COURTS: Jogger who was hit claims investigation incomplete

By Britney Milazzo<br><a href="mailto:britney.milazzo@lockportjournal.com">E-mail Britney</a>

The victim of an August pedestrian-vehicle accident in Middleport claims the Niagara County Sheriff’s Department didn’t investigate the driver who struck him.

However, the sheriff’s office says they followed proper procedure to the letter of the law. Deputies also say the passenger is partly at fault for the accident because he was traveling with traffic instead of against it.

Jason T. Pawlowski, 26, 105 Freeman Road, Middleport said he is pursuing a civil lawsuit against the driver’s insurance company. The case will be sent to Niagara County Court, sheriff’s Chief Deputy Steven Preisch said.

Pawlowski was jogging on Freeman Road when he crossed in front of a 2006 Buick and was struck by the vehicle heading northbound at 8:53 a.m. Aug. 6, an accident report said. The driver was Victor R. Henley, 21, 4709 Freeman Road, Middleport.

Pawlowski was transported by Mercy Flight to Erie County Medical Center for treatment of leg and facial injuries.

With the accident, came several surgeries. Now Pawlowski claims he has a lack of motion in his leg and one arm.

“I can’t flex my foot upward, or even feel it, which makes me limp and my foot slaps across the ground when I walk,” Pawlowski said. “I also have severe internal injuries to my spine.”

The victim, an eight-year Air Force veteran, is complaining that he is not getting any justice through the sheriff’s office.

“The Niagara County Sheriffs Department responded to this accident and they did not check the person who hit me ... for drugs nor alcohol,” Pawlowski said. “He was not searched for a cell phone to rule out that he was text-messaging while driving, either.”

However, Preisch said sheriff’s investigators took all necessary measures to get information on the accident without exceeding the law and said the sheriff’s office has become “the target of his frustrations.”

“We didn’t fail to do so, we just don’t have probable cause to make a charge,” Preisch said.

Preisch said they can not just search someone or force them to take a drug and alcohol test without probable cause. He said the driver did not display any impaired motor skills.

“He wasn’t exhibiting any signs for us to do so,” Preisch said. “You have to show suspicion. The driver didn’t.”

As for the use of a cell phone, the driver reportedly told deputies that he did not have one on him. Preisch also said speed is an unknown factor, because there is no evidence to measure it.

“We usually look for skid marks or something of that nature to measure, but there were none,” Preisch said.

The police report said the driver attempted to go around the pedestrian, before the collision occurred.

Preisch said it was a very unfortunate accident, and the victim is lucky to be alive, but the accident was partially the runner’s fault.

“If he would’ve taken the right precautions, he wouldn’t be in this situation,” Preisch said. “I feel bad. Really bad. The accident completely derailed his future, but it could have been avoided.”

Preisch, who handled the investigation, said Pawlowski was doing two things wrong: Running with traffic, which is against the law, and running with an iPod.

The victim admits to running with traffic and listening to his iPod, but said he did not know he was violating any laws.

“I was listening to med school lectures, not even music,” he said. “ And I had no clue running with traffic was against the law. In the military, we always ran with traffic, not against it.”

Pawlowski said he contacted the law offices of William Mattar who is pursuing a lawsuit against GEICO, the driver’s insurance company.

“GEICO is putting up quite a fight,” Pawlowski said. “All I want is justice.”

The victim said he has tried to contact the sheriff’s office numerous times to get a response on where the investigation stands and has not heard anything since November.

“The last time I spoke with someone from the sheriff’s office, they said all the evidence is circumstantial and that they cannot hold anything against the driver,” Pawlowski said.

Assistant District Attorney Theodore A. Brenner, who is handling the case, said he will not speak to the media about the case.

Contact reporter Britney Milazzo at 439-9222, ext. 6251.

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