NY Firefighter Struck By Motorist Prevails

A New York Supreme Court judge has found that a driver who struck a firefighter directing traffic at the scene of a vehicle accident, is liable to the firefighter and his wife for his injuries.

Kyle J. Pierce, a volunteer firefighter with the Sherburne Fire Department, was directing traffic at an accident scene on November 15, 2016 when he was struck by a vehicle operated by Thomas O. Bigelow.  Pierce and his wife sued Bigelow for the damages they sustained. Mrs. Pierce was forced to take a month off from work to care for her husband, who required multiple surgeries. 

According to the decision, the accident happened as follows:

  • On November 15, 2016, Plaintiff Kyle J. Pierce was a volunteer firefighter with the Sherburne Fire Department.
  • In response to a two-vehicle accident, the Chief of the Sherburne Fire Department instructed Plaintiff to close the affected road at the intersection of Blanding Road and Route 12 in Sherburne, New York.
  • Plaintiff was stopping traffic coming from Blanding Road, as well as the southbound traffic on Route 12.
  • Plaintiff and another firefighter were each wearing an ANSI approved warning vest and full turnout gear, including a helmet.
  • Each carried a lighted, colored traffic wand used to warn and stop traffic.
  • Defendant was driving his vehicle south on Route 12 when he struck Plaintiff.
  • Defendant testified at his deposition that he was able to see flashing lights and cones in the southbound lane a quarter of a mile before the accident.
  • Plaintiff was pushed down below the front tire and, according to this other firefighter, Plaintiff’s legs were run over.
  • After stopping his vehicle, Defendant saw Plaintiff laying in the road and writhing in pain.
  • Plaintiff suffered a comminuted fracture to the right tibia and fibula along with other injuries.
  • Defendant admitted to being convicted of unsafe speed.

According to the complaint, Bigelow violated numerous traffic laws. He nevertheless sought to avoid liability through a series of procedural maneuvers including alleging Pierce failed to claim he sustained a “serious injury” and an ambiguous allegation relating to the fact his negligent driving was not the “sole proximate cause” of Pierce’s injuries, implying Pierce himself was partially responsible for his injuries.

Judge Brian D. Burns made short work of Bigelow’s defenses:

  • Defendant correctly states that [NY law] requires that for personal injuries arising out of negligence in the use or operation of a motor vehicle in this State, the complaint must state that the plaintiff has sustained a serious injury.
  • Defendant… overlooks the fact that Plaintiffs clearly state in the Amended Verified Complaint that Plaintiff was diagnosed with and treated for a comminuted fracture in his right tibia and fibula.
  • As Defendant is aware … a fracture is a serious injury…
  • As a result, Plaintiffs did state … that Plaintiff sustained a serious injury by identifying the specific type of serious injury that was sustained.
  • Defendant alleges that he has raised questions as to whether Plaintiff was the sole proximate cause of the accident.
  • In support of that assertion, Defendant has submitted the report of his accident reconstruction expert.
  • The expert opines that Plaintiff did not act in accordance with his training by placing himself in a hazardous location in suboptimal conditions.
  • He goes on to state that such actions made it more difficult for oncoming traffic to perceive and react to Plaintiff’s presence.
  • The opinions are irrelevant, since … comparative fault cannot be used as a defense against a General Municipal Law Section 205-a claim.
  • Defendant’s attempt to re-characterize his attempted use of this defense as an issue of proximate cause is unavailing.

Judge Burns then went on to grant summary judgment to the Pierces on three of the eight counts alleged in the complaint. In essence, this means Bigelow will be liable to the Pierces, with the sole remaining question: how much will he have to pay.

Pierce’s attorney, who happens to be my good friend and colleague, Brad Pinsky, told me: “The only remaining issues in the case relate to damages. We have claims related to the fact Mr. Pierce had a fear of impending death before and after being struck, as well as pain and suffering that are still to be decided. We are going to see if defendant will agree to stipulate to the facts of these and we will move for summary judgement on damages.”

Here is a copy of the ruling:

Congratulations to Brad and his firm, Pinsky Law Group, PLLC on the victory.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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