This week’s case brings us to Wayne County, New York, sitting right off of Lake Ontario, about a 5-hour drive northwest from Manhattan and less than 50 miles west from Syracuse.
September is a great time of year to be up in Wayne County: on the 18th they have the Find the Wine! Corn Maze Wine Walk (Discover JD Wine Cellars & Black Button Spirit stations hidden throughout 5-acre corn maze); on the 15th is the 52nd Annual Palmyra Canaltown Days (Food, live music, crafts, market square, 5k run/walk, canal walks, car show, museum tours, wagon rides, pony rides, antiques and more..); from the 14th through the 29th is the Fall Festival Weekends at Long Acre Farms (Best time of the year at Long Acre Farms. Corn maze, pumpkins, hayrides, apple cider donuts, cider slushies); and, on the 14th, the Lincoln Fire Department Chicken BBQ (4pm until sold out.).
This is a case about volunteer firefighter, Robert E. Lee, who sued another firefighter, Kyle Verstraete, who was the driver of the truck they were riding in when it suddenly crashed on the way to a fire.
Location: Marbletown, a hamlet in the town of Arcadia, located in the center of Wayne County, NY.
Testimony of Robert E. Lee
Q: Let me bring you to the morning of January 19: What were you doing?
A: Well, sir, I was sleeping when I heard the town fire horn blast followed by my phone ringing.
Q: Did you answer the phone?
A: I did – I was informed by the dispatcher that there was a fire at a house on Lembke Road in Arcadia.
Q: What did you do next?
A: I got dressed and drove down to the firehouse in Marbletown to meet Kyle and pick up our gear. Kyle was waiting with his dad’s truck, which was equipped with emergency lights.
Q: So you got your gear?
A: We did, and we loaded it into the truck and headed northbound on Welcher Road.
Q: And what happened next?
A: Well, just before reaching the Norsen Road intersection, there is a warning sign facing northbound traffic, "90 Degree Curve" with a speed recommendation of 20 mph in the posted 45 mph speed zone.
Q: Can you tell us how fast Kyle was driving into that curve?
A: More than 20 mph!
Q: You sure about that?
A: Oh, yeah. He was moving at a clip.
Q: And what happened?
A: His dad’s truck slid into the opposite lane and across the road into a guardrail. The truck went OVER the guardrail and DOWN embankment sixty feet, rolling over THREE TIMES before coming to rest. We both got hurt pretty bad.
Cross-Examination
Q: Before the accident, you were on your way to a fire, right?
A: Yes, sir.
Q: Emergency lights were activated and operating?
A: Yes, sir.
Q: It was snowing that morning, right?
A: Yes, sir.
Q: Pavement was slippery?
A: Yes, sir.
Q: This was not your first fire, right?
A: No, sir.
Q: And you have first-hand experience with the damage and injuries fires cause?
A: Yes, sir.
Q: And you have personally witnessed the horrific injuries suffered by burn victims.
A: Yes, sir.
Q: And you would agree, Firefighter, that when responding to a fire, every second counts.
A: Yes, sir. But Kyle was….
Q: Nothing further, Your Honor.
Testimony of Firefighter Kyle Verstraete
Q: Now, Kyle, when you approached the intersection just before the accident, you saw the warning sign facing northbound traffic, "90 Degree Curve" with a speed recommendation of 20 mph in the posted 45 mph speed zone.
A: Yes, counselor, I did.
Q: How fast were you going at that time?
A: At the time of the accident, I was definitely going under the posted speed limit because of the snow. But I will say that I hit that curve too fast, obviously, or else we wouldn't have crashed.
Cross-Examination
Q: While you were driving the truck “TOO FAST” as you testified, you did not consider the safety of your brother, Robert; isn’t that true?
A: I was thinking about getting to the fire. I was thinking about people burning. I was thinking about people out in the cold with their home burnt to the ground.
Q: At ANY cost?
A: Sir, I was injured worse than your client. I just wanted to get to the fire; that’s all.
Robert E. Lee’s Attorney’s Closing Argument --
Your, Honor, Kyle did not exercise the appropriate standard of care in operating the truck. That failure to exercise the proper care was the proximate cause of the crash and Lee's resulting injuries. Finally, in failing to reduce his speed for a special hazard, the hazards being the snow, the intersection, and the sharp curve, Kyle’s actions bespeak conscious indifference to a highly probable risk that calamity would ensue. Kyle should be held responsible.
The Court’s Ruling
The Vehicle and Traffic Law section 1104e, states that an authorized emergency vehicle may operate outside normal Vehicle and Traffic Laws as long as they exercise due care.
There is NO EVIDENCE that Volunteer Firefighter Kyle Verstraete, acted without due care. Otherwise, he would be ignoring his own safety as much as his passenger's. So too, the environmental factors that contributed to the accident - snow in the air impairing visibility, wet pavement impairing traction, and the sudden sharp road curve - were only more pronounced as Kyle proceeded northward toward the site of the house fire. Whatever else may be said of Kyle's driving, it does not bespeak conscious indifference to a highly probable risk that calamity would ensue.
THE ACCIDENT WAS UNFORTUNATE BUT IS NOT ACTIONABLE.
Case dismissed – Kyle wins.
See you at the Corn Maze Wine Walk. Or see you next week.
Here is the case: http://www.courts.state.ny.us/reporter/3dseries/2019/2019_29270.htm