Sports Illustrated legal analyst Michael McCann joined Middays with MFB Monday to discuss the potential fallout regarding the death of sprint car driver Kevin Ward Jr. To listen to the interview, go to the MFB audio on demand page.
On Saturday night, NASCAR driver Tony Stewart hit and killed the 20-year-old Ward Jr. during a race at the Canadaigua Motorsports Park in upstate New York after Ward Jr. exited his car to confront Stewart following a crash.
While Ontario County Sheriff Philip Povero said that police officials are not treating the case as a criminal investigation, McCann said that he thought — after watching video of the accident — that there could be serious charges levied against Stewart.
“When watching the video, I definitely thought there’s the possibility of criminal charges,” McCann said. “The reality is that it just seems hard to believe that at a minimum, it wasn’t reckless driving. It may not have been intentional, but it could have been trying to scare Ward into backing off or something like that and he went too far. The reality is that’s not an accident. When you try to scare someone, there is some intent there. My read on looking at the video was that there’s at least a possibility of criminal charges, and I was surprised that the sheriff so quickly dismissed that possibility.”
McCann said that it would be difficult to prove that Stewart showed intent to hurt Ward based on the video, but added that there’s still a chance that Stewart could be charged with a variety of lesser, albeit serious, crimes.
“It’s going to be hard to show intent in terms of trying to hurt him, but there are lesser charges that are possible under New York law where there isn’t necessarily intent to hurt, but there’s intent to put somebody in danger, there’s intent to frighten someone and you go too far in doing so,” McCann said. “It could be much less than murder. As a result, my thought was that there could be lesser charges brought against him that aren’t murder but are still serious, and as a result, I was again surprised that the sheriff so quickly said that there’s nothing here.”
Even if no criminal charges are filed, McCann stated that it’s very likely that Ward’s family will file a civil suit against Stewart during the two-year period that they have to make the move.
“I think the odds are very high,” McCann said. “I say that because there’s a video, and the video is very damning. Also, under a wrongful death lawsuit, there’s only a requirement that there’s a preponderance of evidence, so more likely or not that he negligently caused the death of Ward and personally, looking at this video, it’s hard to say this is just an accident, some random freak occurrence. It wasn’t really a freak occurrence. It was somebody getting hit by a car while that car was going around the track and if it’s true that he revved up the engine, as it has been reported, I think that can be potentially very damning.
“My belief is that Stewart will try to avoid any type of litigation. He’ll try to reach an out-of-court settlement with the Ward family for some significant amount of money. He’s reportedly worth an excess of $100 million, so I have a feeling, just to avoid the controversy of going to trial and the embarrassment of it, they’ll try to reach an out-of-court deal.”
While the sheriff’s office may have insisted that no criminal charges will be issued in regards to the case, McCann said that there’s still a possibility that Stewart could face a charge of negligent homicide.
“I think there is the possibility of negligent homicide, which is accidentally causing the death of another through negligent conduct,” McCann said. “I think there’s a reason to believe that he drove recklessly or carelessly and again, he may not have been trying to hurt him, but that’s not the point. The test isn’t whether you try to kill him or hit him, it’s whether you try to drive in a way that was reckless or careless, and in doing so, hurt him.”
Even though most of the focus of the case has been spent on Stewart, McCann added that it’s important to take note of the fact that Ward is also at fault for getting out of his car in the middle of a racetrack.
“That’s a key point,” McCann said. “The reality is that, and everything I hear from drivers, is that you’re not supposed to leave the car and it was a mistake for him to do so. … It would hurt his family in terms of a wrongful death lawsuit. … I think there’s reason to think that Ward acted negligently himself. I think common sense tells you, no matter how angry you are, don’t leave your car in the middle of a race.”