NY Firefighter Cannot Sue Colleague For Vehicle Accident

A lawsuit filed by a volunteer firefighter who was injured in a rollover accident while responding to a reported structure fire, has been dismissed by a New York Supreme Court judge.

Robert E. Lee was injured on January 19, 2016 when he and Kyle M. Verstraete were responding in Kyle’s father’s truck. Both were members of the Marbletown Volunteer Fire Department at the time and Kyle was driving. Due to snow and slippery conditions, the truck “went over the guardrail and down embankment sixty feet, rolling over three times before coming to rest.”

Lee sued Kyle Verstraete for negligence, and claimed Kyle’s father Gary and the fire department were liable as well. The defendants moved to dismiss the suit claiming it is barred by the Volunteer Firefighter’s Benefit Law (VFBL) §19 and General Municipal Law (GML) §205(b). Lee then sought to amend his complaint to allege willful negligence and recklessness.

Acting Supreme Court Justice John B. Nesbitt denied Lee’s request to amend his complaint and granted the defendants’ motion to dismiss. In explaining the decision Judge Nesbitt wrote:

  • Even viewing the record evidence most favorably to plaintiff, the Court finds no triable facts upon which a jury could find that defendant Kyle Verstraete acted with conscious or reckless disregard of a perceptible and highly probable risk that his manner of vehicle operation would result in loss of control and crash of the vehicle.
  • To find otherwise would be counter-intuitive, inasmuch as he would be ignoring his own safety as much as his passenger’s.
  • So too, the environmental factors that ostensibly contributed to the accident – snow in the air impairing visibility, wet pavement impairing traction, and the sudden sharp road curve – were only evident or more pronounced as Verstraete proceeded northward toward the site of the house fire.
  • Whatever else may be said of Verstraete’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.
  • Accordingly, the complaint must be dismissed as against Kyle Verstraete as well as against Gary Verstraete. The VFBL are the exclusive remedy of a volunteer firefighter as against certain political subdivisions, as well as those persons or agencies “acting under governmental authority in furtherance of the duties or activities in relation to which a [line of duty] injury resulted.”

Here is a copy of the ruling:

Congrats to Brad Pinsky and his law firm on the victory on behalf of the fire department defendants!!!

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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