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Case 7:15-cv-01023-DNH-TWD Document 71-22 Filed 04/11/17 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF NEW YORK

KEVIN A. WARD, SR. AND PAMELA )


WARD, INDIVIDUALLY AND AS )
ADMINISTRATORS OF THE ESTATE OF )
KEVIN A. WARD, JR., DECEASED )
)
Plaintiffs, ) Civ. Action No. 7:15-cv-01023
) DNH-TWD
vs. )
)
ANTHONY WAYNE STEWART, )
)
Defendant. )

PLAINTIFFS STATEMENT OF MATERIAL FACTS IN SUPPORT OF THEIR


CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS
MOTION FOR PARTIAL SUMMARY JUDGMENT

Pursuant to Local Rule 7.1(a)(3), Plaintiffs (the Wards) submit this Statement of

Material Facts in Support of their Cross-Motion for Summary Judgment and Response to

Defendants Motion for Partial Summary Judgment, and respectfully submit as follows:

RESPONSES TO DEFENDANT TONY STEWARTS STATEMENT OF MATERIAL


FACTS (STEWARTS STATEMENT) [DOC. NO. 67-28].

1. The Wards admit that decedent Kevin Ward, Jr. (Ward Jr.) was a driver in the Empire

Super Sprints (ESS) racing series in 2014.

2. Plaintiffs admit that Ward Jr. participated in numerous go-kart races and various types of

car racing between the ages of eight and twenty. Plaintiffs, however, deny that Ward Jr.

commonly signed release and indemnity agreements between 1998 and 2014 because Ward Jr.

was a minor for most of that time period. Ex. D (Ward Sr. dep.) at 26:4-7; 29:5-14. Further, the

Wards deny that the relevant risk in this case was present in any of his previous races and that

the inherent risks of sprint car racing are similar to other types of racing. Id. at 26:7-30:13; infra

39; Ex. B (Ward Sr. dec.) at 6-7.


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3. The Wards admit that Ward Jr. had been in a crash in 2012 but would point out that any

injury was limited to a bruise on his knee and a sore shoulder and that there was no need

for medical treatment. Ex. D (Ward Sr. dep.) at 53:16-54:19.

4. The Wards admit that Stewart was a professional race car driver for a NASCAR series

but the evidence shows Stewart raced recreationally on August 9, 2014. See infra 48-49; Ex.

A (Stewart dep.) at 46:6-18, 47:10-16; Ex. M (not identifying Stewart as driver, etc.).

5. The Wards admit that Ward Jr. and Stewart participated in the subject August 9, 2014

ESS race at Canandaigua Motorsports Park (CMP) but deny that Stewart was designated as a

driver in the relevant releases and deny that he was a released party or indemnitee in such

capacity. See infra 48-49; Ex. M (not identifying Stewart as driver, etc.); Ex. P at 1 (same).

6. The Wards deny that Ward Jr. lost control of his car but admit that his car came to rest

near the wall at the high side of the track. Infra 38.

7. The Wards admit that Ward Jr. exited his disabled race car and walked on the track while

the track was under caution but otherwise deny Stewarts characterization of Ward Jr.s actions.

Infra 38-42.

8. The Wards admit that Chuck Hebing avoided making contact with Ward Jr. because

Hebing was driving appropriately given that the track was under caution and because Hebing

followed instructions from track officials. However, the Wards otherwise deny Stewarts or

Hebings characterization. Infra 41.

9. The Wards deny the allegations made in paragraph 9 of Stewarts Statement. Infra 41.

10. The Wards admit that Ward Jr. died from the injuries he sustained when he was hit by

Stewarts race car but otherwise deny Stewarts characterization of the impact. Infra 41-42.

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11. The Wards deny the allegations in paragraph 11 of Stewarts Statement. Ex. G (Track

Video 2) at 00:01 et seq.; Motion exhibit M (death certificate).

12. The Wards deny the allegations as phrased in paragraph 12 of Stewarts Statement. Ex. R

(Pam Ward dep.) at 72:15-20, 111:19-112:4; Ex. D (Ward Sr. dep.) at 175:18-176:4, 200:7-21.

Although the Wards cannot be expected to read Stewarts mind, the summary judgment record at

least raises a fact issue as to whether Stewart intended to maneuver the car as he did, intended to

throw dirt on Ward Jr., intended to scare or humiliate Ward Jr., intended to graze Ward, Jr., or

intended to cause serious injury to Ward Jr. knowing that he would have a basis of deniability

after the fact. Infra 38-42; Ex. S (Gordon rep.) at 30-32 (opining Tony Stewarts conduct was

intentional).

13. The Wards admit the allegations in paragraph 13 of Stewarts Statement.

14. The Wards admit the allegations in paragraph 14 of Stewarts Statement.

15. The Wards admit that paragraph 15 of Stewarts Statement provides a fair

characterization of the ESS Release language but deny that it applied to Stewart. Infra 43-47.

16. The Wards admit that paragraph 16 of Stewarts Statement provides a fair

characterization of the ESS Releases language regarding assumption of the risk but deny that it

applies to Stewarts claims and defenses in this case. Infra 43-47, 51-55.

17. The Wards admit that paragraph 17 of Stewarts Statement provides a fair

characterization of the ESS Releases language on indemnification but deny that Stewart may

rely on this provision for any claim or defense in this case. Infra 43-47, 51-55.

18. The Wards admit that paragraph 18 of Stewarts Statement provides a fair

characterization of certain text in the ESS Release but deny that Stewart may rely on this

provision for any claim or defense in this case. Infra 43-47, 51-55.

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19. The Wards deny that Stewart executed a copy of the ESS Release before he killed Ward

Jr. during the August 9, 2014 race. Infra 43-47, 51-55.

20. The Wards deny that Stewart was a member of ESS for any purpose, including for the

August 9, 2014 race. Infra 43-47, 51-55.

21. The Wards admit that paragraph 21 of Stewarts Statement provides a fair

characterization of language in the CMP Release and that Ward Jr. executed the CMP Release in

exchange for the right to enter the track area, but they deny that Stewart may rely on the CMP

language for any claim or defense in this case. Infra 48-49, 51-55.

22. The Wards admit that paragraph 22 of Stewarts Statement provides a fair

characterization of language in the CMP Release and that Ward Jr. executed the CMP Release in

exchange for the right to enter the track area, but they deny that Stewart may rely on the CMP

language for any claim or defense in this case. Infra 48-49, 51-55.

23. The Wards admit that paragraph 23 of Stewarts Statement provides a fair

characterization of language in the CMP Release and that Ward Jr. executed the CMP Release in

exchange for the right to enter the track area, but they deny that Stewart may rely on the CMP

language for any claim or defense in this case. Infra 48-49, 51-55.

24. The Wards admit that paragraph 24 of Stewarts Statement provides a fair

characterization of language in the CMP Release and that Ward Jr. executed the CMP Release in

exchange for the right to enter the track area, but they deny that Stewart may rely on the CMP

language for any claim or defense in this case. Infra 48-49, 51-55.

25. The Wards admit that paragraph 25 of Stewarts Statement provides a fair

characterization of language in the CMP Release and that Ward Jr. executed the CMP Release in

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exchange for the right to enter the track area, but they deny that Stewart may rely on the CMP

language for any claim or defense in this case. Infra 48-49, 51-55.

26. The Wards admit that paragraph 26 of Stewarts Statement provides a fair

characterization of language in the CMP Release and that Ward Jr. executed the CMP Release in

exchange for the right to enter the track area, but they deny that Stewart may rely on the CMP

language for any claim or defense in this case. Infra 48-49, 51-55.

27. The Wards admit that paragraph 27 of Stewarts Statement provides a fair

characterization of language in the CMP Release and that Ward Jr. executed the CMP Release in

exchange for the right to enter the track area, but they deny that Stewart may rely on the CMP

language for any claim or defense in this case. Infra 48-49, 51-55.

28. The Wards admit that the Wards signed identical versions of the CMP Release.

29. The Wards deny the allegations made in paragraph 29 of Stewarts Statement. Ex. F

(Zemken dep.) at 22:14-17; Ex. L (Wesley aff.) at 11; Ex. G (Track Video 2) at 00:11

(showing Ward Jr. raising his arms, scrambling to get away, and jumping just before Stewart ran

him over).

30. The Wards admit that blood draws detected THC in Ward Jr.s blood but deny that he

inhaled or ingested marijuana on August 9, 2014, and Stewarts evidence does not suggest

otherwise. See Stewarts Statement of Facts at 30 (not alleging that Ward Jr. inhaled or

ingested marihuana on the date of the race).

31. The Wards deny that the levels of THC found in Ward, Jr.s blood were sufficient to

cause impairment during the August 9, 2014 race. The expert whose opinion Stewart cites for

this proposition admitted, Currently, there is no scale that directly associates serum

concentrations of THC with impairment of an individual. Stewart Mot. Exhibit X (Furbee

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report) at 1. Even after making this acknowledgement, Furbee goes on to cite a study that

attempt[ed] to develop per se limits for driving under the influence of marijuana. Id.

(emphasis added). The Wards therefore object to the Furbee report on the basis that it is wholly

unreliable. Further, the video of the August 9, 2014 race speaks for itself and demonstrates that

Ward Jr. had full control of all faculties until Stewart killed him with a 1,500-pound race car. See

generally Ex. H (Track Video 1).

32. The Wards deny that Ward Jr. was impaired. Supra 31; see generally Ex. H (Track

Video 1).

PLAINTIFFS STATEMENT OF MATERIAL FACTS IN SUPPORT OF THEIR


CROSS-MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANTS
MOTION FOR PARTIAL SUMMARY JUDGMENT

I. INTRODUCTION TO STEWART AND WARD JR., AND THE INCIDENT AT ISSUE.

33. Defendant Tony Stewart is a legendary race car driver with supreme skill, but he also has

a well-documented history of acting violently toward others.1 Prior to the incident at issue,

Stewart had raced cars professionally for twenty years. Ex. A (Stewart dep.) at 10:9-14. In all,

Stewart had thirty-five years experience in kart and car racing. Ex. A (Stewart dep.) at 10:15-23,

39:15-18, 41:4-6.2 Acknowledging his status as a driver with skill rivaled only by a handful of

other racers, Stewart acknowledges that his temper had manifested into violence on several

occasions. Ex. A (Stewart dep.) at 86:18-98:24, deposition exhibits 100, 101, 102, 103, 104.

Stewarts acts of violence include ramming other racers cars after a race, throwing his helmet at

1
Even Tony Stewarts video biography, Smoke, includes in the written synopsis the following
statement: Youll be blown away by Tonys openness while discussing his temper . . . . Ex.
E (DVD Cover).
2
While Stewart is mostly recognized as a superstar NASCAR racer, he focused primarily on
sprint car racing for two years during his storied career. Ex. A (Stewart dep.) at 21:18-24,
23:10-21.

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an opponents car, promising to run [another racer] over every chance Stewart would have

during the race season, punching a racer, and punching a photographer. Id.; id. at 157:17-159:23.

34. Kevin Ward Jr. was a young, skilled, recreational driver who followed the rules. Kevin

Ward, Jr., deceased, was just twenty years old on August 9, 2014. Ex. B (Ward dec.) at 2.

Although just a kid and amateur racer, Ward Jr. was known among seasoned sprint car drivers as

a good racer who followed the rules. Ex. C (Hebing dep.) at 10:1-12; Ex. F (Zemken dep.) at

40:12-22.3 Ward Jr. was a hard worker and faithful full-time employee of his familys business

in Lyons Falls, New York. Ex. B (Ward dec.) at 3; Ex. D (Ward Sr. dep.) at 82:7-83:6, 85:6-7.

Although Ward Jr., like any young amateur racer, may have dreamed of being a professional

racer at some point in his life, he raced only for recreation and practice, relying on his job at the

family business for his livelihood. Id.; Ex. B (Ward dec.) at 3-4.

35. On August 9, 2014, Stewart and Ward Jr. met on a dirt sprint car track at Canandaigua

Motorsports Park (CMP). The evidence shows that, after forcing Ward Jr.s car into the wall,

Stewart sought to punish Ward Jr. for exiting his car and making what Stewart perceived as

disrespectful gestures. Despite acknowledging the obvious catastrophic risk posed by such

actions, Stewart steered his car right at Ward Jr., and although Ward Jr. tried to get out of the

way, Stewart ran him over, crushing and killing him. Ex. A (Stewart dep.) at 5:5-15, 6:3-18,

166:11-167:3; Ex. G (Track Video 2) at 00:10-12.

II. THE AUGUST 9, 2014 SPRINT CAR RACE AT CANANDAIGUA MOTORSPORTS PARK.

36. The characteristics of a super sprint race car show that Stewarts actions were at least

reckless and likely intentional. First, the right rear tire has a much greater circumference than the

3
Although Stewart has utilized the platform offered by summary judgment proceedings to
impugn Ward Jr.s character with irrelevant allegations of drug use, drivers who frequently
raced against Ward Jr. never reported him for suspicion of driving under the influence. Ex. C
(Hebing dep.) at 64:21-65:11.

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left rear tire, a setup commonly referred to as a stagger, which makes the car tend to go left

absent contrary input from the driver. Ex. F (Zemken dep.) at 11:22-12:4, 50:6-17;4 Ex. A

(Stewart dep.) at 28:4-15, 32:23-33:6, 34:2-4. Turning a sprint car does not require applying

throttle, regardless of whether the car is traveling at race speeds or caution speeds. Ex. F

(Zemken dep.) at 12:7-21. Moreover, the track at CMP is banked on the right side, which further

compels the car to turn left. Ex. F (Zemken dep.) at 16:16-19. Although a drivers view of the

right side of the car is somewhat hindered by the wing and driver restraints, you can see your

right front tire [and] you can see everything in front of you clearly. Ex. F (Zemken dep.) at

13:13-23.

37. On August 9, 2014, track conditions and weather were good for racing. Ex. F (Zemken

dep.) at 15:14-20. In terms of visibility, the CMP track was lit, so [drivers] are visible, so

[drivers] see as much during the day as [they] do at night. Ex. F (Zemken dep.) at 17:2-3.

38. Several laps into the race, Stewart executed an overly-aggressive attempt to pass Ward

Jr.s number 13 car by using a common maneuver called a slide job. Ex. A (Stewart dep.) at

111:12-15. As the videos makes clear, Stewart failed to safely execute the slide job and forced

Ward Jr.s car into the wall. Ex. H (Track Video 1) (final minutes). Right after Stewarts number

14 car forced Ward, Jr.s number 13 car into the wall, Ward Jr.s car became disabled and came

to a rest near the high sideor outside right edgeof the track. Ex. F (Zemken dep.) at 18:18-

23, 19:15-20; Ex. H (Track Video 1) (final minutes); Ex. D (Ward Sr. dep.) at 193:9-13. Because

this type of reckless racing often provokes negative reactions from affected drivers, Stewart

4
Ms. Zemken-Friesen is an experienced racer, who participated in the August 9, 2014 race and
witnessed the incident. Ex. F (Zemken dep.) at 8:23-9:3, 64:8-11, 11:4-8, 17:7-14, 20:10-
112, 22:5.

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likely anticipated that his reckless maneuver would provoke such a reaction from Ward Jr. Ex. F

(Zemken dep.) at 45:14-16.5

39. Immediately thereafter, race officials waved yellow caution flags and activated yellow

caution lights around the track, and officials alerted all drivers by radio that the track was under

caution and instructed drivers to stay low where Ward, Jr. and his car were. Ex. F (Zemken

dep.) at 19:20-22, 29:7-14, 46:9-47:11, 48:2-5, 48:16-22; Ex. I (Reynolds dep.) at 22:14-23,

45:5-14;6 Ex. J (Miller dep.) at 46:25-47:14; Ex. C (Hebing dep.) at 45:10-18; Ex. A (Stewart

dep.) at 112:18-113:15, 114:3-6, 114:25-115:7; Ex. H (Track Video 1) (final minutes). Racers

know that during caution periods, pedestrians such as racers and emergency rescue personnel

will be on the track. Ex. A (Stewart dep.) at 146:9-15; Ex. C (Hebing dep.) at 8:25-9:25, 10:11-

19, 40:13-16; Ex. F (Zemken dep.) at 43:17-44:7, 45:14-16. When the track is under caution,

drivers must therefore drive at idle speed, a rule all drivers but Stewart complied with

following Ward Jr.s crash. Ex. F (Zemken dep.) at 20:5-12.

40. After his car became disabled and the caution warnings were conveyed, Ward Jr. exited

his car, which is common given the dangerous risk of fire virtually undetectable by sight. Ex. F

(Zemken dep.) at 43:17-44:7. Ward Jr. then proceeded slightly toward the middle of the track,

and while he gestured toward Stewarts car, Ward Jr. was not going after Stewarts car as

Stewart has alleged. Ex. F (Zemken dep.) at 21:4-10; Ex. G (Track Video 2) at 00:01-15.

41. By this time, all drivers had ample warning and opportunity to slow to a small fraction of

race speed. Ex. C (Hebing dep.) at 17:15-19; Ex. A (Stewart dep.) at 146:4-8. Everyone had

5
In fact, Stewart himself is renowned for retaliating on the track against other drivers for what
Stewart deemed was inappropriate behavior. Ex. A (Stewart dep.) at 86:18-98:24, deposition
exhibits 100, 101, 102, 103, 104; Ex. D (Ward Sr. dep.) at 193:9-13.
6
Dean Reynolds is vice president of ESS and handles the day-to-day operations of ESS. Ex.
I (Reynolds dep.) at 5:23-6:12.

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ample opportunity to properly follow the line along the left, inside portion of the track. Ex. F

(Zemken dep.) at 19:23-20:3. Other racers easily saw Ward Jr. on the track and were able to

avoid hitting him. Ex. C (Hebing dep.) at 54:11-13; Ex. G (Track Video 2) at 00:00-00:15.

Stewart admittedly saw Ward Jr. walking on the track at the same time his car came into view.

Ex. A (Stewart dep.) at 115:24-116:5. Stewart even confesses that he saw Ward Jr. standing on

the track pointing at [Chuck Hebings] number 45 car, which proceeded just ahead of

Stewarts car. Ex. A (Stewart dep.) at 160:21-162:14, deposition exhibit 107. Hebing easily

avoided Ward Jr. because, like all other drivers except Stewart, Hebing was staying low and

driving at idle speed as instructed. Ex. F (Zemken dep.) at 21:19-22:6; Ex. C (Hebing dep.) at

15:15, 19:20-20:24; Ex. G (Track Video 2) at 00:10 (When Hebings number 45 car safely

passed Ward Jr., the distance between Hebings car and the infield was noticeably narrow

compared to the distance between Stewarts car and the infield when he came upon Ward Jr.).

42. Stewart knew the track was under caution and drove appropriately until he approached

Ward Jr. Ex. F (Zemken dep.) at 48:23-49:4. Stewart concedes that he should have passed Ward

Jr. and his disabled car on the left or low side of the track as officials instructed. Ex. A

(Stewart dep.) at 116:9-22. That should have been easy because left is the direction that the car

naturally goes. In direct violation of track officials admonitions, Stewart turned his front wheels

to the right as he approached Ward Jr., forcing it to travel high and right at Ward Jr. Ex. F

(Zemken dep.) at 22:5-13, 27:3-10, 38:3-6, 50:23-51:2. Although Stewart has claimed he tr[ied]

to drive the car down to the left to get away from [Ward Jr.], the video evidence clearly

contradicts his characterization of the maneuver. Ex. A (Stewart dep.) at 123:17-124:3; Ex. G

(Track Video 2) at 00:10-15 (showing Stewarts number 14 car traveling fast and high, and

continuing to travel further up the track instead of down like other cars). Once Stewarts car had

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targeted Ward Jr., Stewart hit the throttle propelling his car even faster toward Ward Jr. Ex. F

(Zemken dep.) at 22:17-23:5; Ex. K (YouTube video with audio) at 0:33-0:36, Ex. G (Track

Video 2) at 00:09-00:12; Ex. L (Wesley aff.) at 10. Stewart confessed that he did not need to

throttle his car to make it turn. Ex. A (Stewart dep.) at 151:17-20. Anticipating the impact, Ward

Jr. put his hands up in a defensive position and desperately scrambled to get out of the way. Ex.

F (Zemken dep.) at 22:14-17; Ex. L (Wesley aff.) at 11; Ex. G (Track Video 2) at 00:11. Based

on the evidence and reasonable inferences drawn therefrom, Stewart either intentionally hit Ward

Jr. with his car or intended to execute a reckless maneuver in an effort to scare or humiliate Ward

Jr. Id.; Ex. F (Zemken dep.) at 53:7-13; Ex. D (Ward Sr. dep.) at 175:18-176:4, 191:12-18,

200:7-21; Ex. S (Gordon rep.) at 30-32.

III. STEWART WAS NOT A MEMBER OF THE EMPIRE SUPER SPRINTS (ESS) CIRCUIT.

43. Under ESS policy, members get a card to represent they are a member even when they

apply for membership in person at a race. Ex. F (Zemken dep.) at 68:2-11, 71:4-7. However,

Stewart has never received a membership card. Ex. A (Stewart dep.) at 167:4-7.

44. Further, Stewart concedes he was never a full member of ESS. Ex. A (Stewart dep.) at

58:1-4. Although Stewart claims to have had temporary membership status, the circumstances

surrounding Stewarts claim are suspicious. For example, in the ESS documents, any mention of

temporary status is noticeably absent. And only Jimmy Carr signed and dated Stewarts ESS

Release. Ex. M (Stewart ESS Release). Additionally, Dean Reynolds testified that he is unable to

prove that Stewart paid the mandatory membership fee and even suggested that drivers

sometimes to not pay the fee until after the race. Ex. I (Reynolds dep.) at 17:11-18:4, 20:10-15,

30:20-23; Ex. J (Miller dep.) at 28:1-4, 36:17-20. No one knows whether the original ESS form

purportedly signed by Stewart still exists or ever existed. Ex. I (Reynolds dep.) at 10:16-25,

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11:25-12:9. Chuck Miller also contradicted Reynoldss testimony that Reynolds handled

membership applications on August 9, 2014, testifying instead that volunteer[s] handled

membership and Reynolds merely provided oversight. Ex. J (Miller dep.) at 6:14-7:5, 12:22-

24.7 Finally, before Ward Jr.s death, ESSs practice of having a temporary member sign the

membership form was loosely applied, and ESS tightened up on that later to satisfy its

insurers. Ex. J (Miller dep.) at 9:3-19.

45. Further, Stewart cannot confirm his membership status in 2014 and, instead, would defer

to crew chief Jimmy Carr, who actually filled out, signed, and dated the ESS form on August 9,

2014. Ex. A (Stewart dep.) at 54:1-5, 59:1-11, 76:17-77:4. Importantly, Stewart testified that he

does not know when he signed the ESS membership form but subsequently speculated he signed

the form before the race. Ex. A (Stewart dep.) at 78:6-79:2. Stewarts race car arrived at CMP

before Stewart did, further supporting the inference that someone besides Stewarti.e. someone

accompanying the race car such as his crew chief Jimmy Carrsigned the membership form for

Stewart. Ex. A (Stewart dep.) at 69:11-15, 77:23-25.

46. Although ESS membership statuseven purported temporary statusrequires

payment of member fees, the evidence demonstrates that Stewart did not pay a temporary

membership fee. Ex. J (Miller dep.) at 28:1-4, 36:17-20. Stewart himself does not even know

whether a fee was paid for his membership or his car. Ex. A (Stewart dep.) at 74:25-75:11,

81:12-19. ESSs vice president readily admits that the section of Stewarts form that ESS uses

to reflect payment of fees is blank. Ex. I (Reynolds dep.) at 51:19-52:4. Despite his exhaustive

7
Although later speculating that Reynolds would have handled Stewarts membership form
because it was Tony Stewart, Miller initially testified, At the track Dean will not go
around and have people sign memberships. He leaves that up to the payoff girls. Id.

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search for such evidence, the president of ESS found no proof that Stewart paid his membership

fee. Ex. J (Miller dep.) at 10:12-21, 16:21-23, 18:7-11.

47. There are numerous material differences between a full member and purported

temporary members. Temporary members paid only a $50 pass fee on a given race day

whereas full members like Ward Jr. paid ESS approximately $150 before the race season started

for membership and for permission to enter the respective tracks. Ex. J (Miller dep.) at 10:8-21;

Ex. N (Ward Jr. ESS Release); Ex. B (Ward Sr. dec.) at 5. Unlike Ward Jr. and other members

of ESS, Stewart as a temporary member had only raced on the circuit [a] handful of times

and, thus, did not possess a full members understanding of the norms and culture on the ESS

circuit. Ex. A (Stewart dep.) at 42:3-12.8 ESSs vice president admits that, because of full

members familiarity with the circuit and with one another, full members like Ward Jr. viewed

guest racers like Stewart differently than they would view other full members. Ex. I (Reynolds

dep.) at 58:15-59:8. Based on Stewarts egregious misconduct on August 9, 2014, the feeling

was apparently mutual.

IV. THE CANANDAIGUA MOTORSPORTS PARK RELEASE DOES NOT ENTITLE STEWART TO
RELEASEE OR INDEMNITEE STATUS.

48. The lone intent of the CMP waiver was to insulate CMP and the property owner from

liability in order to comply with contracts between CMP and its insurer. Ex. O (Corcoran dep.)

at 10:2-21.9 Upon entry to CMP, patrons signed different releases depending on whether they

were race participants or spectators. Ex. O (Corcoran dep.) at 13:25-14:14, 17:10-18:9, 23:7-

24:14. Although the owner of CMP testified that all racers must sign the same release, he also

acknowledged that the CMP Release signed by Stewart and the one signed by Ward Jr. differ in

8
On another recent occasion when Stewart raced at CMP, he was involved in a crash in which
others suffered injuries but not Stewart. Ex. A (Stewart dep.) at 43:18-44:20.
9
Corcoran is the owner and operator of CMP. Ex. O (Corcoran dep.) at 5:22-6:5.

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material ways. Ex. O (Corcoran dep.) at 15:11-12, 18:4-9 , 11:14-19, 13:25-14:14; compare Ex.

P (Ward Jr. CMP Release) at 1 with Ex. Q (Stewart CMP Release) at 1. Where Ward Jr.s

CMP Release designated him as a driver or other participant in the race and purportedly

precluded him from driving for recreational purposes, Stewarts CMP Release did not.

Compare Ex. P (Ward Jr. CMP Release) at 1 with Ex. Q (Stewart CMP Release) at 1; Ex. A

(Stewart dep.) at 66:5-68:23. Under the relevant language of Ward Jr.s CMP Release, Ward Jr.

merely released claims against other designated drivers who agreed to follow the rules of the

track, and Stewarts CMP Release does not place him in that class. Id.; Ex. A (Stewart dep.) at

46:6-18, 47:10-16.

49. Ward Jr. signed the CMP Release with other racers whereas Stewart signed his CMP

Release with other members of his party, who were merely spectators. Ex. O (Corcoran dep.) at

18:17-19:17. Stewart signed his CMP Release at the race parks VIP window designated for

people who do not have to pay a race fee. Ex. O (Corcoran dep.) at 23:16-24:14. The VIP

window is typically reserved for classes of people who have either paid for a season pass or who

are not racing. See id.; id. at 25:1-6.

V. STEWARTS LAWYERS HAVE DIMINISHED THE CREDIBILITY OF STEWARTS WITNESSES BY


TREATING THEM TO LAVISH MEALS AND ENTERTAINMENT AT THE GENTLEMENS CLUB.

50. Stewarts lawyers have raised doubts about the credibility of key witnesses by meeting

with those witnesses regarding evidence and their testimony in this case. Ex. I (Reynolds dep.) at

9:9-10:4, 32:17-33:2, 36:1-5. Defense counsels contacts with witnesses in this case are quite

remarkable given the character and number of those contacts. Id. For example Stewarts lawyers

treated three key witnesses to a lavish meal and adult entertainment at the Gentlemens Club in

Syracuse, New York. Ex. I (Reynolds dep.) at 32:17-33:24, 34:18-22, 35:4-13, 37:15-38:2. And

when asked whether Tony Stewarts lawyers ever suggest[ed] to you your testimony for today,

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Case 7:15-cv-01023-DNH-TWD Document 71-22 Filed 04/11/17 Page 15 of 18

ESSs vice president responded, As far as? Ex. I (Reynolds dep.) at 55:17-19. Some testimony

suggests that key witnesses were instructed not to talk to anybody without talking to a member

of [Stewarts] legal team. Ex. O (Corcoran dep.) at 31:13-32:7.

VI. NY GENERAL OBLIGATIONS LAW 5-326 APPLIES.

51. The ESS and CMP Releases are covenants, agreements, or understandings. Ex. P (Ward

Jr. CMP Release); Ex. N (Ward Jr. ESS Release).

52. According to the terms of ESSs 2014 Membership Contract, signing the ESS Release

is a condition to membership. Ex. N (Ward Jr. ESS Release). Signing the ESS Release and

payment of the fee were also conditions for accessing the CMP track and for being permitted to

participate in the August 9, 2014 race. Ex. N (Ward Jr. ESS Release); Ex. J (Miller dep.) at

9:22-10:7, 14:22-15:1 (ESS requires signing the ESS Release before [racers] go on the

racetrack); Ex. I (Reynolds dep.) at 30:6-20, 40:24-41:5. The CMP Release was expressly made

in exchange for permission to compete . . . or participate in the August 9, 2014 race and to

enter for any purpose any RESTRICTED AREA at CMP. Ex. P (Ward Jr. CMP Release).

53. The owners and operators are identified as Empire Super Sprints, Inc. in the

ESS Release and, in the CMP Release, as racing associations, sanctioning organizers or any

subdivision thereof, track operators, [and] track owners. Ex. N (Ward Jr. ESS Release); Ex. P

(Ward Jr. CMP Release); see also Ex. I (Reynolds dep.) at 30:6-20, 40:24-41:5, 45:5-24, 52:17-

20; Ex. J (Miller dep.) at 9:22-10:7, 14:22-15:1; Ex. O (Corcoran dep.) at 5:22-6:5, 7:5-10. As

amateur or recreational racers, Ward Jr. and others like Stewart and Hebing were users of the

CMP facility. Ex. B (Ward dec.) at 3-4; Ex. A (Stewart dep.) at 46:6-18, 47:10-16; Ex. C

(Hebing dep.) at 7:9-14; Ex. I (Reynolds dep.) at 27:14-25, 29:15-30:4; Ex. D (Ward Sr. dep.) at

31:13-17.

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Case 7:15-cv-01023-DNH-TWD Document 71-22 Filed 04/11/17 Page 16 of 18

54. Both ESS and CMP received a fee in exchange for permitting Ward Jr. to engage

in the amateur recreational race held on August 9, 2014. See Ex. I (Reynolds dep.) at 27:14-30:4

(discussing payments from CMP to ESS and passes), 52:17-20 (indicating ESS and CMP would

jointly decide whether to waive temporary membership fee for entry to track), 32:6-16 (testifying

that all cars pay a pit fee and its the only sport where the participants have to pay to play);

Ex. B (Ward dec.) at 5; Ex. O (Corcoran dep.) at 23:7-24, 25:7-18 (indicating racers like Ward

Jr. pay CMP either a season pass or a fee for the specific event). The Wards paid a fee directly to

CMP at a gate in exchange for permission to race, and signed a release designated himself as a

driver. Ex. __ I (Reynolds dep.) at 32:6-16; Ex. P (Ward Jr. CMP Release) at 1; Ex. O

(Corcoran dep.) at 23:7-24 (discussing gates and that Ward would have entered through the VIP

window where the type of waiver he signed was presented), 25:7-18 (testifying racers like Ward

Jr. pay CMP either an entry fee at gate or season pass); Ex. B (Ward dec.) at 5. Ward Jr. paid

this fee in exchange for track and pit access, and not merely to spectate. Id. Importantly, the fee

Ward Jr. paid to ESS was in exchange for the right to access the track and participate in ESS

member events, and ESS received a portion of the fee paid to CMP by Ward Jr. to use the track.

Ex. O (Corcoran dep.) at 22:15-23:6; Ex. I (Reynolds dep.) at 26:2-16, 27:14-25, 29:15-30:4,

30:6-20; Ex. J (Miller dep.) at 9:22-10:7, 14:22-15:1; Ex. N (Ward Jr. ESS Release).

55. The Releases purport to immunize both ESS and CMP from liability for their negligence.

Ex. P (Ward Jr. CMP Release); Ex. N (Ward Jr. ESS Release).

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Case 7:15-cv-01023-DNH-TWD Document 71-22 Filed 04/11/17 Page 17 of 18

Respectfully submitted,

By: /s/ Judson Waltman


Judson Waltman
Texas State Bar No.: 00797621
Lanier Law Firm, P.C.
P.O. Box 691448
6810 FM 1960 West (77069)
Houston, Texas 77269-1448
(713) 659-5200
(713) 659-2204 (f)
Jud.waltman@lanierlawfirm.com

W. Mark Lanier, Esq.


Richard D. Meadow, Esq.
Evan M. Janush, Esq.
Zarah Levin-Fragasso, Esq.
Lanier Law Firm, P.C.
126 East 56th Street, 6th Floor
New York, NY 10022
(212) 421-2800
(212) 421-2878 (f)
wml@lanierlawfirm.com
rdm@lanierlawfirm.com
Zarah.levin-fragasso@lanierlawfirm.com

ATTORNEYS FOR PLAINTIFFS

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Case 7:15-cv-01023-DNH-TWD Document 71-22 Filed 04/11/17 Page 18 of 18

IN THE UNITED STATES DISTRICT COURT


NORTHERN DISTRICT OF NEW YORK

KEVIN A. WARD, SR. AND PAMELA )


WARD, INDIVIDUALLY AND AS )
ADMINISTRATORS OF THE ESTATE OF )
KEVIN A. WARD, JR., DECEASED )
)
Plaintiffs, ) Civ. Action No. 7:15-cv-01023
) DNH-TWD
vs. )
)
ANTHONY WAYNE STEWART, )
)
Defendant. )

CERTIFICATE OF SERVICE

I state under penalty of perjury that a copy of the foregoing Plaintiffs Statement of

Material Facts in Support of Their Cross-Motion for Summary Judgment and Response to

Defendants Motion for Partial Summary Judgment was served on the date set forth below

addressed to:

Brian D. Gwitt
Woods Oviatt Gilman LLP
1900 Main Place Tower
Buffalo, NY 14202

Richard Smikle
Angela Krahulik
Eric McKeown
Ice Miller LLP
One American Square, Suite 2900
Indianapolis, IN 46282

/s/ Judson Waltman


JUDSON WALTMAN
DATE: April 11, 2017

18