$1 AGAINST THIRD PARTY DEFENDANT - ATV/PICK- UP TRUCK COLLISION - ATV DRIVER LEAPS TO SAFETY SECONDS BEFORE IMPACT - TIBIA AND FIBULA FRACTURES TO MINOR ATV PASSENGER - OPEN REDUCTION - INTERNAL FIXATION.

Lancaster County, PA

The plaintiff, a 15-year-old male at the time of injury, was riding as a passenger on the back of an ATV driven by the defendant Kyle Fisher. The ATV struck the back of a camouflage- painted pick-up truck owned by the co-defendant, Fisher’s Garage, a business owned by the defendant Kyle Fisher’s father. The plaintiff alleged that the defendant, Kyle Fisher, negligently operated the ATV and that the defendant, Fisher’s Garage, failed to maintain the rear lights of the pick-up truck, thereby causing the accident. The defendants argued that the accident was caused when the plaintiff’s 11-year-old brother shined a deer spotlight in Fisher’s eyes while he was driving the ATV, temporarily blinding him and causing the ATV to strike the pick-up truck. The plaintiff’s younger brother was named as an additional defendant in the case.

On June 30, ________, at approximately 10:00 p.m. the plaintiff, Matthew Burkholder, was a passenger on the back of an ATV driven by the defendant, Kyle Fisher. The youths were in a rural area of Tioga County and were engaged in a practice known as "spotting" deer. Deer spotting involves shining a bright light on deer and "freezing" them for observation. The boys were accompanying a camouflage-colored pick-up truck, owned by the defendant, Fisher’s Garage. The plaintiff’s younger brother, Nathan Burkholder, was riding in the back of the pick-up truck and was operating a six million candle power spotlight to spot the deer. Burkholder’s parents were not present at the scene.

Testimony established that the third party defendant shined the spotlight onto the ATV, temporarily blinding Kyle Fisher and the ATV struck the back of the pick-up truck which was stopped on the dirt road in front of it. The plaintiff alleged that the rear lights of the pick-up truck were not functioning and that the defendant owner failed to warn the driver of the truck of the defect. The plaintiff also claimed that the defendant, Kyle Fisher, operated the ATV in a negligent manner, was traveling at an excessive speed and leaped from the vehicle just before the impact occurred. The minor plaintiff remained on the ATV as it struck the back of the truck.

The plaintiff sustained multiple fractures to his tibia and fibula as a result of the collision. He underwent open reduction and internal fixation of the fracture. The plaintiff testified that he experiences leg pain upon strenuous activity. The plaintiff made no claim for economic damages.

The defendants, Kyle Fisher and Fisher’s Garage, maintained that the action of the third party defendant, in shining the deer spotlight into Kyle Fisher’s eyes while he was operating the ATV, temporarily blinded him and caused the collision. The defendant contended that the plaintiff’s brother was told to take the spotlight off the ATV, but failed to do so. In addition, testimony established that the third party defendant had been previously instructed that the powerful light could blind drivers and never to shine it on motorists.

The defense maintained that there was no evidence to support the plaintiff’s contention that the tail lights of the pick-up truck were not functioning at the time of the collision. The defendant also argued that the plaintiff was able to play on his college Lacrosse team, engage in competitive ATV races and had made a good recovery from his fracture.

The jury found that the defendant, Kyle Fisher, and the third party defendant, Nathan Burkholder, were both negligent. However, the jury determined that the negligence of Kyle Fisher was not a legal cause of injury to the plaintiff. Fisher’s Garage was found not negligent. The jury awarded the plaintiff $1 in damages against the third party defendant, Nathan Burkholder. The case is currently on appeal.