NY state penal code throws out the vehicle & traffic law as it pertains to the events because V&T law only governs the roadways within the state. If it governed racing, everyone in racing would be in violation every time they got on the track.
NY state penal code also states that if the victim's behavior plays a significant role in the outcome, there's likely to be a no-fault judgement issued, or that the DA declines to press charges.
Ward signed a waiver before ever setting foot on the track. The waiver states those who participate may be injured or killed during the course of the events. In order to get his license to race (and yes they do have licensing) he also was made aware of the risks, and the rules. The rules state you are to remain with your vehicle until safety crews are on scene, the ONLY exception is if your vehicle is on fire, and then you are to exit in a safe manner and go to the nearest safety barrier - either inside or outside. As he was against the outside wall, the proper response on the part of the victim should have been to stay with his vehicle until safety crews arrived and the race was slowed to a safer speed. Once he made the decision to step foot out of his vehicle against the rules of the track, and the fact he not only exited his vehicle he walked into the path of the oncoming cars that had not yet been slowed to normal caution speed.
It is normal for cars on a track with any banking to have to accelerate slightly to maintain fuel pickup into the corners. Other drivers in the series have said this is a possible reason for Stewart's acceleration. Its also possible Stewart meant to scare Ward by flinging dirt in his face, the ONLY one who knows that is Stewart. Intent to fling dirt is one thing, intent to kill is another. The law is very specific and states that intent MUST be to kill or gravely wound - for most of the more serious charges. That said it is entirely within the realm of the law as it stands in NY state where the incident took place, for the DA to convene a grand jury and see if there's enough evidence to support bringing charges for a lesser crime such as reckless manslaughter. But the grand jury would need to consider the victim's actions as well as those of Stewart to know whether the evidence supports the charge to be brought to trial.
By adding Ward's own decisions to (1) exit his vehicle (2) walk into not-yet-caution speed traffic (3) continue stepping closer and closer to Stewart's car until the inevitable happened, the grand jury would have to look at "if the victim did not act in the way he did, would the incident have occurred?" In this case, most likely not. If you remove Ward's behavior the incident isn't an incident other than 'rubbin's racing'.
The question I see no one asking is "If this were any other driver in the world, other than a big name like Stewart, would anyone be paying any attention?" If the incident were between to small town dirt track drivers, who the majority of the world had never heard of, would you be having this discussion here? Would people be suggesting that the driver who struck the victim be sentenced to death - in a state that doesn't have the death penalty? Would we even be having these types of discussions if the initial report from the Sporting News (who was the first site to post the story), had phrased their article title differently? What if they'd phrased the story as "Local dirt track driver killed in on track incident," or "Local driver injured in on track incident, dies at hospital," or ANY other phrasing than the inflammatory headline they used "Young dirt driver struck and killed by Tony Stewart," because blood sells, and they didn't give who shits about the family of the deceased who may not have been at the track and not yet gotten word that Ward had died.
Is it a sad, tragic incident? Hell yes. But there were two adults who signed their waivers, and there were 2 adults who made decisions that night. One of them has to live with the outcome, the other lost his life, because of the decision he made to set foot out of his vehicle in an attempt to showboat.
My hope for it all - that there's an awareness that goes through the sport in general, that you're safer in the car, than you are out on the track. That if you exit your vehicle without safety crews there, and your car isn't on fire, that you should be fined, or should sit out a few weeks, to know what your actions could have cost you...like they did for Ward.
My heart goes out to the families of those involved and that those who feel like playing judge & jury or convicting Stewart without even a trial, are sure their closets are secure of all skeletons before talking.