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Case 7:15-cv-01023-DNH-TWD Document 71 Filed 04/11/17 Page 1 of 4

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 CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT AND


RESPONSE TO DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT

PLEASE TAKE NOTICE, that Plaintiffs, by and through their counsel, The Lanier Law

Firm, shall move the Court before the Honorable David Hurd, United States Judge for the United

States District Court, Northern District of New York, Alexander Pirnie Federal Building, 10

Broad Street, Utica, New York 13501 on April 28, 2017 at 10:00 a.m., pursuant to Federal rule

of Civil Procedure 56 and Local Rules 56.1, 7.1(a)(3), and 7.1(c), and respectfully request that

the Court deny Defendants Motion for Partial Summary Judgment [Doc. No. 67] and grant

Plaintiffs Cross-Motion for Partial Summary Judgment.

Several reasons require the Court to deny Defendants Motion. First, Defendants

reliance on the Empire Super Sprint membership form (ESS Release) and the Canandaigua

Motorsports Park form (CMP Release) (collectively Releases) fails because New York

General Obligations Law 5-326 renders these Releases wholly unenforceable; the Releases

did not unambiguously identify Defendant as a released party; Defendant was never a member
Case 7:15-cv-01023-DNH-TWD Document 71 Filed 04/11/17 Page 2 of 4

entitled to enforce the ESS Release; and the CMP Release lacked mutuality between decedent

Kevin Ward, Jr. and Defendant.

Second, Defendant claims that indemnity language in the Releases bars the Wards

negligence and gross negligence claims and requires the Wards to indemnify Defendant.

However, Defendants Motion must be denied on this point because 5-326 renders these

indemnity provisions unenforceable; New York law precludes Defendant from using the

indemnity clauses as exemptions from liability for his gross negligence; the Wards first-party

claim against Defendant did not trigger the indemnity clauses; Defendant was not

unambiguously identified as an indemnitor under the Releases; and Defendant was never an ESS

member permitted to enforce the ESS Releases indemnity clause. Additionally, if the indemnity

clauses are enforceable, the Wards are likewise entitled to indemnity from Defendant for all

damages relating to his participation in the August 9, 2014 sprint car race.

Third, Defendant argues that the Wards lack sufficient evidence of Ward Jr.s conscious

pain and suffering. However, the summary judgment record shows that Ward Jr. consciously

suffered following initial impact with Defendants race car. And the only evidence proffered by

Defendant that could support summary judgment is that of Defendants expert pathologist.

Defendant has failed to demonstrate that his pathologist is qualified to ascertain whether Ward

Jr. died instantly, and the affidavit testimony is conclusory and unreliable.

Fourth, Defendant argues that the Wards lack sufficient evidence of Ward Jr.s pre-

impact terror. However, video evidence and eyewitness testimony easily demonstrate that Ward

Jr. braced himself for the severe impact and even made a desperateyet futileattempt to

scramble out of the path of Defendants car. This evidence defeats Defendants Motion on that

point.
Case 7:15-cv-01023-DNH-TWD Document 71 Filed 04/11/17 Page 3 of 4

Finally, all of Defendants claims or defenses that rely on any language in the Releases

fail as a matter of law. Thus, as a matter of law, the Releases do not bar claims for simple

negligence, gross negligence or reckless conduct, or intentional acts. Additionally, Defendants

counterclaim for indemnity fails as a matter of law.

For these reasons, which are further supported by Plaintiffs contemporaneously-filed

Memorandum of Law and summary judgment evidence, Plaintiffs respectfully request that the

Court deny Defendants Motion for Partial Summary Judgment [Doc. No. 67] and grant

Plaintiffs Cross-Motion for Partial Summary Judgment.

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


Case 7:15-cv-01023-DNH-TWD Document 71 Filed 04/11/17 Page 4 of 4

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 Cross-Motion for

Partial 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