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Family of Kevin Ward Jr. responds to Tony Stewart motion

Tony Stewart could have avoided hitting Kevin Ward Jr. if he had just run the line that the six drivers in front of him did while under caution, the Ward family alleges in court documents filed Tuesday.

Stewart's car struck and killed the 20-year-old driver on Aug. 9, 2014, in an Empire Super Sprints race at Canandaigua (N.Y.) Motorsports Park after Ward had gotten out of his wrecked car and walked on the track toward the cars as they ran under caution.

The parents of Ward filed a wrongful death lawsuit in August 2015 against Stewart and filed a response Tuesday to a Stewart motion for summary judgment. A hearing is scheduled for April 28 in U.S. District Court in Utica, New York.

"Stewart confessed that he did not need to throttle his car to make it turn," Ward's family said in its response, citing a Stewart deposition. "Anticipating the impact, Ward Jr. put his hands up in a defensive position and desperately scrambled to get out of the way. ... 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."

Stewart's motion included a crash reconstruction analysis that concluded he did not have time to react to seeing Ward, whose path was unpredictable as he stepped in front of Stewart's car. The Stewart expert stated that Ward would have been initially struck by another part of the car rather than the rear wheel if Stewart had driven toward Ward. Stewart, who was not criminally charged in the accident, testified in the deposition that he attempted to swerve away from Ward at the last minute, and that the driver in front of Stewart as well as a corner worker testified that Stewart did not have time to avoid Ward.

The Wards filed a crash analysis on Tuesday, written by Gordon Engineering, that offered different conclusions. The analysis said Stewart reacted differently than the other cars ahead of him, while Ward "remained relatively stationary and remained outside the path where six preceding sprint cars had passed."

"It is apparent Mr. Stewart intentionally caused his vehicle to move toward Mr. Ward by aggressively adding throttle input while counter steering through the turn," the report states. "Mr. Stewart's [car's] speed, acceleration, heading angle and vehicle path towards Mr. Ward was different than the six cars that passed Mr. Ward's location without incident."

Jessica Zemken-Friesen, Stewart's ex-girlfriend, testified in a deposition that she was riding behind Stewart and didn't believe Ward "was going after his vehicle. I just saw him gesturing towards him."

She said in the deposition that she didn't see how Stewart moved the steering wheel but that he turned toward Ward and that Stewart would have missed Ward if he had run the line of the other cars. Two safety workers also testified that Stewart's car moved toward Ward, according to questioning in Stewart's deposition.

"I could see Tony's left front wheel turn to the right, closer in the direction of where Kevin was up higher onto the racetrack. ... I could see Kevin still there in front of his car with his hands in the air," she said in the Aug. 18 deposition. "And I saw the rear of the car stand up and the dust come off the rear tires as Tony hit the throttle.

"When he hit the throttle, the rear of the car came around and the front end of the car went to the left, the car got sideways and he struck Kevin."

In New York, survivors can get compensated for the victim's pain and suffering, as well as fear of impending death. The Ward motion disputes the Stewart conclusion that Ward died on impact and also disputes the Stewart claim that Ward had no fear prior to his death, where toxicology reports indicate that Ward had enough marijuana in his system to influence his actions.

"Video evidence and eyewitness testimony easily demonstrate that Ward Jr. braced himself for the severe impact and even made a desperate -- yet futile -- attempt to scramble out of the path of [Stewart's] car," the Ward motion states.

The Wards cite the personal history of the three-time NASCAR Cup champion as evidence that Stewart would try, at the very least, to intimidate their son. They include five NASCAR penalty reports totaling $90,000 in fines as part of that evidence. Stewart, in his deposition, confirmed that he punched Kurt Busch in a NASCAR hauler -- "Basically, he was antagonizing us in front of the NASCAR officials and very inappropriately," Stewart said -- in February 2008 at Daytona.

"This case exemplifies what happens when a superstar race car driver with a documented history of violence on and around the track races against competitive amateurs who refuse to be bullied," the Ward filing states. "In this case, Defendant Tony Stewart plays the part of the volatile superstar.

"Although Stewart is a highly skilled driver who easily could have avoided killing Ward Jr., he also has a storied history of violence both on and off of the track."

Stewart, in his deposition, disputes the theory that he might have tried to spray mud on Ward, a driver Stewart said he didn't know and wouldn't have recognized prior to the race.

"You can't throw mud forward," Stewart said. "It would throw it backwards, and there wasn't any mud to throw in the first place. ... I wasn't trying to slide anywhere. I was trying to drive underneath him and get away from him."

In his motion, Stewart asks that three of the four claims by the Wards be thrown out because of waivers signed prior to the event and that only whether he acted in a reckless manner be reserved for trial.

The Wards challenge whether Stewart can ask for those waivers to be enforced in part because there is no record of him having paid for a license to race in an ESS event.

The Wards have not specified an amount of damages they seek. A judge has previously ruled that Stewart's insurance company will not have to cover him because the policy did not include ESS events, a ruling that Stewart initially appealed but eventually dropped.

Mediation in the case is scheduled for April 18.