I’m not a fan of NASCAR or racing generally. But I did recently find out that driver Tony Stewart killed another driver named Kevin Ward after the latter got out of his car and walked onto the track during a sprint car race. It appears that Stewart hit Ward’s car, causing it to spin out and become inoperable. Ward then physically left his car and walked out on to the track, appearing to be waiting for Stewart’s car to come back around, at which point, Stewart hit Ward, killing him.
When a prosecutor is trying to determine whether there’s probable cause to charge someone with a crime, they generally need two things: an actus reus (evil act) and a mens rea (evil mind). In this case, we have a clear actus reus: a violent, harmful contact was made with Kevin Ward’s body, causing his death. The question is whether there’s enough evidence of a culpable mens rea to arrest Tony Stewart for criminal homicide.
Here are some of the eyewitness accounts, aggregated by Deadspin at the link above:
Rich Willis, who was at the track, said he didn’t see exactly what happened but his sister down in Turn 1 did. He saw Stewart and Kevin Ward get into the wreck.
"People (who could see it better) said the guy got out of his car and was gesturing angrily at Tony Stewart when Tony Stewart came by during the next lap under yellow,” Willis said in a phone interview. “He approached him and evidently when he was driving by the guy standing on the track gesturing at him, he gunned his engine.
"What happened was the back end kicked out and clipped the guy and the guy flew across the track."
Tyler Graves, a sprint-car racer and friend of Ward’s, told Sporting News in a phone interview that he was sitting in the Turn 1 grandstands and saw everything that happened.
"Tony pinched him into the frontstretch wall, a racing thing," Graves said. “The right rear tire went down, he spun on the exit of (Turn) 2. They threw the caution and everything was toned down. Kevin got out of his car. … He was throwing his arms up all over the place at Tony for most of the corner.
"I know Tony could see him. I know how you can see out of these cars. When Tony got close to him, he hit the throttle. When you hit a throttle on a sprint car, the car sets sideways. It set sideways, the right rear tire hit Kevin, Kevin was sucked underneath and was stuck under it for a second or two and then it threw him about 50 yards."
Speaking purely as a criminal law practitioner, the video at the link above combined with these eyewitness statements (assuming they can all be authenticated and admitted into evidence) appears to provide probable cause to indict Tony Stewart for either negligent or intentional homicide in New York (though the latter would be much harder to prove). In New York, negligent homicide could be indicted as either Criminally Negligent Homicide, or Manslaughter in the Second or First Degree. Intentional homicide would be indicted as Murder in the Second Degree.
To convict Tony Stewart of Criminally Negligent Homicide or Manslaughter, prosecutors need to prove beyond a reasonable doubt that Stewart was criminally negligent. The “Torts 101” summary of ordinary negligence requires four elements:
- Duty (the defendant owed a duty of care under the circumstances to the victim)
- Breach (the defendant breached their duty of care)
- Causation (the defendant’s breach of the duty of care is the proximate cause of the victim’s injuries)
- Damages (the victim’s person or property was injured).
These four elements are often summed up as the “Reasonable Person” standard: a person is negligent under the law if a reasonable person under the circumstances would not have taken the risk(s) taken by the defendant, and by taking the risk, the defendant caused damage to someone else’s person or property.
In addition to this, there is also a difference between civil negligence and criminal negligence. Courts are fond of pointing out this difference, but in practice, they rarely provide a meaningful distinction. The best description of these two concepts is probably the one given by Lord Hewart in the old english case of R v. Bateman:
In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to a crime, judges have used many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’, ‘clear’, ‘complete’. But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment.
So the prosecutor has to prove beyond a reasonable doubt that (1) Tony Stewart was negligent (i.e. that Tony Stewart breached a duty of care to Kevin Ward, causing Kevin Ward’s death), and (2)that the degree of negligence shown by Stewart was sufficiently gross or shocking to warrant criminal punishment rather than mere civil remuneration.
In addition to all that, if prosecutors wanted to charge Stewart with Manslaughter in the Second Degree, they would have to show that Stewart’s conduct was not merely negligent, but reckless (i.e. that Stewart showed a “wonton disregard for human life.”) The line between criminal negligence and recklessness is admittedly pretty thin, but on paper, the latter is a tougher burden to meet. If prosecutors wanted to charge Stewart with First Degree Manslaughter instead, they would also have to prove that Stewart acted with “intent to cause serious injury” to Ward (but not to kill him).
In this case, we have eye witness statements claiming there was a dispute between Ward and Stewart, which gives Stewart motive. We have eyewitness statements saying that Tony Stewart throttled his car as he approached Ward. We also have eye witness statements from a person who prosecutors might be able to qualify as an “expert witness” stating that it’s a well-known fact in the racing community that sprint cars “set sideways” when you throttle them. And we have a video that shows most (but not all) of this occurring.
This gives prosecutors enough evidence to build a criminal case against Tony Stewart, assuming that all of these eyewitness reports are genuine. They can establish duty and breach with expert testimony from the witness who discussed how Sprint cars behave when the throttle is pushed. They can establish causation with the video, and damages with Tony Ward’s death certificate. This is enough to get to criminal negligence by default, since that determination is largely one that rests with the jury. Intent to injure could be proved by the video (several cars managed to pass Ward without hitting him, and the caution signal was up), setting up First Degree Manslaughter.
Keep in mind that I am not saying a criminal case should be brought against Tony Stewart. There are plenty of reasons not to. For example, much of this case would turn on eyewitness testimony (based on the evidence currently available), and I’d be very uncomfortable subjecting anyone to criminal sanctions in a case where the government relies so heavily on eye witness testimony. In addition, it seems reckless for Ward to have physically left his car while the race was still in progress, before emergency crews had an opportunity to get over to him. In the video, Ward almost seems like he’s trying to position himself in front of Stewart’s car. So there’s just too many moving parts in this scenario for me to say beyond a reasonable doubt that Tony Stewart acted with the requisite mens rea to commit a criminally negligent homicide.
Now this is an entirely different question from whether Kevin Ward’s family should bring a wrongful death suit against Tony Stewart. As I mentioned earlier, civil negligence is a lower standard of mental culpability than criminal negligence, and the burden of proof in civil cases is also lower. In a civil case, the Plaintiff need only prove that Tony Stewart’s negligence by a “preponderance of evidence,” i.e. more likely than not. 51% certainty is enough in a civil case. It’s not enough in a criminal case, however.