Ward v. Stewart

Decision Date12 December 2017
Docket Number7:15–CV–1023
Parties Kevin A. WARD, Sr. and Pamela Ward, individually and as Administrators of the Estate of Kevin A. Ward, Jr., deceased, Plaintiffs, v. Anthony Wayne STEWART, Defendant. Anthony Wayne Stewart, Counter–Claimant, v. Kevin A. Ward, Sr. and Pamela Ward, individually and as Administrators of the Estate of Kevin A. Ward, Jr., deceased, Counter–Defendants.
CourtU.S. District Court — Northern District of New York

THE LANIER LAW FIRM, Attorneys for Plaintiffs, 6810 FM 1960 Road West, Houston, TX 77069


THE LANIER LAW FIRM, Attorneys for Plaintiffs, 126 East 56th Street, 6th Floor, New York, NY 10022


WOODS OVIATT GILMAN LLP, Attorneys for Defendant, 350 Main Street, Suite 1900, Buffalo, NY 14202


ICE MILLER LAW FIRM, Attorneys for Defendant, One American Square, Suite 2900, Box 82001, Indianapolis, IN 46282


DAVID N. HURD, United States District Judge


On August 7, 2015, plaintiffs Kevin A. Ward, Sr. ("Mr. Ward") and Pamela Ward ("Mrs. Ward") (collectively "plaintiffs") filed this wrongful death action in Supreme Court, Lewis County, against defendant Anthony Wayne Stewart ("Stewart" or "defendant"), a race car driver who struck and killed their son, Kevin A. Ward, Jr. ("Ward Jr.").

The fatal crash occurred on August 9, 2014, during an evening sprint car event being held at Canandaigua Motorsports Park ("CMP"), a dirt racetrack in Canandaigua, New York. According to plaintiffs' four-count complaint, Stewart caused the on-track collision by improperly maneuvering his vehicle toward Ward Jr., a fellow driver, after race officials signaled for caution on the track.

On August 21, 2015, Stewart removed plaintiffs' civil suit to federal court and asserted a counterclaim for indemnification based on two liability releases that all participants, including defendant and Ward Jr., were supposed to sign off on before racing at CMP that night. After removal, defendant moved to transfer the action to the United States District Court for the Western District of New York, Rochester Division. That motion was denied on September 29, 2015, Ward v. Stewart, 133 F.Supp.3d 455 (N.D.N.Y. 2015), and the parties proceeded to discovery.

On March 28, 2017, with fact discovery closed, Stewart moved pursuant to Federal Rule of Civil Procedure ("Rule") 56 seeking partial summary judgment on plaintiffs' claims.1 According to defendant, (1) plaintiffs' negligence-based theories of relief are barred by the effect of the two liability releases or, alternatively, by the common law doctrine of primary assumption of risk; and (2) there is no evidence from which a reasonable jury might conclude that Ward Jr. suffered damages in the form of either pre-impact terror or post-impact conscious pain and suffering.

On April 11, 2017, plaintiffs opposed Stewart's motion and cross-moved for partial summary judgment on defendant's indemnification counterclaim. According to plaintiffs, the two liability releases on which defendant's counterclaim relies are either inapplicable due to the particular facts of this case or wholly unenforceable as a matter of state law.

The parties' motions were fully briefed and oral argument was heard on Friday, October 27, 2017 in Utica, New York. Decision was reserved.


The collision that cost Ward Jr. his life took place at an event sponsored by Empire Super Sprints ("ESS"), a racing organization that puts together "sprint car" races for its members at race locations all over the northeast.2 Sprint cars are a kind of winged vehicle with "staggered" rear tires that is customarily driven counterclockwise on a banked circular track composed of either dirt or pavement. Because of these factors and other aspects of their design, sprint cars tend to "pull" to the left absent contrary steering input from the driver.

On this occasion, ESS obtained use of racing facilities from CMP owner/operator Jeremie Corcoran ("Corcoran"), who paid ESS a flat fee to host its August 9 race at the Canandaigua track. As a result of this shared arrangement, ESS and CMP maintained separate liability releases that each organization expected participants to sign before venturing out onto the racecourse.

ESS typically provided the first of these releases as part of a yearly membership form it distributed to race car drivers, team owners, and other enthusiasts in advance of that year's schedule of sprint racing events (the "ESS Release"). As relevant here, a portion of Section Two of the ESS Release explained that:

In consideration of being permitted to join Empire Super Sprints, Inc. (hereinafter called "ESS ") and being permitted to participate in or be a spectator at Empire Super Sprints, Inc. membership events during 2014 I hereby:
1. Release, waive, discharge, and promise not to sue ESS , any of it's [sic ] officials, any of its members, any of it's [sic ] sponsors, or car owners, drivers, pit crews, for personal injury or property damage which I sustain during 2014 arising out of an ESS event, whether my loss is caused by the negligence of ESS or it's [sic ] members. This does not waive rights of suit in the event that an action is termed criminal within the jurisdiction of applicable law.
2. Agree to indemnify and hold harmless ESS , its officials and members for any loss, liability, damage, or cost which may incur due to my presence at an ESS event, whether I am competing, officiating, or observing an ESS event.
3. Assume the risks inherent in automobile racing and assume responsibility for the bodily injury or property damage which those risks can cause.

The second release at issue in this case is a separate "insurance form" that Corcoran required all participants to sign before each race (the "CMP Release"). This document explained in relevant part that:

In consideration of being permitted to compete, officiate, observe, work for, or participate in any way in the Event(s) pr being permitted to enter for any purpose any restricted area (defined as any area requiring special authorization, credentials, or permission to enter or any area to which admission by the general public is restricted or prohibited), I, the undersigned, for myself, my personal representatives, heirs, and next of kin:
3. Hereby release, waive, discharge and covenant not to sue the promoters, participants, [or others] ... from all liability to the undersigned ... for any and all loss or damage, and any claim or demands therefor on account of injury to the undersigned's person or property or resulting in death of the undersigned arising out of or related to the event(s), whether caused by the negligence of the releasees or otherwise.
4. Hereby agree to defend, indemnify and save and hold harmless the Releasees and each of them from any loss, liability, damage or cost they may incur due to claims brought against the releasees arising out of or related to the undersigned's injury or death from the event(s) whether caused by the negligence of the releasees or otherwise.
5. Hereby assume full responsibility for any risk of bodily injury, death or property damage arising out of or related to the event(s) whether caused by the negligence of releasees or otherwise.

Despite the strong words of warning included in both the ESS Release and the CMP Release (collectively the "Releases"), it is unlikely that either Stewart or Ward Jr. needed to be reminded of the dangers—the August 9 sprint car race was a far cry from being either driver's first time around a race track.

Both drivers had enthusiastically pursued the sport since childhood. Stewart first became involved in 1979, racing go-karts with the encouragement of his father, himself a hobbyist racer, from the ages of eight to about eighteen. After high school, defendant progressed from racing go-karts to "three-quarter midgets," a type of four-cylinder race car described in the record as a much smaller version of a sprint car.

Over the years, Stewart continued to race increasingly powerful cars against increasingly skilled fields of opponents while he worked a series of odd jobs—sealing parking lots at night, driving a tow truck, and even working at McDonald's—to make ends meet. In fact, just before making the leap to professional auto racing, he spent his early twenties traveling around the country racing in sprint car competitions.

In 1995, Stewart ascended to the "pinnacle" of the sport: NASCAR. As he explained in his deposition, NASCAR is a "stock car racing league" where participants drive a "3,300 pound full-bodied car." Defendant enjoyed phenomenal success as a professional driver in both NASCAR's "Cup Series," the racing equivalent of a professional football or baseball league, and its "Xfinity Series," one level of competition below that.3

All of these professional achievements meant that an ESS-sponsored sprint car event like the one being held in Canandaigua on August 9 had become just a sort of "hobby" or "recreational activity" that Stewart, by then a seasoned professional driver known for having a legendary temper, attempted to squeeze into his busy schedule whenever the chance arose.

If it had not been cut short at just twenty years, the arc of Ward Jr.'s racing career might have one day ended up looking much the same. Just like Stewart, Ward Jr. began at a young age racing go-karts with the support and encouragement of his father. And much like defendant, he progressed into larger classes of vehicles over the course of the ensuing decade, getting an early jump on sprint car racing during his late teenage years.

Ward Jr.'s sprint car experience came at an annual cost of between $40,000 and $80,000, a sum which Mr. Ward funded through the family's painting business and his associated personal and...

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