KINGSTON — A King County Superior Court judge ruled March 2 that North Kitsap Fire & Rescue was negligent in the crash that caused the death of a motor scooter rider in 2014.

Judge Ken Schubert also rejected the fire district’s argument that the lawsuit was frivolous. But Schubert ruled that a jury would determine whether the rider of the Yamaha YP400 Majesty scooter, Jason T. Foster of Suquamish, shared any fault for the crash.

The trial is tentatively scheduled for May 1.

Nathan P. Roberts, co-counsel for Foster’s family, said two settlement conferences were unsuccessful. Roberts said the family is still open to a settlement, but “with the facts in the case, we’re happy to have our day in court.”

Kitsap Daily News left a message on March 6 for Terence J. Scanlan, NKF&R’s attorney.

Foster was killed when his motorscooter crashed into the front driver’s side of a NKF&R fire truck, July 4, 2014 at Miller Bay Road and West Kingston Road. According to the investigation report, the fire engine was approximately 3.6 feet in the oncoming lane — northbound Miller Bay Road — when Foster’s scooter crashed into the front left of the engine.

Foster’s family alleges that NKF&R and Scott Sommers, the firefighter behind the wheel of the engine when the crash occurred, were negligent. The lawsuit is filed in King County because that’s where Sommers lives.

Specifically, the lawsuit alleges Sommers did not drive the truck in a “reasonable and safe manner, failed to pay attention, failed to keep a proper lookout, and failed to yield.”

The lawsuit also alleges NKF&R failed to “properly hire, train, supervise and drug test its employees.” A blood test determined Sommers had a carboxy-THC level of 6.3 nanograms per milliliter of blood in his system at the time, indicating he is a cannabis user. However, carboxy-THC is non-active and stays in a person’s system for “several days,” according to the investigation report. Hydroxy-THC is active and is what causes impairment and euphoria; that was not in the driver’s blood, according to the report.

NKF&R and Sommers have denied the allegations of negligence.

A Kitsap County sheriff’s investigator found Sommers “failed to give right of way” and, in a 303-page investigation report, recommended he be cited for failure to “keep right except when passing, etc.”

Kitsap County Prosecutor Tina Robinson evaluated the case for vehicular homicide, but determined there was insufficient evidence. She called the crash “a very tragic accident.” One of the Foster family’s attorneys said in response, “Case law is clear — when you fail to yield the right of way, you’re negligent.”

HOW THE CRASH OCCURRED

According to the investigation report: The fire engine was returning from a structure fire. The occupants — the firefighter behind the wheel and a fire lieutenant in the passenger seat — stopped at NKF&R headquarters on Miller Bay Road to resupply the engine and were returning to their station, Station 85 on South Kingston Road.

The engine came to a full stop in the southbound left-turn lane of Miller Bay Road, waiting to turn onto West Kingston Road. Sommers began to make the left turn, but stopped when he saw two bicyclists approaching the intersection in the northbound lane.

As he waited, all lights for southbound Miller Bay Road turned yellow.

The bicyclists made a hard stop on their end of the intersection. Lights then turned red for southbound traffic.

“That’s when I looked up, saw that the yellows had gone completely red … and started to move forward, took my foot off the gas and immediately [the lieutenant] said ‘stop’ and that’s when I looked back up at the bicyclists,” Sommers told investigators.

At that point, the cyclists told investigators, Foster passed them on their left and entered the intersection. The engine was at a complete stop when Foster’s scooter crashed into it, according to the investigation report.

“Based on the investigation, it was obvious both occupants [of the engine] were focused on the actions of the bicyclists,” the investigator wrote.

WHAT WITNESSES SAW

The fire lieutenant said he told Sommers to brake because he saw approaching bicyclists and wasn’t sure if the engine had enough time to turn without cutting them off.

The lieutenant said he was focused on the bicyclists and never saw Foster enter the intersection. Then he felt the impact and realized the engine had been struck by another vehicle.

Both cyclists said they believe the northbound lights were yellow when Foster entered the intersection. The cyclists and another witness — a driver in the left-turn lane of West Kingston Road, waiting to turn onto southbound Miller Bay Road — said Foster was traveling at an excessive speed. However, investigators determined Foster’s speed when entering the intersection was 34.55 mph, below the 45 mph speed limit.

THE TRAFFIC STUDY

A traffic study focused on how fast Foster was traveling and at what point he likely saw the fire engine as a threat and reacted.

Based on a speed of 34.55 mph, the investigator determined Foster was approximately 167.05 feet from the fire truck when the truck moved seven feet out of its turn lane. When Foster reacted and applied his brakes, he was 99.69 feet from impact, but would have needed 127.98 feet to come to a complete stop.

The investigator determined Foster could have perceived the engine as “a potential danger” from 531.45 feet away. However, when Foster first observed the fire engine, the engine was fully in the left turn lane. When he went around the cyclists, the engine moved and crossed the center line. By the time Foster saw the engine again, it had moved into the northbound lane.

The light is yellow for 4.5 seconds before turning red. That means Foster was legally in the intersection in the middle of the light’s cycle and had the legal right-of-way.

“Based on my investigation, the fire engine was not legally standing and failed to give right of way to [Foster] by being left of the center line by approximately 3.6 feet,” the traffic investigator wrote.

A Foster family attorney hired Steve Stockinger, a crash-scene reconstructionist based in Tacoma, to review the crash. Stockinger agreed with the Sheriff’s Department report, except that skid marks from the scooter and witness statements to Foster’s wife and father at the scene indicate the engine was moving when the scooter struck it.

Robinson disagreed, saying that all of the evidence indicated the fire engine was stopped.

PAIN ‘IS NOT GOING TO GO AWAY’

In an earlier interview, NKF&R Fire Chief Dan Smith said Sommers had returned to duty but was “shaken up” by the fatal collision. He resigned a couple of months after the crash when he was offered another job in Seattle, Smith said.

The tragedy is still painful to department personnel, Smith said on March 7, because firefighters are in the business of saving lives, and on that day a life was lost.

“It will always be a cloud over the department. It’s a difficult thing, and I don’t know if getting it settled will help with any of that. It’s not something that’s going to go away.”

Smith said the collision was “a tragic accident,” and that inside and outside analysis of what happened showed the operation of the fire truck “was within standards and appropriateness. We looked to see if there were any overarching things we could change, and we couldn’t find anything we would do differently.”