KINGSTON — The family of a man killed in a collision with a North Kitsap Fire & Rescue engine on July 4, 2014 is suing the department for negligence.

Jason T. Foster’s family filed suit in King County Superior Court on Oct. 7. Named as defendants are the department and Scott Sommers, the firefighter behind the wheel of the engine when the crash occurred.

Foster’s family is represented by Nathan P. Roberts and John R. Connelly Jr. of Connelly Law Offices and Rodney B. Ray of Margullis & Ray Attorneys at Law, both of Tacoma. The department is represented by Terence J. Scanlan of Skellenger Bender of Seattle.

The lawsuit is filed in King County because that’s where Sommers lives. Trial is scheduled for Oct. 3, 2016.

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.” A blood test also determined Sommers had a carboxy-THC level of 6.3 nanograms per milliliter of blood in his system.

Carboxy-THC is non-active and stays in a person’s system for “several days,” according to the report. Hydroxy-THC is active and is what causes impairment and euphoria; that was not in the driver’s blood, according to the report. A driver who has at least 5 nanograms per ml of hydroxy-THC will lose his or her license for 90 days and face possible prosecution for DUI.

“While [the] toxicology report does indicate that there was carboxy-THC in his system, there was no evidence that he was under the influence or impaired in any way by any drug,” the prosecutor’s office announced in the March 10 press release. After reviewing the evidence, Kitsap County Prosecutor Tina Robinson “determined there was not sufficient evidence to prove that any crime had been committed.”

According to the press release, Robinson evaluated the case for vehicular homicide. “There are three prongs in which a person may be convicted of vehicular homicide under RCW 46.61.520: (1) under the influence of intoxicating liquor or any drug; (2) in a reckless manner; or (3) with disregard for the safety of others.

“The statute clearly defines what it means to be affected by marijuana, and specifically excludes carboxy-THC. This is because carboxy-THC does not cause impairment and can be found in the system several days or even weeks after consumption. After evaluating all three prongs of the statute, Robinson concluded that there was not sufficient evidence to prove beyond a reasonable doubt that a crime was committed.”

Robinson didn’t cite Sommers, calling the crash “a very tragic accident.” Ray said in response in March, “I was surprised by that. There were no contributing circumstances by Jason. He was driving well below the speed limit. I don’t know why criminal charges were not filed … Case law is clear — when you fail to yield the right of way, you’re negligent.”

HOW THE CRASH OCCURRED
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 — driving a Yamaha YP400 Majesty scooter — 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 hit 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 in the intersection in the middle of the light’s cycle and had the legal right-of-way.

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.

At the time of the crash, the traffic signal was a flashing yellow turn arrow and the fire engine was required to yield, according to the investigation report. Foster had a solid yellow light; a vehicle can legally enter an intersection on a solid yellow light, even if the light turns red while the vehicle is in the intersection, according to the investigation report.

“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.

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.

“It’s a tragedy. It’ll always be that way for us,” Smith said of Foster’s death. “It’s difficult to express in some kind of words how that is, that we would be involved in something that is the opposite of what we do.” He said he “would certainly participate” in a mediation session with the family.

CRASH-SCENE RECONSTRUCTION
Ray 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 indicates the fire engine was stopped.

PROPOSED MEDIATION
In March, Ray had proposed a mediation session in which the family could “communicate” to the fire department’s attorney, insurance company and fire chief what the loss of their loved one has meant to them.

“This is not an economic damages case. This is not a case involving future medical expenses, obviously,” Ray said at the time. “Sandy Foster’s husband was killed. A dad was killed. A son was killed. A brother was killed. That’s something that doesn’t come across strongly in print. It comes across in the stories people tell.”

Ray said his 10-page letter — 20 pages with exhibits — to NKF&’R’s attorney didn’t propose a settlement amount, only that both sides meet with a mediator so Foster’s family could share how they’ve been affected by his death.

The meetings apparently never took place, but Fire Chief Smith thinks mediation is possible. “I think that’s the direction that it will end up. It will probably come to a point where we will have some conversation through mediation. But both parties needed to have more information, and the only way to do that is to initiate a process where we can share information,” he said, referring to the pre-trial discovery phase.

According to the case schedule, the deadline for discovery — depositions, interrogatories, and exchange of documents — is Aug. 15, 2016. The deadline for engaging in alternative dispute resolution is Sept. 6, 2016.