Where Does the Line of Reasonable Care for Race Car Drivers Fall on a Racetrack

The Hit: An Investigative Documentary

On August 9, 2014, IndyCar and NASCAR legend, Tony Stewart, hit and killed a fellow race car driver, Kevin Ward, Jr. who had exited his car after a wreck at Canandaigua Motorsports Park in New York State. After a short investigation into the facts and circumstances, a grand jury concluded that Tony Stewart would not face criminal charges related to the death of his young and upcoming racing colleague. Although footage shows Stewart’s sprint car veering in the direction of Ward while Ward was moving down the track to confront Stewart for causing a wreck, there simply wasn’t enough evidence, according to the Ontario County District Attorney and a grand jury, to charge Stewart criminally for Ward’s death.

One obvious question remained… could Stewart be held liable in a wrongful death claim in civil court? The question raises many other critical questions: Did Ward “assume the risk” when he walked towards the moving race cars to confront Stewart? Did Tony Stewart maneuver his race car in a careless way perhaps intended to intimidate Ward, but ended up striking him in the process?

A Denver-based accident reconstruction company, Knott Laboratory, LLC, got involved with this incident to gain a better understanding of what happened and figure out if Tony Stewart’s actions are what ultimately led to the death of a fellow driver. The Hit: An Investigative Documentary features Knott Laboratory and their reconstruction of the events to gain a better understanding of this tragedy. What they believe they discovered was that this tragedy would have been completely avoidable if not for Tony Stewart’s actions.

Competitive Juices Will Flow

We will get to witness accounts of the Stewart/Ward incident and racing lingo shortly, but let’s take a trip into the sports world and think about how athletes in their realm of competition face at least some regulation to promote player safety.

American sports such as football, baseball, soccer, and boxing, all have rules that govern player conduct that could be detrimental to the safety of the players. In football, you can’t tackle or hit someone after the play is ruled dead. You also can’t hit a defenseless player in a certain way that is particularly violent, target the head of a player while tackling, or grab a player by the back of their shoulder pads to yank them to the ground (horse-collar tackle). In baseball, a pitcher is not supposed to intentionally hit a batter with the ball. In soccer, you cannot slide at another player’s feet/ankles to tackle them. Boxing requires that fighters return to their corners after the bell ending a round rings and cannot keep swinging.

Each one of the examples listed above has been made rules because they are something that can happen often in those sports. “It’s a part of the game,” some will say. This is true. Adrenaline and emotions can run pretty wild in competition. Sometimes the governing league will look at the incidents that take place and give a player a monetary fine or impose a suspension. Sports can be dangerous, so player safety is something that these leagues take seriously.

The question is, do players who may be injured as a result of any of these rules being broken have recourse in our legal system? According to a case that most first-year law students read in their torts class, Hackbart v. Cincinnati Bengals, Inc. 435 F. Supp. 352 (D. Colo. 1977), there is at least some level of understanding that professional athletes assume a certain amount of risk when they step onto their respective playing fields. Even though Cincinnati Bengals player Charles Clark clearly broke a rule when he intentionally struck Dale Hackbart in the back of his neck after the play was whistled dead, the court held that Hackbart assumed the risk of injury by playing professional football.

That case raised a larger question as well, which is whether playing field action in the business of professional football should become a subject for the business of the courts. The court decided that any governmental involvement in the league would have to be achieved through legislation. This case creates a very serious roadblock for any player who is severely injured (or killed) to seek redress through our legal system. The question in the Steward/Ward case is if the risk involved in automobile racing is the same as football, or if an injured party can be compensated through a civil suit if a driver does not exercise reasonable care.

Legal Standard for Negligence

In the legal world, specifically when it comes to injuries and wrongful death, the idea of “reasonable care” is always an issue when determining liability. The gist of it is this: when a person is injured, maimed, or even killed as a result of another’s actions, it must be shown on some level that an accused person or entity DID NOT practice reasonable care. This is how a judge or jury determines if civilly liable negligence exists.

What is reasonable care? Well, that is a question of fact left for a judge or jury. Colorado’s pattern jury instructions defines reasonable care as “that degree of care which a reasonably careful person would use under the same or similar circumstances.” The idea of “reasonable” can vary immensely depending on who we are asking because it is an objective standard.

Another fact we have to look at is the idea of “foreseeability.” Under Colorado law, an injury is foreseeable “if a reasonably careful person, under the same or similar circumstances, would have anticipated that injury to a person in the plaintiff’s situation might result from the defendant’s conduct.” It does not need to necessarily be the precise injury (or even death) of a plaintiff that is foreseeable. It just needs to be that an injury of any sort can be foreseeable given the circumstances. Any resulting injury, then, could be argued in a negligence case that it was foreseeable given a defendant’s action, inaction, or lack of…you guessed it…reasonable care.

Back to Racing

OK reader, you made it past the boring legal mumbo jumbo and now we get to return to where we started this whole thing: Tony Stewart hitting and killing a fellow racer. Reasonable care and foreseeability became a focal point in the outcome of a criminal investigation but never got explored in the civil arena because the suit was settled outside of trial. I want to reiterate that there were no criminal charges AND a civil suit has already been settled out of court. However, new evidence has been presented publicly in The Hit: An Investigative Documentary by the accident reconstruction company, Knott Labratory, that could have changed the outcome of a New York Grand Jury investigation, and been key in evidencing a foreseeable injury and lack of reasonable care in a civil suit, had it gone the distance and been presented in front of a jury.

Just like the more popular sports listed above, racing also has an enormous set of rules concerning safety because racing is an exceptionally dangerous sport. One of those rules pertains to what every single driver must or must not do when there has been an on-track incident or wreck. When a yellow flag is thrown indicating the occurrence of an incident, drivers must significantly reduce their speed and move to the inside of the track, sometimes referred to as moving “low and slow.” This is to protect the track crew who tend to the wreckage, EMTs that tend to each driver involved, and the drivers themselves who exit their cars.

A simple Google search of “race car driver fights” will lead you to a whole host of videos that will show you how tempers flare in the sport. Even though the yellow caution flag brings specific rules with it, it does not account for the agency of a ticked-off driver who just got put into the wall. A search for the Stewart/Ward incident will bring up a video of a ticked-off Kevin Ward, Jr. looking to confront Tony Stewart who he believed wrecked him. Before Ward is hit, it is not unlike many of the other videos you will see.

Here is where things get a little complicated. Many of the intricacies of the sport of racing are not known to the layperson. However, Tony Stewart had been racing for decades at the time of the incident involving Ward. In a statement after the fact, Stewart admitted to accelerating his car moments before the fatal hit but explained that he was trying to avoid Ward, and the car “kind of got away from him” when it swerved up the track resulting in hitting the other driver. The district attorney’s office and the grand jury took his word for it and never filed any criminal charges. Knowing that Stewart would not be held criminally accountable for his actions, the Ward family filed a civil suit which was eventually settled under undisclosed terms.

A number of drivers who witnessed the incident were interviewed for The Hit. Each one explained the concept of “stoning.” Stoning is a term for when a race car driver maneuvers the car in a way to throw dirt towards another driver during a caution to intimidate another driver, or more commonly, as retaliation towards another driver for a prior on-track incident. Stoning is not something that is allowed in dirt track racing but breaking that rule is not really enforced. Drivers explain it as being just part of the sport. Each of these drivers interviewed also believe that Stewart was attempting to stone Ward for trying to confront him on the track.

Before we go further, no one interviewed in The Hit, not even his parents, said what Ward did in confronting Stewart was a good idea. The issue is not whether Ward put himself at a greater risk with his actions, It’s whether what Stewart did caused this tragedy.

It is not disputed that Stewart accelerated his car moments before hitting Ward. The question is whether he did it to avoid Ward, or to stone him. Though Stewart’s actual intent will only be known by him, Knott Laboratory was able to reconstruct the incident to look at it from different angles. They came to the conclusion that Stewart did not practice reasonable care, especially that of a seasoned veteran driver, when he maneuvered his car the way he did, regardless of his intent. As the reconstruction ultimately unveils, a number of less experienced and younger drivers safely avoided Ward as he moved lower down the track in search of Stewart. As Stewart’s car moves closer to Ward, the raw footage and reconstruction show his car moving noticeably faster and veering towards Ward.

None of us non-racers will ever really know how to define reasonable care for a driver in the midst of a race. But what many of us do understand is that emotions can get the best of us and can make us act unreasonable. Is the fact that all other cars in the area of Kevin Ward, Jr. avoided him while Tony Stewart struck him enough to show a jury that Stewart’s actions did not involve reasonable care? Would a reasonable race car driver be able to foresee that injury or death could occur as a result of stoning another driver? Because stoning may not have led to any injuries in the past, does that mean that it leading to a death here was simply unforeseeable? Had the civil suit gone to trial, these questions would be among the most important for the jury to answer in determining if Tony Stewart was responsible for Kevin Ward Jr.’s death as a result of civilly liable negligence.