Assumption of Risk and the Death of Kevin Ward, Jr.

by Marvin L. Longabaugh

Kevin Ward, Jr., a 20-year-old sprint car driver was killed on August 9, 2014 at Canandaigua Speedway in an incident involving NASCAR star Tony Stewart.

Ward, who had climbed from his wrecked car, was struck on the track by Stewart's sprint car. Videotape footage suggests that Ward tried to confront the NASCAR star who was circling the track during a caution period after the accident. The two cars had collided while racing side-by-side on a previous lap.

In the aftermath of Ward’s tragic death, reports began to emerge that Stewart and Ward had experienced on-track conflicts in the past and that Stewart may have even threatened to run another driver over after a previous track incident.

Two years earlier, Stewart threw his helmet at Matt Kenseth following a wreck in a race and threatened to take him out during future races that year.

“I checked up twice not to run over him. And I learned my lesson there, and I’m going to run over him every chance I got until the end of the year. Every chance I got,” Stewart said following the August 2012 race, according to CBS News. Stewart later explained that he meant he was going to try to take Kenseth out during a race, not actually run him over.

In addition to the potential for criminal charges to be filed against Stewart, Ward’s estate will almost certainly seek civil relief at some point. At issue will be a fundamental question – did Kevin Ward, Jr. assume the risks that resulted in his death?

The underpinning of the assumption of risk doctrine, and particularly its use in sports injury cases, is best described by the language of Judge Cardozo in the seminal 1929 case Murphy v. Steeplechase Amusement Co., Inc., 166 N.E. 173 (N.Y. 1929):

Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball.

Judge Cardozo further explained that by choosing to ride a particular amusement park ride, the plaintiff, who had witnessed the ride's effect on the other patrons, "made his choice to join them. He took the chance of a like fate, with whatever damages to his body might ensue from such a fall. The timorous may stay at home." The assumption of risk doctrine can be described as the concept that an individual is barred from recovery for injuries resulting from an activity in which the individual realized the risks, but nevertheless voluntarily participated.

Assumption of risk has been commonly applied with respect to sporting activities. Courts have found that voluntary participation in sporting events relieves the defendant’s duty, in all but the most extreme cases, of protecting the plaintiff from a particular risk. Notable among these cases are Knight v. Jewett, 3 Cal.4th 296 (1992) (participation in a touch football game) and Turcotte v. Fell, 502 N.E.2d 964 (N.Y. 1986) (jockeys in a professional horse race).

As Knight v. Jewett suggests, assumption of risk applies even to amateur sports. But professional activities, not limited merely to sports, are subject to heightened degrees of assumption of risk analysis. Veterinarians treating sick animals, firefighters fighting fires, and cowboys rounding up cattle all voluntarily assume some risks when engaging in professional endeavors.

In fact, some courts have assigned a higher threshold for assumption of risk to professionals, noting that the court should make an assessment of the "skill and experience of the particular plaintiff” to determine what degree of risk awareness should be imputed to him or her. Maddox v. City of New York, 487 N.E.2d 553, 556 (N.Y. 1985). The Maddox court went on to recognize that "a higher degree of awareness will be imputed to a professional than to one with less than professional experience in the particular sport."

There can be little doubt that Kevin Ward, Jr. assumed some risks inherent to the sport of auto racing when he climbed behind the wheel and drove onto the track. But does participation in a dangerous sport relieve other drivers of their duty to use reasonable care? And did Ward modify the standard of reasonable care on the part of other drivers when he left his vehicle and stood in the middle of the track?

Knight is helpful in this analysis. There, the California Supreme Court held that a participant in a sport could be held liable if he engages in "reckless conduct that is totally outside the range of the ordinary activity involved in the sport." This language would suggest that Stewart’s liability in Ward’s death may be diminished by Ward’s extreme conduct in exiting his vehicle and confronting Stewart on the track. Conversely, Ward’s estate would likely argue that Stewart’s previous threats and his failure to avoid Ward show that his on-track conduct was equally, if not more, “reckless” and “outside the range of ordinary activity involved in the sport”.

Ward’s death is a human tragedy. His circle of family and friends will never be able to completely recover from the loss. But one would have to assume that Stewart, being human as well, will be haunted by this incident for the remainder of his life. In the coming years, one can expect this matter to be litigated fiercely and that all sports will strive to better define the scope of inherent risk and the lines between aggressive participation and reckless conduct.

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