Since the day he was involved in an incident that took the life of Kevin Ward Jr., Tony Stewart hasn't competed in a race. He has vanished from the public eye, surrounding himself with close friends and family, and is said to be grieving at an undisclosed location, according to the NASCAR team he co-owns, Stewart-Haas Racing.
As Stewart mourns, an investigation is ongoing into the actions that led to Ward's Aug. 9 death. Ontario (N.Y.) County Sheriff Philip Povero stated that the initial findings have not indicated any basis to find "criminal intent" by Stewart, whose sprint car struck and killed an on-foot Ward during a race at Canandaigua Motorsports Park.
The purpose of the investigation is to gather all available facts, and then assess whether Stewart should face any of an array of potential charges for his role in Ward's death, according to Meri Van Blarcom-Gupko, an attorney at Wiley Malehorn Sirota & Raynes in Morristown, N.J., who specializes in motorsports-related legal issues and spoke at length with SB Nation.
The criminal side
Murder or first-degree manslaughter are the most serious charges to be considered. Obtaining a conviction on either count would hinge on the prosecution being able to determine Stewart's intent, which would be a challenge, especially under the facts publicly presented.
"Proving that Stewart intentionally aimed at Ward with an intention of seriously injuring him or killing him is virtually impossible," Van Blarcom-Gupko said. "Although his 'bad boy' reputation precedes him, it is quite the stretch to allege that because he has thrown punches or a helmet at races before, it is proof that he intentionally went after Ward with his car. There is no pattern of Stewart aiming his car at competitors to scare or injure them from which any intent could theoretically be derived. At this point, there is no evidence to suggest a first-degree charge should even be considered."
A manslaughter or criminally negligent homicide charge would place the burden on the district attorney to show that Stewart's behavior was not in line with what a reasonable person would have done in a similar situation. Essentially, did Stewart do something that is atypical of a sprint car driver when under caution or when someone is walking on the track?
On this point, the sheriff's office has been seeking out and speaking with individuals with expertise in sprint racing who can provide "relevant factual information" and "firsthand knowledge," Povero said during an Aug. 11 press conference.
"It is not outside the norm for a sprint driver to accelerate to turn the car to the left, and for that to cause the back of the car to slide right," Van Blarcom-Gupko said. "That would be an area where the experts would need to inform investigators as to the various reasonable ways for a sprint car driver to react in the situation."
Experts will also need to educate investigators on the technical aspects of a sprint car and how it reacts to have a full understanding of what happened.
Vehicular homicide is one charge that Stewart will not face. It is not applicable because Stewart was not under the influence of drugs/alcohol nor does he have a bad driving record, among other contributing factors.
Without knowing the full details of the investigation, Van Blarcom-Gupko can't gauge whether Stewart will ultimately face criminal charges. But in her estimation, the most likely charge Stewart could face, if he was to be charged, is criminally negligent homicide, a Class E felony in New York and "the lowest level of criminal charge because the conduct at issue did not warrant a higher charge." However, she is of the opinion that the known facts do not support the filing of any criminal charge against Stewart.
If convicted of negligent homicide, Stewart would face a sentence that is not to exceed four years in prison.
The civil side
Although no exact date has been set, whether Stewart will face any criminal charges is likely to be determined within the next couple of weeks, according to Povero. But criminal charges are not the only reason that could result in Stewart appearing in court, as a civil suit seems certain.
A wrongful death lawsuit against Stewart for his involvement in Ward's death is one option available to Ward's family. They would then be able to seek compensatory damages. The standard of proof is lower in civil court than in criminal court, but any potential decision would take into account Ward's actions on the night he was killed.
Although somewhat of an accepted practice, Ward did walk toward the section of the track where cars were moving 30-to-35 mph, and he did so wearing a black fire suit and black helmet. The defense will almost certainly raise the question of whether Stewart even saw Ward, and if he did, at what juncture and how much time did he have to react.
"Stewart would contend that Ward's conduct leaving his car and going onto the racing surface contributed to his death," Van Blarcom-Gupko said. "Unfortunately, if Ward had remained in his vehicle, the outcome would be different and that has legal implications.
"New York is a pure comparative negligence state, which means that even if Ward is deemed to have negligently contributed to his death, it does not serve as a bar to recovery. Rather, whatever damages are awarded will be reduced in proportion to Ward's negligence. Thus, regardless of whether the jury allocated anywhere between one percent and 99 percent of the negligence on Ward, his family could still recover the remaining percentage attributed to Stewart."
In all likelihood, Stewart would seek an out-of-court settlement with the family to avoid a drawn-out process that could entangle sponsors and his race teams.
A lawsuit could also be filed against Canandaigua for contributing to Ward's death through improper lightning or a lack of other safety measures -- i.e., not having a rule in place that prohibited drivers from exiting their cars following a wreck. However, that would require a showing that Canandaigua had conditions that deviated from what is standard for similar racetracks.
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Stewart's sponsors could be sued for supporting and funding a driver with behavior that could be deemed reckless.
"One arguable theory for a sponsorship suit would be that they allowed Tony to race their car even though they knew his reputation for altercations," Van Blarcom-Gupko said. "However, in general, it is complicated to demonstrate liability against a sponsor when their role is generally to provide funding and have no say in the day-to-day operations of or exercise no control over the team, car or driver."
Because Stewart was driving for Tony Stewart Racing and not Stewart-Haas Racing, there is no legal basis for the family to include the NASCAR team in a lawsuit, Van Blarcom-Gupko believes. Therefore, the organization that also fields cars for Danica Patrick, Kevin Harvick and Kurt Busch would not be threatened.
SHR could be impacted from the residual effects of any potential criminal charges or civil suit. Stewart's sponsors, which include high-profile associations with Bass Pro Shops, Mobil 1 and Chevrolet, could dissolve their relationships citing morals clauses typically found in contracts if Stewart were to be criminally charged.
"Some sponsors may be willing to ride out the criminal process to the end before pulling out to allow Tony the benefit of innocent until proven guilty," Van Blarcom-Gupko said, "and others may try to find a legal way out of the agreement quickly to avoid going through the criminal and even the civil process."