Collins v. Thomas (2005-536)
2007 VT 92
[Filed 24-Aug-2007]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2007 VT 92
No. 2005-536
Sally A. Collins, Administratrix of the Supreme Court
Estate of David Collins and Individually,
Chuck Collins and Amanda Collins On Appeal from
Windham Superior Court
v.
Nathan Thomas and Bradford Garland January Term, 2007
John P. Wesley, J.
Jesse M. Corum, IV of Gale, Corum, Mabie, Cook & Prodan, Brattleboro, for
Plaintiffs-Appellants.
Robin Ober Cooley of Pierson Wadhams Quinn Yates & Coffrin, Burlington, for
Defendant-Appellee Garland.
PRESENT: Reiber, C.J., Dooley, Johnson and Skoglund, JJ., and
Davenport, Supr. J., Specially Assigned
¶ 1. DOOLEY, J. This is a wrongful death action on behalf of
David Collins, who died tragically at age twenty after falling from the
back of a pickup truck driven by his friend, defendant Bradford Garland.
Plaintiffs, the estate of Collins, his parents, and sister, appeal an order
of the superior court finding defendant not liable as a matter of law and
granting him summary judgment. Plaintiffs contend that: (1) but for
defendant's negligence in driving an uninspected, defective vehicle, the
accident would not have occurred, and, alternatively, (2) defendant failed
to exercise reasonable care given Collins' intoxication and, but for
defendant's conduct, Collins would not have fallen to his death. We
affirm.
¶ 2. The undisputed facts are as follows. (FN1) On a late summer
evening in 2001, Collins attended a party outside of the home of his
friend, Nathan Thomas. At the party were Thomas and his girlfriend,
defendant and his girlfriend Daisy Bills, and Harold Smith. (FN2) Collins
and Thomas were drinking; defendant and Bills were not. After a few
hours, Collins and Thomas planned to leave on their motorcycles in search
of another party. Defendant offered to drive Collins and Thomas, who
were, according to plaintiffs, "noticeably intoxicated." Defendant's car
was too small to accommodate everyone, and so several members of the group
rode in Thomas' pickup truck. While defendant drove, Bills rode in the
passenger seat of the cab, and Collins, Thomas, and Smith rode unrestrained
in the bed of the truck.
¶ 3. Defendant drove at an appropriate speed, and there was no
evidence that he swerved or made any other unusual or erratic maneuvers
during the ill-fated trip. At one point, Thomas passed an unlit cigarette
to defendant, asking defendant to light it for him. It is unclear whether
Thomas passed the cigarette though the sliding window in the back of the
cab or through the driver-side window. Collins then passed an unlit
cigarette to Bills. According to plaintiffs, Collins stood up, kneeled on
the toolbox in the truck bed, and leaned over the edge of the truck with
one hand on the roof and one hand extended through the passenger-side
window. Collins shouted for Bills to light his cigarette and, according to
Bills, she was not able to immediately retrieve the lighter from defendant,
prompting Collins to again shout into the window for his cigarette.
Thomas stated in his deposition that he told Collins to "get down" from the
toolbox, but Collins replied that he had grown up sitting on the toolbox in
the back of his father's truck and that Thomas should not worry. Almost
immediately thereafter, Collins lost his balance and fell under the truck's
rear passenger-side tire. Thomas yelled and banged on the roof to alert
defendant, who stopped the truck and ran to where his friend had fallen.
It is not clear Collins ever regained consciousness after the fall; he died
in the hospital hours later.
¶ 4. Further, for purposes of summary judgment, defendant does not
dispute the fact that the truck was in poor repair and not legally
inspected at the time of the incident. Specifically, it had only an
expired New Hampshire inspection sticker and would not have passed
inspection in Vermont due to insufficient tread on the tires, a defective
front light, a crack in the windshield, a broken rear right shock absorber,
and a faulty rear right brake cylinder.
¶ 5. Plaintiffs brought suit claiming defendant was negligent in
driving the defective, uninspected truck, and that he was negligent in
allowing Collins, whom he knew to be intoxicated, to move about the bed of
the truck as he did. The trial court granted defendant's motion for
summary judgment, concluding that, as a matter of law, there was no causal
connection between the truck's defects and Collins' death. The court
further agreed with defendant that "there is no common-law duty on the part
of a sober driver to protect an intoxicated passenger from the consequences
of the intoxicated passenger's own actions, and that the imposition of such
a duty would be inconsistent with the social policy favoring the use of
designated drivers." Plaintiffs appealed.
¶ 6. We review an award of summary judgment de novo, construing all
doubts and inferences in favor of the nonmoving party. In re Mayo Health
Care, Inc., 2003 VT 69, ¶ 3, 175 Vt. 605, 830 A.2d 129 (mem.). The inquiry
is familiar: whether there are any genuine issues of material fact and
whether, in their absence, either party deserves judgment as a matter of
law. Id.; V.R.C.P. 56(c)(3). We conclude summary judgment was proper in
this case and address each of plaintiffs' arguments to the contrary in
turn.
¶ 7. First, we consider defendant's liability for Collins' death
because of driving a defective, uninspected truck. This claim suffers from
an elemental flaw - lack of proximate causation. To be sure, the police
report cites the various deficiencies of the truck described above. Thus,
plaintiffs make much of the fact that defendant drove the truck in
violation of 23 V.S.A. § 1222, which prohibits the operation of a motor
vehicle without a valid inspection sticker. While not claiming negligence
per se, plaintiffs contend that defendant's violation of § 1222 creates a
rebuttable presumption of his negligence. See, e.g., Dalmer v. State, 174
Vt. 157, 164, 811 A.2d 1214, 1221 (2002) (rejecting notion that violation
of a safety statute is negligence per se); Bacon v. Lascelles, 165 Vt. 214,
222, 678 A.2d 902, 907 (1996) (explaining that proof of violation of a
safety statute creates a prima facie case of negligence which is only a
rebuttable presumption).
¶ 8. Liability for negligence, however, requires not only a breach
of a duty of care but also evidence that defendant's unreasonable conduct
caused the plaintiff's harm. See, e.g., Rivers v. State, 133 Vt. 11, 13,
328 A.2d 398, 399 (1974). Specifically, causation requires both "but-for"
and proximate causation. See Wilkins v. Lamoille Cty. Mental Health
Servs., 2005 VT 121, ¶¶ 13-14, 179 Vt. 107, 889 A.2d 245. Thus, the
plaintiff must first show that the harm would not have occurred "but for"
the defendant's conduct such that the "tortious conduct [was] a necessary
condition for the occurrence of the plaintiff's harm." Id., ¶ 13. The
plaintiff must also show that the defendant's negligence was "legally
sufficient to result in liability," Black's Law Dictionary 234 (8th ed.
2004) (defining proximate cause), such that "liability attaches for all the
injurious consequences that flow [from the defendant's negligence] until
diverted by the intervention of some efficient cause that makes the injury
its own." Beatty v. Dunn, 103 Vt. 340, 343, 154 A. 770, 771 (1931)
(quotations and citation omitted); see also Estate of Sumner v. Dep't of
Soc. and Rehab. Servs, 162 Vt. 628, 629, 649 A.2d 1034, 1036 (1994) (mem.)
("Proximate cause is the law's method of keeping the scope of liability for
a defendant's negligence from extending by ever expanding causal links").
Although proximate cause "ordinarily"is characterized as "a jury issue," it
may be decided as a matter of law where "the proof is so clear that
reasonable minds cannot draw different conclusions or where all reasonable
minds would construe the facts and circumstances one way." Estate of
Sumner, 162 Vt. at 629, 649 A.2d at 1036 (quotations and citation omitted).
¶ 9. Here, we recognize plaintiffs' argument that but for
defendant's unreasonable conduct in driving the uninspected and defective
truck, Collins would not have died. This alone, however, does not provide
a sufficient legal nexus between any defect in the truck and Collins'
death. Collins' fatal fall from atop the toolbox could just as easily have
occurred had the truck been in perfect repair and properly inspected. See
Wilkins, 2005 VT 121, ¶ 10 (explaining that a "defendant cannot be
considered a cause of the plaintiff's injury if the injury would probably
have occurred without" the defendant's unreasonable conduct (internal
quotation omitted)(emphasis supplied)). The fall was not within the
natural flow of "injurious consequences" from the truck's defects; indeed,
it occurred irrespective of the defects.
¶ 10. The causation issue in this case is similar to that in Rivers.
There, two individuals were killed in a car accident with a state prisoner
who apparently stole a truck and drove it, while intoxicated, without any
lights on. Rivers, 133 Vt. at 12, 328 A.2d at 398-99. The prisoner had
been released temporarily on a weekend pass. Id. at 12, 328 A.2d at 399.
The plaintiff sued the Vermont Department of Corrections, arguing that it
was negligent for issuing the pass to the prisoner and that, but for the
pass, the accident would not have occurred. Id. at 13, 328 A.2d at 399.
We affirmed a directed verdict for the State, concluding that the weekend
pass was not a proximate cause of the victims' death in light of the
numerous, independent acts of the prisoner, including "intoxication, theft
of a vehicle, driving without lights and without maintaining a proper
lookout, and driving at an excessive rate of speed." Id. at 14, 328 A.2d
at 400. Similarly here, although defendant did act negligently in
operating a defective truck, defendant's conduct was not the proximate
cause of plaintiff's injury, because there was no relationship between the
defects and the accident.
¶ 11. We turn then to plaintiffs' claim that defendant is liable for
Collins' death because he failed to prevent Collins from moving about the
bed of the truck, and that, but for defendant's continuing to drive while
Collins kneeled on the toolbox and reached around to the passenger-side
window, Collins would not have died. This theory raises issues of duty and
causation, but because we find defendant breached no duty of care to
Collins as a matter of law, we do not address causation here.
¶ 12. Initially, it bears noting that our review reveals no
prohibition under Vermont law against carrying passengers in the back of a
pickup truck, nor any requirement that such passengers be restrained. (FN3)
Whether this means of transport is wise is, as this case sadly
demonstrates, dubious at best. But, in the absence of any legislative
pronouncement otherwise, no law prohibited defendant from allowing his
intoxicated friends to ride in the bed of the truck. Plaintiffs argue that
their position is nonetheless supported by the Restatement (Second) of
Torts, § 323(a) and § 324(a), as well as by the reasoning of two
out-of-state cases. We begin with the Restatement.
¶ 13. Section 323 states:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of the other's person or things, is subject to
liability to the other for physical harm resulting from his
failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of
such harm, or
(b) the harm is suffered because of the other's reliance upon
the undertaking.
Restatement (Second) of Torts § 323. Plaintiffs also rely on § 324 which
states in relevant part:
One who, being under no duty to do so, takes charge of another who
is helpless adequately to aid or protect himself is subject to
liability to the other for any bodily harm caused to him by
(a) the failure of the actor to exercise reasonable care to
secure the safety of the other while within the actor's charge[.]
Restatement (Second) of Torts § 324. Plaintiffs' argument under each of
these sections is essentially the same, and logically so. As the comments
explain, the rule in § 324 is simply "an application of the one stated in §
323," the difference being that under § 324, the plaintiff is "helpless."
Id. § 324 cmt. a. Accordingly, for purposes of this case, we treat the two
sections as the same.
¶ 14. Plaintiffs claim defendant, contrary to § 323 and § 324,
failed to exercise reasonable care after volunteering to drive the
intoxicated Collins because he failed to secure Collins' safety "either by
having him sit in the cab wearing a seatbelt, or, at least, by stopping the
truck after realizing that he was in a precarious position in the bed of
the vehicle." We disagree.
¶ 15. By statute that has since been repealed, an operator owed a
passenger a duty only to avoid gross negligence. See 23 V.S.A. § 1491,
repealed by 1969, No. 194 (Adj. Sess.), § 1 (effective March 12, 1970).
The effect of the statute's repeal is to leave the operator with a duty of
ordinary care with respect to the passenger. Whether we view this case
under the general duty of an operator to a passenger or under the special
Restatement duties, the result is generally the same - defendant had a duty
not to be negligent in his operation with respect to Collins.
¶ 16. As we stated earlier in the opinion, there is no evidence
that defendant negligently operated the truck apart from plaintiffs'
assertion that he should have prevented Collins from moving about the truck
bed and handing a cigarette to the passenger. Defendant had the right to
expect that Collins would avoid conduct as patently dangerous as kneeling
on a toolbox in the back of a moving pickup truck while reaching around to
the cab. See Blondin v. Carr, 121 Vt. 157, 151 A.2d 121 (1959) (requiring
passengers to "exercise reasonable caution and judgment for [their] own
safety . . . . [which] must meet the standard of a reasonably prudent
person in the situation that prevailed at the time of the
accident"(citations omitted)); see also Cota v. Rocheleau, 141 Vt. 391,
396, 141 A.2d 426, 430 (1958) (describing defendants' "right to expect the
plaintiff [to] exercise reasonable care to observe and protect himself from
obvious dangers" (citations omitted)); Burleson v. Morrisville Lumber &
Power Co., 86 Vt. 492, 497, 86 A.745, 747 (1913) (citing with approval rule
of many other states that "voluntary drunkenness does not relieve a drunken
man from the degree of care required of a sober man in the same
circumstances" (quotation and citation omitted)); Dicranian v. Foster, 114
Vt. 372, 376, 45 A.2d 650, 652 (1946) (same). Here, therefore, we agree
with the trial court that defendant breached no duty of care with respect
to Collins. We cannot say that defendant knew or should have known that
any of his own actions increased the risk to Collins, cf. Restatement
(Second) of Torts § 323(a), § 324(a), particularly where plaintiffs present
no evidence that defendant knew that Collins had kneeled precariously atop
the toolbox, rather than remaining in the truck bed, when he reached his
arm into the passenger-side of the cab.
¶ 17. This case is much more akin to the out-of-state cases cited by
defendant than those provided by plaintiffs. (FN4) In Krieger v. Howell,
the Idaho Court of Appeals affirmed a jury's determination that a
twelve-year-old boy who rode in the back of a pickup truck on a toolbox was
more at fault for injuries related to his fall than the fifteen-year-old
driver who offered the ride. 710 P.2d 614, 618 (1985). Despite the
different procedural posture of the case, the Krieger court summarized a
critical distinction in pickup-truck cases that is informative to our duty
analysis here. It noted that many courts distinguish between "a passenger
who places himself in a hazardous position which led to a fall from the
vehicle and a passenger who places himself in what would have been a safe
position except for the driver's negligent driving." Id. at 617
(collecting cases). The instant case involves the former set of
circumstances, such that defendant breached no duty of care to Collins.
¶ 18. In a case even more analogous to the one at bar, both
procedurally and substantively, the Supreme Court of Indiana, in Stephenson
v. Ledbetter, affirmed summary judgment for the defendant driver of a
pickup truck for the death of his friend after the decedent, who was
intoxicated, fell from where he was seated on the side-rail of the truck's
bed. 596 N.E.2d 1369, 1370 (1992). The court stated:
The only wrong [the defendant] is alleged to have committed was
his failure to stop or slow the truck and to compel [the
decedent], a competent adult passenger, to sit in a safer position
in the truck. We cannot conclude that his failure to do so was a
breach of his duty to operate the truck with reasonable care.
Id. at 1372. See also Senese v. Peoples, 626 F. Supp. 465, 468 (M.D. Pa.
1985) (granting summary judgment to defendant for injuries related to
plaintiff's exiting through a window of a moving pickup truck, rejecting a
"duty on the part of a driver of a vehicle to attempt to prevent a
passenger from injuring himself when, as here, the passenger has placed
himself in a position of peril").
¶ 19. In light of these precedents, we do not agree that defendant
breached a duty owed to Collins where Collins engaged in voluntary behavior
that substantially increased his risk of injury. As defendant argues, our
holding is consistent with the public policy in favor of designated
drivers, recognized by the trial court and other courts. See, e.g.,
Stephenson, 596 N.E.2d at 1373 ("To hold a driver liable for the
irresponsible actions of an intoxicated passenger would cut against [the]
important social policy of encouraging the use of designated drivers.").
Here, there is no prima facie case of negligence as a matter of law where
defendant remained sober, offered his intoxicated friends a ride so that
they would not drive themselves, and drove his friends in a non-negligent
manner.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
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Footnotes
FN1. Both parties submitted statements of fact. Pursuant to V.R.C.P.
56(c)(2), defendant submitted a statement of undisputed facts and addressed
the events during the evening of Collins' death up to and including the
accident. Also pursuant to the rule, plaintiffs responded with a statement
of disputed facts but addressed only the condition of the truck and whether
Collins was drunk at the time of the accident, a matter on which there is
actually no dispute. Because plaintiffs have not disputed any of the facts
proffered by defendant, we take defendant's statement as admitted, see id.,
and use that statement in describing the facts. Although we do not find
them relevant, we assume that plaintiffs' statements about the condition of
the truck are true.
FN2. Originally, plaintiffs also sued Thomas, who owned the pickup truck,
but he was later dismissed because he filed for bankruptcy.
FN3. Certainly, we have no statute like that of New Jersey which prohibits
individuals from riding in any portion of a vehicle "not designed or
intended for the conveyance of passengers." N.J.Stat.Ann. § 39:4-69; see
also Lombardo v. Hoag, 634 A.2d 550, 561 (N.J. Super. Ct. App. Div.1993)
(citing with approval application of statute to pickup trucks, noting that
"[i]n the absence of any permanent fixtures or seats intended for
passengers, the bed portion of a pick-up truck is not designed or intended
for the conveyance of passengers").
FN4. Plaintiffs cite Coville v. Liberty Mutual Insurance Co., 748 A.2d 875
(Conn. App. Ct. 2000) and Industrial Waste Service, Inc. v. Henderson, 305
So. 2d 42 (Fla. Dist. Ct. App. 1975) (per curiam), both of which are
readily distinguishable. In Coville, the court reversed a jury verdict due
to an inadequate instruction concerning the driver's duty for voluntarily
taking custody of a "helpless" person - the plaintiff, who was his
girlfriend and who was intoxicated to the point of "semiconscious[ness]."
748 A.2d at 879. After dragging her into the cab of his truck, the driver,
who was also intoxicated, twice reached over to shut the passenger door as
she tried to escape the moving vehicle. Id. at 876-77. Eventually she
succeeded, sustaining serious injuries. The court deemed it error not to
instruct the jury concerning the duty of care set forth in § 324 in these
circumstances. Id. at 879. In Henderson, the court affirmed the
plaintiff's jury verdict in a case involving a deadly romp on a garbage
truck. In light of evidence that the defendant engaged in repeated
horseplay with the decedent, who was intoxicated, before he fell from the
running board and was run over, 305 So. 2d at 43, the court concluded that
the jury could reasonably find that the defendant appreciated the risk and
should have "acted in a prudent manner to remove the danger by stopping the
truck and ceasing the horseplay." Id. at 45. In each of these cases,
defendant's inappropriate conduct actively caused the risk that led to the
accident.