Against all odds

Kevin Flannery always had a routine for mowing the path through the field behind his house. He'd ride out about 1,000 feet, then turn around and come back. The red, zero-turn, commercial-grade mower carved a pretty wide swath, but it took four or five round trips to get the width he preferred.  

As he made his first pass on a warm, quiet October afternoon in 2016, he heard a sound from the engine behind him — the sound of metal on metal.

Tink.

The engine was running fine, so he kept going. On his return trip, he heard it again.

Tink.

"I was like, 'What the heck was that?'" Flannery said. "I got down and was just standing there looking at it while it was idling."

A moment later, he felt the impact of a bullet as it tore through his midsection.

"All of a sudden I got hit real hard. There was a lot of pain," Flannery said.

He did not know in that moment that his life had been upended, that the damage the bullet caused would impact his wife, his daughter, his work. All that he knew was that he had been seriously wounded, and he realized those tinking sounds were bullets hitting his mower.  He dove to the ground, using the engine block as a shield.

Farmers’ fields surrounded him, and he could see for hundreds of yards in every direction, but he didn’t see a shooter, in fact he didn’t see another human being anywhere.

Then he heard the sound as another bullet hit his lawnmower. And then another.

Tink. Tink. Tink.

“I didn't even dare to lift my head up,” Flannery said. “I mean the bullets are going through the grass. You can hear them go through the grass in some spots, or bouncing off the engine or the back of the lawnmower.”

One hit the mower’s seat, sending a spray of foam upholstery through the air.

The 42-year-old father didn't always carry his cellphone when he was mowing, but for some reason he had it on this day. He called 911 to report that he'd been shot. It was 4:43 in the afternoon.

"I wasn't in any position to try to see how bad I was hurt," Flannery said. "Probably a good thing."

Remarkably, Flannery didn't go into shock. He remained awake and alert as he spoke to the emergency dispatcher on the other end of the phone.

First responders raced to the area, but it was an active shooter situation and they couldn’t make their way out to Flannery, some 400 yards from the road, until the shooting had stopped. 

But the bullets kept coming, and the Hilton native struggled to make sense of why somebody was shooting at him.

“The 911 operator asked ‘who would try to kill you,’ and I’m like, ‘Nobody!’ I have no idea what’s going on,'” Flannery said

The Flannerys own about 30 acres of land behind their house on Moul Road, a rural area in Parma about 2 miles north of the village of Hilton. A trail cuts south through a cluster of small trees and opens to a large grassy field. Kevin Flannery mows paths through that field and he invites friends over to ride snowmobiles or ATVs.

Moments after the shooting started, Kevin’s wife Aimee arrived home with the couple’s 4-year-old daughter. 

With emergency vehicles filling the road in front of her house, Aimee Flannery stepped out of her car to find her husband’s brother Mark, a volunteer firefighter, in the driveway. He explained to her what was happening. The sound of gunfire was unmistakable.

“I just dropped to my knees,” Aimee said. “I’ve never felt such complete helplessness. It was the worst day of my life.”

Searching for shooters

Police established a perimeter and fanned out looking for the source of the gunfire. Monroe County sheriff’s Deputy Shawna Cubiotti was at the intersection of Moul Road and North Avenue, a half-mile east of the Flannery house, when two more shots rang out.  She drove to 249 North Ave. where she encountered two men coming down the driveway carrying a white folding table.

The men, who identified themselves as Ryan Pellman and Matthew Rodgers, told her they had been target shooting in the cornfield behind the house.

Advised that somebody had been shot, they said they didn’t believe it was possible.

“Rodgers stated that they set up a plastic folding table and shot at a target that was held on a sign stand,” Cubiotti wrote in her report.

Rodgers, 35, told the deputy that he didn’t own the property where they were shooting, but that his family lived nearby. Pellman, 34, said they had been calibrating the scopes on their rifles in preparation for hunting season.

The accuracy of the shots downrange suggests they weren’t holding the rifles in their hands when they shot, that they were mounted in a stationary position on the table.

Both men acknowledged that they hadn’t used any sort of backstop behind the target to prevent the bullets from traveling further. According to investigators, Rodgers explained “it’s just a huge open field but there was a tree line further back.”  Pellman described “how there was just miles of farmland and fields behind the house.”

While there is no law that requires target shooters to have a backstop, responsibility for the bullets you fire has always been one of the fundamental principles of responsible gun ownership.

It's one of the main tenets of the National Rifle Association's gun safety rules.

"Be aware of the area beyond your target," the rules say. "This means observing your prospective area of fire before you shoot. Never fire in a direction in which there are people or any other potential for mishap. Think first. Shoot second."

Pellman and Rodgers had walked out to a farmer's field to fire their guns that day. Behind the row of houses on North Avenue is a wooded area, and a 300-foot trail leads through those trees to a big cornfield. Pellman and Rodgers were in the southeast corner of that field, shooting east to west along a tree line parallel to Moul Road. They set up their targets about 500 feet away, and beyond that was another 500 feet of empty field in front of a small hedgerow.

Past the hedgerow is another farmer’s field, another clump of trees, and then the Flannerys' yard. Investigators would later determine the distance from the shooters to the victim was approximately 2,300 feet, slightly less than a half-mile.

That's roughly the same distance as from Frontier Field to the Blue Cross Arena.

Deputies seized four firearms from Pellman, including a Del-Ton AR-15, two .308-caliber Winchester rifles, and a semi-automatic pistol. They also took Rodgers' .308 Winchester and a total of 27 spent shell casings. It’s not clear which gun — or which shooter — fired the shot that struck Kevin Flannery. Technicians tried desperately to find the bullet that struck him, but the search was unsuccessful.

Pellman and Rodgers were arrested at the scene and taken to Parma Town Court, where they were arraigned on charges of assault and reckless endangerment.  

Improbable rescue 

Once the shooting stopped, three armed deputies raced into the field to find Kevin Flannery. Twenty-nine minutes had elapsed since he first called 911. Deputies Scott Jolly, Erin Johnstone and James Shaw found Flannery on a path about 300 yards behind his house.  He was lying on the ground, conscious, breathing, and able to identify himself. Jolly found an entry wound just above Flannery's  navel and a large exit wound on his back. The lawnmower was still running. 

Jolly packed the exit wound with sterile gauze, something doctors would later say kept Flannery alive long enough to reach the hospital. Mark Flannery loaded EMTs from Hilton Ambulance into the back of his pickup and drove out to get his brother, put him on a stretcher, and bring him back to the road. 

It’s 23 miles from the Flannery house to the University of Rochester Medical Center. The Mercy Flight helicopter was too far away, so Kevin Flannery was taken by ambulance.  Driving the speed limit at that time of day would take the average driver about 30 minutes, but with sirens blaring and lights flashing, the ambulance got him there in considerably less time. Somehow Flannery remained awake and alert the whole time.

A trauma team was waiting, alerted to the fact that he was on his way and getting updates over the radio as paramedics assessed Flannery's injuries. A dozen surgeons, nurses and technicians with expertise in dealing with these types of catastrophic injuries were ready to leap into action.

“The first thing I remember is wondering why he was still alive,” said Mark Gestring, a veteran trauma surgeon and head of the Kessler Burn and Trauma Center at URMC. “Usually someone injured this severely doesn’t make it to the hospital.”

Gestring is a nationally recognized expert in trauma care and has spent nearly two decades treating the most seriously injured people in this community. He could see right away that Flannery's situation was precarious.

“I told him ‘you need surgery’, he said ‘I know’, and off we went,” Gestring said. Within five minutes of arriving, Flannery was in the operating room.

Flannery’s injuries were extensive. Half of his liver was gone and so was the kidney on his right side.  His bowel had been torn apart, there was damage to muscle and ribs and there was a big hole from the exit wound in his back.  And, with so much time elapsed since he’d been shot, he had lost a dangerous amount of blood. Gestring and his team launched into what’s called damage control surgery.

“You’re not going to fix everything at once. At the end of the day you want a live patient,” Gestring said. “You're going to fix what you need to fix to get from Day One to Day Two, and then from Day Two to Day Three, and then as he physiologically gets better, you figure the rest of it in.”

After three hours of surgery, Gestring had the task of telling Aimee that while her husband was still alive, he wasn’t out of the woods yet.

“I don't even tell her that we're OK,” Gestring recalls. “I tell her we're OK for now and we've stopped now because we've gotten to the point where we need to be, but we have a lot to do before I can tell you that he's going to be OK.”

Over the next week-and-a-half, Kevin Flannery had six major surgeries.  Doctors kept him chemically paralyzed and asleep throughout the process. Aimee didn’t leave the hospital for 16 days.

“There were two solid weeks where we worried he could die any second,” she said.

Out of the woods

Kevin Flannery eventually awoke as he was weaned from the drugs, but he didn’t know the story of what had happened to him. He’d arrived at the hospital believing he’d been intentionally targeted, and Aimee wasn’t able to tell him the true story at first.

“Medically he was too delicate,” Aimee said. “I didn't want to do anything to raise his blood pressure.”

When she believed the time was right, she told her husband he had been shot by a pair of target shooters who’d never even seen him.

It was little solace, given the tough road ahead of him. Kevin Flannery remained in the intensive care unit for several weeks. Once they removed his ventilator, he found he was too weak to get out of bed or do much of anything.

“I had to learn how to stand again, how to walk again, how to eat food with utensils,” he said.

He had lost 40 pounds by the time he was cleared to go home. He was weak, with tubes and drains hanging out of his body, needing to use a walker to move a few feet at a time. And he still had an open wound that stretched from his breastbone to below his navel. 

“They can't just pull it back and stitch it because it had been open for so long,” Kevin said. “So they have to let it heal from the inside out.”

Three times a week, nurses came to his house to change the dressing on that open wound.  They’d fill the void with black foam and cover it with tape to seal it, then insert a drainage hose and hook it to a vacuum. The pain of the procedure was excruciating, and he endured it for months.

Even with medical professionals regularly coming to the house, Aimee had to become a full-time caretaker.

She did marketing, graphic design and social media for a local mortgage company, but needed to be home to help take care of her husband.

“Yeah, I lost my job,” Aimee said. “This was a full-time job, and then we have a 4-year-old daughter on top of all that.”

It was impossible to shield their daughter, Kendall, from what had happened.

“She heard his pain when the wound VAC was being changed 3 times a week,” Aimee said. “And even though I tried so hard to keep her from knowing that Daddy was shot mowing the lawn in the backyard, I couldn't stop the things people would say to me when we went out together or when people came to visit.”

The road to recovery was long and painful. At times, it wasn’t clear if Kevin would make it.

A few weeks after leaving the hospital, his condition deteriorated. Kevin spent the week of Thanksgiving back in the intensive care unit.  At Christmas time he was home-bound and unable to attend any family gatherings.  

Even as his wounds began to heal, fluids would continue to ooze out of them for months. Kevin had to carry gauze with him for those moments when a spot soaked through his shirt or ran down his pants. The issue was so persistent he had to sleep in a separate bed.

"We had to have waterproof mattress covers on all the couches," Aimee said. "He would only sit on the wooden chairs. When he finally sealed up we threw all of the pillows and cushions right out."

Infection was a constant concern, even as spring arrived. Kevin returned to the hospital for another surgery in May. By then the numbness in his fingers had dissipated, a lingering effect of the paralytic drugs that had been used during his first weeks in the hospital.

In August, he returned to work at the University of Rochester’s Laboratory for Laser Energetics. He was grateful for the support his co-workers had shown as he fought his way back. 

“Just him making it through all of this is a miracle,” Aimee said. “I believe it’s because he has worked so hard at his recovery because getting back to his old self was his only option.”

Charges dismissed

A grand jury indicted Pellman and Rodgers in April on two counts each: assault in the second degree and reckless endangerment. The trial was scheduled to begin on Sept. 25.

But in August, state Supreme Court Judge Alex Renzi overturned the indictment and dismissed the charges, effectively ending the criminal case.  With the dismissal, all of the records in the case were sealed as a matter of law, including Renzi’s reasoning for his decision.

The Flannerys were stunned at this turn of events, and say they never got a clear explanation of why the two men accused of the shooting won’t face any consequences.

“So, now you’ve got these two guys who did this and got nothing for it. It’s like it never happened,” Kevin said. “We never heard any explanation of why the charges were dismissed, at least in layman's terms. I just don’t understand.”

Assistant District Attorney Christine Callanan was the lead prosecutor in the case. Through a spokesperson, she declined to comment on the outcome, saying that when a case is sealed prosecutors are prohibited by law from talking about it. The DA’s office did not appeal Renzi’s decision.

Pellman’s attorney, Paul Guerrieri, said that Renzi concluded there was insufficient evidence to support the criminal charges.

“As tragic as the circumstances were, the question really was whether they (Pellman and Rodgers) were acting in a criminally reckless manner,” Guerrieri said. “Judge Renzi reviewed the grand jury minutes and concluded that there was no proof that they were.”

To meet the legal standard for recklessness, they would have had to know that somebody was out in that field and consciously disregard that fact, Guerrieri explained. And there was no legal requirement to have a backstop behind their target.

Guerrieri says he’s thankful the charges were dismissed.

“These guys weren’t intoxicated. They weren’t acting like jerks with guns,” he said. “As tragic as the circumstances were, they didn’t do anything illegal.”

Asked whether this case might prompt a change to state laws, state Sen. Joseph Robach, R-Greece, was noncommittal.

"I have always been a supporter of the 2nd Amendment," Robach said. "However, I also believe legal gun owners should always prioritize safety to prevent negligent use." 

Through their attorneys, both Pellman and Rodgers declined to comment for this article.

Civil suit filed

In November, Kevin and Aimee Flannery filed a civil suit against Pellman and Rodgers.

“The most important thing is for them to get some compensation for what they've been through,” said their attorney, Stephen Schwarz. “We'll be alleging basically that (Pellman and Rodgers) were more than negligent, they were reckless, and we'll be seeking punitive damages.”

While it’s still not clear which of the defendants fired the shot that struck Kevin Flannery, Schwarz said it doesn’t matter for the purposes of the claim.

“The law provides that when two people are negligent ...” Schwarz said, “it’s their burden to prove who did it. And if they cannot, then both are legally liable.”

As a trauma surgeon, Dr. Gestring spends a lot of time testifying in court about the injuries patients such as Kevin Flannery have suffered. Lawyers will ask him to describe injuries from a year earlier that nearly took somebody’s life.

“But the guy is sitting there looking perfectly healthy in a suit, and he's not dead. Kevin is going to look fine,” Gestring said. “And that's the reason we try to explain exactly what happened, exactly what this poor guy went through. Because he was not fine for a very long period of time.”

Underneath his shirt, Kevin has a 3-inch wide scar that covers most of his abdomen. He has scars on his front and back and side from where the bullet struck, from where hoses were connected, from where surgeons had to make entry to repair his damaged body.

The last year has taken a heavy toll on Kevin Flannery, both physically and emotionally.  But remarkably, he says he feels no animosity toward the men who shot him and turned his life upside down.

“I know they weren't trying to kill me, they just did something stupid," he said. An avid hunter himself, Kevin knows the importance of responsible gun ownership. But being angry at those men won't lessen the trauma he has endured.

"I don't really have any ill-harbored feelings,” Kevin said.  “If I see them, I don't care. I'm not running away from them or hiding from them. It doesn't bother me.”

Aimee says she feels much differently. She was looking forward to giving a victim’s impact statement at trial, but with the court case dropped she was denied that closure.

But she insists she’s not vengeful. She wants the accused shooters to learn a lesson, to tell their friends, and for people in the community to think about the consequences of irresponsible gun owners.

“If I could choose a punishment, I would want it to be for them to have to sit there and listen to Kevin's 20-minute 911 call,” Aimee said. “He said goodbye to Kendall and I on that phone call.”

Aimee said it took months before she could summon the courage to go into her backyard, to walk to the spot where her husband was shot. She still cringes when she hears gunfire from hunters near her house.

She struggled with the idea of running into the accused shooters in public, or simply driving past the house on North Avenue.

“For months I took the long way into town so I wouldn’t have to pass these landmarks which would cause me to shake and feel ill when I passed them,” Aimee said.

They did run into one of the accused shooters at a school open house. Aimee said just seeing him made her so upset they had to leave immediately.

In discussing what happened, both are quick to deflect discussion about the burden they have endured, instead turning the conversation to the many people who have helped them. From Monroe County sheriff's Deputy Scott Jolly and Hilton EMT Jason Willie, whose quick work in the field helped Kevin survive long enough to make it to the hospital, to all of the medical staff who helped him start on the road to recovery. And there are profuse expressions of gratitude for the wide circle of friends, family, co-workers, and neighbors who pitched in to help or just lend an encouraging word through what has been a year filled with challenges.

Those who have met the Flannerys along the way say the experience has been just as memorable for them.

“I've been doing this for 15 or 20 years and I will always remember this guy's mechanism of injury. I will always remember his care,” Gestring said.

Last summer Kevin replaced the seat on his mower that had been damaged by gunfire and resumed his task of tending to the 30 acres behind his house.

“Somebody’s got to,” he says.

Aimee says her stress level rises whenever he heads out there, but Kevin says he tries not to dwell on the memories of that day.

“What are the chances anything like that ever happens again,” he says. “Life's too short. You got to just go back to it. No one else is mowing my lawn, so I guess I gotta do it.”

SLAHMAN@Gannett.com

The criminal charges

On April 21, 2017, a Monroe County grand jury returned an indictment accusing Ryan Pellman and Matthew Rodgers of two crimes. 

Assault in the second degree, in violation of Section 120.05, Subdivision 4 of the New York State Penal Law:

"A person is guilty of assault in the second degree when he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument. Assault in the second degree is a class D felony."

Reckless Endangerment in the second degree, in violation of Section 120.20  of the New York State Penal Law:

"A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person. Reckless endangerment in the second degree is a class A misdemeanor."

The grand jury also cited Section 20.00 with both indictments, the law on criminal liability for conduct of another:

"When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct."

State Supreme Court Judge Alex Renzi dismissed the charges against Pellman and Rodgers in August.

Timeline of key events

Oct. 11, 2016: Kevin Flannery is shot while mowing behind his Parma home. He is rushed to the Kessler Burn and Trauma Center at the University of Rochester Medical Center. Monroe County sheriff's deputies find Ryan Pellman and Matthew Rodgers, who had been target shooting nearby. The two are arrested and arraigned in Parma Town Court.

Oct. 22, 2016: Flannery undergoes six major surgeries during his first 12 days in the hospital. Doctors keep him chemically sedated in the intensive care unit.

Nov. 9, 2016: Flannery leaves the hospital and goes home for the first time.

Nov. 22, 2016: After his condition worsens, Flannery returns to the hospital and spends a week back in the ICU. In the coming weeks, he would return to the emergency room two more times.

January 2017: Kevin's wound VAC is removed, a device that has been helping his wounds heal, draining excess fluids, and preventing infection. 

April 21, 2017: Pellman and Rodgers are indicted by a grand jury on charges of assault and reckless endangerment.

May 16, 2017: Flannery has surgery to install a drain in his abdomen because it continues to leak fluids. The drain was removed on May 19, but his wound continued to leak until the end of June.

Aug. 11, 2017: Flannery returns to his job at the University of Rochester Laboratory for Laser Energetics for the first time since being shot.  

Aug. 21, 2017: The Monroe County District Attorney's Office notifies the Flannerys that Judge Alex Renzi had dismissed the criminal charges against Pellman and Rodgers.

Oct. 25, 2017: Three Monroe County sheriff's deputies, Scott Jolly, Erin Johnstone and James Shaw receive a Lifesaving Award for their efforts to rescue Flannery after the shooting.

Nov. 21, 2017: Kevin and Aimee Flannery file a civil suit, accusing Pellman and Rodgers of recklessness and gross negligence.