• signed waivers often meaningless - Stewart/Ward

    From ncrdbl1@21:1/5 to All on Mon Apr 9 12:53:29 2018
    On Saturday, April 7, 2018 at 10:08:02 AM UTC-5, a425couple wrote:
    Tony Stewart, Kevin Ward Jr.'s family settle wrongful-death suit
    Apr 2, 2018
    Bob Pockrass

    Five weeks before trial, Tony Stewart and the parents of Kevin Ward Jr.
    have agreed to settle the wrongful-death lawsuit against the three-time NASCAR Cup champion.

    U.S. District Court Judge David Hurd set a settlement hearing in Utica,
    New York, for April 12 to put the terms of the pending settlement in the public record. A settlement would end the civil lawsuit filed about a
    year after Ward's death at age 20 on Aug. 9, 2014, in an Empire Super
    Sprints race at Canandaigua (N.Y.) Motorsports Park.

    The trial was scheduled to begin May 7, and a settlement keeps both
    sides from having to testify and watch video of the accident. It also
    keeps a jury from having to determine whether Stewart was reckless in an accident where Ward had marijuana in his system. A grand jury didn't
    indict Stewart, clearing him of any criminal charges, but Ward's parents claim that Stewart tried to intimidate their son by swerving at Ward,
    who had walked onto the track after a crash to express his displeasure
    with Stewart.

    Court filings over the past two years detailed different views and
    expert analysis of the tragedy. Stewart, in a deposition filed with the
    court last year, 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.

    Ward apparently was angry after he wrecked 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," Kevin Ward Sr. said in his 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."

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

    The Wards' expert 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.

    "It is apparent Mr. Stewart intentionally caused his vehicle to move
    toward Mr. Ward by aggressively adding throttle input while counter
    steering through the turn," the Wards' expert report states. "Mr.
    Stewart's [car's] speed, acceleration, heading angle and vehicle path
    towards Mr. Ward was different than the six cars that passed Mr. Ward's location without incident."

    Stewart's crash reconstruction expert 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 and suffered life-ending
    injuries to his chest and heart, a severed spine and a broken leg,
    according to the report by Stewart's experts. He never regained consciousness, according to Stewart's experts, although the Wards'
    experts said that was not conclusive. 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 report by Stewart's experts.

    Ward's parents challenged evidence that their son was impaired by
    marijuana at the time of the accident. 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 were no witnesses to how Ward
    got the marijuana in his system.

    Ward's family never filed with the court how much in damages it sought.
    In New York, parents cannot get damages for their own pain and suffering
    but can be compensated for what they could have relied on as far as
    financial support from their son as well as if their son suffered pain
    and fear of impending death in those final moments. In December, Hurd declined Stewart's request to throw out three of the four claims against
    him because of liability waivers and evidence that Ward did not suffer.

    Stewart argued that claims for wrongful death and gross negligence
    should be dismissed because a race car driver knows the inherent risk of walking on a racetrack while under caution and Ward Jr. and his father
    (as the car owner) signed waivers that prohibit such legal claims. New
    York state public policy law says liability waivers are unenforceable
    when signed by people who pay a fee for use of recreational facilities
    such as pools or gymnasium. Hurd ruled in December that because both
    Stewart and Ward paid a fee (and Ward did not make a living racing
    cars), the race fell under that law and the waivers were unenforceable.

    Hurd ruled that a jury could decide if a race car driver knows the
    inherent risk of walking on a racetrack under caution. He also ruled
    that video evidence would allow a jury to make a determination on
    whether Ward suffered or had fear before his death.

    A trial potentially could have focused on Stewart's temperamental past.

    "This case exemplifies what happens when a superstar race car driver
    with a documented history of violence on and around the track races
    against competitive amateurs who refuse to be bullied," the Wards'
    attorney wrote in one filing. "In this case, Defendant Tony Stewart
    plays the part of the volatile superstar.

    "Although Stewart is a highly skilled driver who easily could have
    avoided killing Ward Jr., he also has a storied history of violence both
    on and off of the track."

    Stewart, and not his insurance company, may be responsible for any
    payments of the settlement. Hurd ruled in 2016 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 Stewart had any additional insurance policies
    that would cover the Ward family's claims.

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


    First off waivers are invalid when it comes to acts of negligence.

    Second Stewart accident recreation team worked under the premise that a Sprint Car reacts in the same way as a Street car. They do not.

    Third with Stewart's LOOOOONG history anger management issues he would foolish to take this case to a jury.

    No one knows exactly what happened in the minds of the two drivers involved. But by looking at the video it is my opinion that he did gun his engine in an attempt to intimidate the kid and things went bad.

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