On Saturday night, three-time NASCAR Sprint Cup Champion Tony Stewart hit and killed Kevin Ward, a 20-year-old fellow competitor, during a Sprint Car race. The two were opponents in a race in New York when there appeared to be a routine accident and the officials threw the caution flag. Ward then got out of his car to confront Stewart, was narrowly missed by at least one other driver and then Stewart struck and killed him. Stewart has not been charged, and the local sheriff has suggested that he was not conducting a criminal investigation. This is strange to me, given the choice of felonies that Stewart arguably committed. While I am not suggesting that he is guilty of any one of these crimes, I do believe that such an investigation should be pursued.
This race occurred in New York, so New York state law applies. There are a host of potential felony charges that could be pursued here. First, under New York law, if a person shows depraved indifference to human life and recklessly engages in conduct which creates a grave risk of death, he or she can be charged with second degree murder. Some who have seen footage of this crash have opined that Stewart may have goosed the throttle to scare Ward. How is this any different from someone who waves a gun to scare another and accidentally fires, resulting in death? That person would most likely be charged with second-degree murder.
Earlier this summer, a soccer player from Detroit was charged with second degree murder for punching a referee. If Stewart meant to goose the throttle to spray dirt on Ward, there should at least be an inquiry into whether second degree murder is an appropriate charge. I am sure authorities are reluctant to make this charge, as it could result in life in prison for Stewart, but Lady Justice is blind for a reason.
Manslaughter in the first degree has occurred when, with intent to cause injury, someone causes death. An investigation should be underway to explore Stewart's intent. Manslaughter in the second degree only requires recklessness. If Stewart meant to scare Ward, given the circumstances and the fact the caution flag had been thrown, it certainly seems reckless. Finally, criminally negligent homicide can be charged when an individual fails to perceive the risk that death can occur in a certain circumstance, and a reasonable person would perceive that risk. Another driver swerved to miss Ward, and thus an investigation should be underway as to whether Stewart should have reasonably done the same. While some have argued that Ward contributed to the tragedy by getting out of his car, given that Stewart has done the same thing more than a handful of times, should he have reasonably expected Ward to do the same? This should all be part of an investigation.
It may well be that charges are not appropriate. Others who have seen the tape have argued that it is clear that Stewart was trying to avoid Ward, which is why his rear wheel appears to have made contact first. This is when a full investigation is imperative. They need to examine the cars involved, do forensics of the skid marks and obtain all video of the crash and the moments leading up to it. Such an investigation will not only help determine whether criminal charges are appropriate, but also assist in any civil case that may be filed by Ward's family.
Stewart initially planned to race at Plymouth Speedway in Indiana on Saturday, and the vice president of competition for Stewart's team had said that they were "business as usual." If I were Stewart's lawyer, I'd certainly tell him not to race and to amend that statement. Both the statement and his original decision to race are sure to come up in the suit for monetary damages that may follow, even if charges are never filed. Ward's family is likely being inundated with lawyers offering to represent them in a civil suit. Such a suitwould mandate an investigation as well, and could even include those who organized the race if there were any irregularities in the response to the initial crash. If a jury finds that Ward contributed to his death, any monetary award would be decreased by his percentage of fault. Theseare issues that must be explored now, while memories and evidence are fresh. Many lives were changed in an instant that night--an investigation will help to establish whether that instant should be labeled an accident or a felony.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heatheris also anational television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360 and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
