NKF&R settles lawsuit in July 4, 2014 fatal crash

Fire chief: ‘Our thoughts and prayers will always be with the Foster family. We hope that concluding this matter will afford them the opportunity to heal’

KINGSTON – North Kitsap Fire & Rescue’s insurer has reached a settlement with the family of Jason Foster, who was killed on July 4, 2014 when his motor scooter and an NKF&R fire engine collided in the intersection of Miller Bay Road and West Kingston Road.

A King County Superior Court jury awarded $9.5 million to Foster’s family on May 18; NKF&R announced at the time it intended to appeal.

“After careful consideration of the time and cost involved in an appeal, it was decided to settle this case,” NKF&R Fire Chief Dan Smith said Aug. 10. “Following the verdict, our legal counsel and insurer initially felt there was a sound basis for appeal … However, after appellate counsel was retained, it was determined that the amount of the jury’s verdict would likely withstand an appeal.”

Smith said he didn’t know the settlement amount, but said it was less than the jury award.

“We believe this decision was made for the best interest of everyone involved, and our thoughts and prayers will always be with the Foster family,” Smith said. “We hope that concluding this matter will afford them the opportunity to heal.”

The settlement is with Foster’s widow, seven adult children and one minor child. Foster’s family was represented by Nathan P. Roberts. NKF&R was represented by Terence J. Scanlan. The lawsuit was filed in King County because that’s where Scott Sommers, the former NKF&R firefighter who was driving the engine, lives.

A King County Superior Court judge ruled on March 2 there was negligence on NKF&R’s part, but that a jury would determine whether Foster shared any fault. The jury decided in favor of the Foster family.

According to the investigation report, the fire engine was stopped at the intersection, waiting to make a left turn, and its front driver’s side had edged approximately 3.6 feet into the oncoming lane. That’s when Foster’s Yamaha YP400 Majesty scooter, crossing the intersection on a yellow light, and the fire truck collided.

Foster’s family alleged that 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 alleged 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 had used cannabis. 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 denied the allegations of negligence.

According to the Kitsap County Sheriff investigator’s report, 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 cyclists approaching the intersection in the northbound lane.

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

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 investigator’s report.

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.

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.”

In an earlier interview, Smith, the NKF&R fire chief, 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.”

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