pamela Ward said she had nothing further to say at this time. Stewart also declined comment as he left.

Stewart was not criminally charged in the death of Ward, who had enough marijuana in his system to impair judgment, according to the district attorney. Ward's parents sued the three-time NASCAR Cup Series champion, claiming he recklessly drove his sprint car into their son while attempting to intimidate him.

By settling, both sides avoided a potentially costly trial, which would have lasted more than a week and was scheduled to begin May 7. The Ward family never specified an amount of damages it sought in court, but a potential seven-figure judgment was possible if the jury determined that Stewart did not handle his race car as expected and Ward, despite having marijuana in his system, had suffered after being hit or had a fear of pending death in the moments before being killed.

Both sides had filed evidence and depositions to back up their cases.

Stewart's expert report indicated he didn't have enough time to consciously decide to move his car toward Ward, who was wearing a black uniform. Stewart, in his deposition last year, said he throttled the car in an attempt to miss Ward.

"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 expert determined Stewart drove his car toward Ward while other drivers did not and 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.

Ward was hit by Stewart's right rear tire. He suffered life-ending injuries to his chest and heart, a severed spine and a broken leg, according to the Stewart report. He never regained consciousness, according to Stewart's expert, although the Ward expert said that was not conclusive. Stewart's car was going approximately 40-42 mph at the time it hit Ward.

One of the theories is that Ward attempted to hit or grab the wing above Stewart's car, but it is not clear that if he did so, whether it was in anger or a reactionary move to not get struck.

"[Ward's] hands were coming up as though he was trying to grab the wing," backstretch corner worker, Brian Ennis, who was 50-75 feet from the tragedy, 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 [Stewart's car] 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."

Chuck Hebing, who was driving in front of Stewart under caution, said in a deposition he needed to react quickly 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.

Both of Ward's parents in depositions and filings mentioned that their son was a friend of Stewart's ex-girlfriend, Jessica Zemken, who also was competing in the race and that Stewart, who has a history of being temperamental, had a reason to drive toward their son.

"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," Ward Jr.'s mother said in her deposition.

Zemken was among the cars right behind Stewart when the accident happened and likely would have been a witness at the trial.

"I could see Tony's left front wheel turn to the right, closer in the direction of where Kevin was up higher onto the racetrack. ... I could see Kevin still there in front of his car with his hands in the air," she said in her deposition. "And I saw the rear of the car stand up and the dust come off the rear tires as Tony hit the throttle.

"When he hit the throttle, the rear of the car came around and the front end of the car went to the left, the car got sideways and he struck Kevin."

Stewart has to pay any settlement costs himself. His insurance policy didn't specify Empire Super Sprints (a Northeast sprint car series) among the series it covered, and Stewart lost a court battle to try to get Axis Insurance Company to cover the costs.

Stewart also had lost several preliminary rulings in the wrongful death case, including one where he argued that waivers signed by Ward and his father (as car owner) forbid the family for suing for wrongful death. He also argued that because Ward never regained consciousness, he did not suffer; and by walking on the track under caution, he had no fear of pending death.

The judge declined to throw out those claims. While waivers typically are enforceable, the judge cited a New York public policy law where if people pay to use a public recreational facility, liability waivers are not enforceable. He ruled that both Stewart and Ward paid entry fees, and because Ward did not make a living racing cars, this was considered a recreational activity. The judge ruled a jury could watch video and determine whether Ward had fear and/or suffered.

Stewart missed three NASCAR Cup races after the tragedy and did not race a sprint car for more than two years after Ward's death. After his retirement at the end of the 2016 NASCAR Cup season, Stewart has returned to sprint car racing.