Collins v. Thomas

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.