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Kevin Ward Jr. family lawsuit vs. Tony Stewart held in federal court Friday

UTICA, N.Y. -- The question of whether the inherent risk Kevin Ward Jr. took in competing in a sprint car race included that of being hit by Tony Stewart's car, while Ward walked on the track, was a central issue during an hour-long hearing in federal court Friday.

The federal lawsuit, in which the Ward family contends 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 from any criminal charges, but Ward's parents say Stewart was trying to intimidate their 20-year-old son by swerving at him as he had walked onto the track after a crash to express his displeasure with the three-time NASCAR Cup champion.

Stewart has said 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.

Ward's parents as well as seven people wearing clothes featuring Ward's car and number sat on one side of the courtroom while Stewart sat on the opposite side.

"We all wish things ended differently. ... It was a tragic accident and nothing more," Stewart's attorney Angela Krahulik said in the courtroom.

The hearing Friday was originally scheduled in April but had been postponed three times for various reasons. District Judge David Hurd said he would rule in a few weeks "at best" and would be writing a lengthy decision.

Stewart has asked the judge to throw out three of the four claims against him before the case proceeds to trial. He argued in his filings 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 race car drivers know the inherent risk of the activity.

As far as a claim for Ward's pain and suffering and pre-impact terror, Stewart argued that the assertion is meritless because Ward died instantly and because his actions, including toxicology results that indicated Ward had consumed marijuana within five hours of the event, showed he had no fear preceding his death.

If Stewart is successful in his motion, the only claim a jury would decide would be for intentional/reckless conduct, something the judge cannot determine on his own.

One of the main issues throughout the hearing was whether Ward was a professional driver or raced more recreationally, which could determine which statutes apply and whether the releases are enforceable.

The other issue was that of inherent risk. Because emergency personnel are on the track and drivers often get out of their cars after a crash, Ward's attorney Ben Major argued, a driver should not expect to get hit by another car.

"All drivers know to expect pedestrians on the track [under caution]," Major told the court, adding that this is more of an issue for a jury to decide in trial rather than a judge in the earlier summary judgment phase.

That argument of whether these issues should go to a jury extended to whether Ward suffered any pre-impact terror or pain and suffering.

The judge questioned Krahulik on why he should decide whether Ward suffered pain and pre-impact terror because a jury could watch the video and make that determination themselves. Krahulik said the evidence showed he had no terror and that the death certificate said Ward died within seconds.

Crash analyses filed by both parties show different views of the accident. The Wards' crash reconstruction analysis indicated that 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.

The Ward family also argues that Ward suffered pain and suffering because the first injury he suffered was a broken leg moments before suffering a torn aorta and a transected spinal cord.

"He did know at the time he was going to get hit ... [and] he was feeling pain before he passed away," Major said.

Hurd's ruling could affect the direction of settlement negotiations, which have been ongoing for several months.

Stewart, and not his insurance company, might be personally responsible for any settlement. 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 whether there was any settlement or whether Stewart had any additional insurance policies that would cover the Ward family claims.

Attorneys declined comment as they left the courthouse.