United States District Court, N.D. New York
KEVIN A. WARD, SR. and PAMELA WARD, individually and as Administrators of the Estate of Kevin A. Ward, Jr., deceased, Plaintiffs,
ANTHONY WAYNE STEWART, Defendant.
LANIER LAW FIRM Attorneys for Plaintiffs
LANIER LAW FIRM Attorneys for Plaintiffs
OVIATT GILMAN LLP Attorneys for Defendant
MILLER LAW FIRM Attorneys for Defendant
A. WALTMAN, ESQ. BENJAMIN T. MAJOR, ESQ. EVAN M. JANUSH, ESQ.
RICHARD D. MEADOW, ESQ. WILLIAM M. LANIER, ESQ. ZARAH
LEVIN-FRAGASSO, ESQ. BRIAN D. GWITT, ESQ. ANGELA P. KRAHULIK,
ESQ. ERIC J. MCKEOWN, ESQ. RICHARD A. SMIKLE, ESQ.
MEMORANDUM-DECISION AND ORDER
N. HURD UNITED STATES DISTRICT JUDGE
Kevin A. Ward, Sr. and Pamela Ward (collectively
"plaintiffs") filed this wrongful death action in
state court after defendant Anthony Wayne Stewart
("Stewart" or "defendant") struck and
killed their son, Kevin A. Ward, Jr. ("Ward"),
during a sprint car race.
removed plaintiffs' suit to federal court and asserted an
indemnification counterclaim based on two liability releases
(the "Releases"). Defendant then tried, and failed,
to have the case transferred to the United States District
Court for the Western District of New York, Rochester
Division. Ward v. Stewart, 133 F.Supp.3d 455
the parties completed fact discovery and Stewart moved for
partial summary judgment. Although he did not challenge
plaintiffs' claims alleging reckless or intentional
conduct, defendant argued that any negligence-based causes of
action were barred by the Releases or, alternatively, by the
doctrine of primary assumption of risk.
opposed Stewart's partial summary judgment motion and
cross-moved seeking dismissal of defendant's counterclaim
for indemnification. According to plaintiffs, the Releases on
which this counterclaim relied were either inapplicable to
the particular facts of this case or completely unenforceable
as a matter of state law.
December 12, 2017, a Memorandum-Decision & Order resolved
these issues. Ward v. Stewart, __ F.Supp.3d __, 2017
WL 6343534 (N.D.N.Y. Dec. 12, 2017) (the "December
Order" or the "Order"). As relevant here, the
December Order invalidated the Releases, dismissed
Stewart's counterclaim, and concluded that disputed
issues of fact precluded resolution of defendant's
assumption-of-risk defense without the aid of a jury.
December 22, 2017, Stewart moved pursuant to 28 U.S.C. §
1292(b) seeking to certify certain portions of the December
Order for interlocutory appeal or, in the alternative, for
the entry of partial final judgment on his now-dismissed
counterclaim pursuant to Federal Rule of Civil Procedure
("Rule") 54(b). Plaintiffs opposed. The motion has
been fully briefed and will be decided on the basis of the
submissions without oral argument.
contends this Court should sanction an immediate appeal from
the December Order principally because its holding upsets
"decades of uniform and consistent law in New York
accepting the validity of releases signed by automobile
racing participants." Def.'s Mem. at
As he tells it, the Order threatens to end "the entire
automobile racing industry in the State of New York."
hyperbolic account of the possible ramifications of the
December Order on New York motorsports is apparently borne of
necessity-Stewart's decision to remove this litigation
from state court prevents him from taking an immediate appeal
unless he can demonstrate the existence of certain,
civil practice in many state courts, federal appellate
jurisdiction is generally limited to review of only the
"final decisions" of the district courts.
Compare Cobbledick v. United States, 309 U.S. 323,
324 (1940) ("Finality as a condition of review is an
historic characteristic of federal appellate
procedure."), and Koehler v. Bank of Bermuda
Ltd., 101 F.3d 863, 865 (2d Cir. 1996) ("It is a
basic tenet of federal law to delay appellate review until a
final judgment has been entered."), with Nat'l
Asbestos Workers Med. Fund v. Philip Morris, Inc., 71
F.Supp.2d 139, 150 (E.D.N.Y. 1999) (Weinstein, J.) ("In
New York, for example, a party can appeal almost any
interlocutory trial court order that relates to the merits of
the case or that affects a substantial right."),
and Richard C. Reilly, Practice
Commentaries, C5701:1, N.Y.C.P.L.R. § 5701
("[A]s a general rule almost anything can be appealed to
the appellate division . . . .") (McKinney's 2015).
final-judgment rule, now codified in [28 U.S.C. § 1291],
preserves the proper balance between trial and appellate
courts, minimizes the harassment and delay that would result
from repeated interlocutory appeals, and promotes the
efficient administration of justice." Microsoft
Corp. v. Baker, 137 S.Ct. 1702, 1712 (2017) (citing
Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
368, 374 (1981)); see also Nat'l Asbestos Workers
Med. Fund, 71 F.Supp.2d at 149 (observing that the
final-judgment rule preserves, inter alia, "the distinct
and vital role of the trial judge in the federal
§ 1291 Congress has expressed a preference that some
erroneous trial court rulings go uncorrected until the appeal
of a final judgment, rather than having litigation punctuated
by 'piecemeal appellate review of trial court decisions
which do not terminate the litigation.'" Fischer
v. N.Y. State Dep't of Law, 812 F.3d 268, 273 (2d
Cir. 2016) (quoting United States v. Hollywood Motor Car
Co., 458 U.S. 263, 265 (1982)).
with nearly every rule, there are exceptions. Stewart
identifies two as being relevant in this case: Section
1292(b)'s procedure for certifying a nonfinal order for
interlocutory appeal and/or the entry of partial final
judgment under Rule 54(b).
1958, Congress created a "procedure for establishing
appellate jurisdiction to review nonfinal orders in civil
actions." Interlocutory Appeals in the Federal
Courts Under 28 U.S.C. § 1292(b), 88 Harv. L. Rev.
607, 609 (1975).
relevant here, the statutory enactment vests a district court
with discretion to certify an order in a civil action for
immediate appeal if (1) it "involves a controlling
question of law" (2) "as to which there is
substantial ground for difference of opinion" and (3)
"an immediate appeal from the order may materially
advance the ultimate termination of the litigation." 28
U.S.C. § 1292(b).
proponents of an interlocutory appeal have the burden of
showing that all three of the substantive criteria are
met." In re Facebook, Inc., IPO Sec. &
Derivative Litig., 986 F.Supp.2d 524, 529 (S.D.N.Y.
2014) ("In re Facebook"). However,
"even where the three legislative criteria of [§
1292(b)] appear to be met, district courts retain
'unfettered discretion to deny certification' if
other factors counsel against it." Id. (quoting
Transp. Workers Union of Am., Local 100, AFL-CIO v. N.Y.
City Transit Auth., 358 F.Supp.2d 347, 351 (S.D.N.Y.
courts have repeatedly observed, § 1292(b) "was not
intended to open the floodgates to a vast number of appeals
from interlocutory orders in ordinary litigation or to be a
vehicle to provide early review of difficult rulings in hard
cases." Primavera Familienstifung v. Askin, 139
F.Supp.2d 567, 570 (S.D.N.Y. 2001) (internal citation and
quotation marks and citation omitted). Instead,
"[c]ertification is only warranted in 'exceptional
cases, ' where early appellate review 'might avoid
protracted and expensive litigation.'" Id.
contends two issues warrant § 1292(b) certification:
1. Whether the Court correctly determined that the Releases
are unenforceable pursuant to Section 5-326 of New York's
General Obligations Law.
2. Whether the Court correctly denied Stewart's motion
for partial summary judgment as to Plaintiffs' negligence
claims, based on its finding that there were questions of
fact regarding Ward, Jr.'s assumption of the risk.
outset, these issues do not stand out as the kind of
"exceptional" ones seemingly contemplated by §
1292(b). Whether considered individually or in combination,
they appear on their face to be precisely the sort of
run-of-the-mill litigation disputes that are raised (by
parties) and resolved (by trial courts) during the course of
nearly any civil matter.
framing the issues in this way, Stewart signals that his
desire for an immediate appeal is based on simple
disagreement: either the December Order answered these
questions wrong, or that the questions themselves are
difficult to answer when applied to the facts of this case.
neither of those arguments are of a type that would
ordinarily provide a basis for immediate appeal under §
1292(b). Weber v. United States, 484 F.3d 154, 159
n.3 (2d Cir. 2007) ("Congress did not intend 28 U.S.C.
§ 1292(b) to serve an error-correction function.");
Williston v. Eggleston, 410 F.Supp.2d 274, 276
(S.D.N.Y. 2006) ("Interlocutory appeal was not intended
as a vehicle to provide early review of difficult rulings in
hard cases . . . . ").
because the federal policy restricting interlocutory appeals
to only truly "exceptional" situations aligns with
a simple reality: even incorrectly decided, a nonfinal order
partially denying summary judgment-like the December Order at
issue here-is generally of no immediate consequence to anyone
other than the parties themselves. See, e.g.,
Camreta v. Greene, 563 U.S. 692, 709 n.7 ("A
decision of a federal district court judge is not binding
precedent in either a different judicial district, the same
judicial district, or even upon the same judge in a different
case."); Oneida Indian Nation of N.Y. v. Pifer,
840 N.Y.S.2d 672, 674 (N.Y. A.D.3d Dep't 2007)
("Federal court rulings on issues of state law are not
binding on state courts.").
other words, even assuming the December Order overlooked,
failed to apply, (or, as Stewart's moving papers suggest,
disregarded), a "well-established
exception" to the applicability of § 5-326 of New
York's General Obligations Law, then the Order itself
poses no danger at all-other courts considering the issue
will surely locate the exception and are free to apply it in
appropriate cases. Cf. Transp. Workers Union of
Am., Local 100, AFL-CIO, 358 F.Supp.2d at 354
("Certification is to be reserved for the exceptional
case in which the law is fundamentally uncertain.").
bigger problem for Stewart's argument, though, is that no
such blanket "motorsports-participation" exception
to § 5-326 exists. Among other things, a party seeking
§ 1292(b) certification may demonstrate there is
"substantial ground for difference of opinion" on a
controlling question of law by showing "there is genuine
doubt as to whether the district court applied the correct
legal standard in its order." In re Facebook,
986 F.Supp.2d at 540.
order to make this determination, "the district court
must analyze the strength of the arguments in opposition to
the challenged ruling in order to determine whether the issue
for appeal is truly one on which there is a substantial
ground for dispute." Jackson v. Caribbean Cruise
Line, Inc., 88 F.Supp.3d 129, 142 (E.D.N.Y. 2015)
(citation and internal quotation marks omitted).
analysis begins, again, with the language of the relevant
provision itself. Section 5-326 of New York's General
Obligations Law provides that:
[e]very covenant, agreement or understanding in or in
connection with, or collateral to, any contract, membership
application, ticket of admissions or similar writing, entered
into between the owner or operator of any pool, gymnasium,
place of amusement or recreation, or similar establishment
and the user of such facilities, pursuant to which such owner
or operator receives a fee or other compensation for the use
of such facilities, which exempts the said owner or operator
from liability for damages caused by or resulting from the
negligence of the owner, operator or person in charge ...