State v. Valyou

State v. Valyou (2005-571); 180 Vt. 627; 910 A.2d 922

2006 VT 105

[Filed 11-Oct-2006]

                                 ENTRY ORDER

                                 2006 VT 105

                      SUPREME COURT DOCKET NO. 2005-571

                            SEPTEMBER TERM, 2006


  State of Vermont                     }         APPEALED FROM:
                                       }
                                       }
       v.                              }         District Court of Vermont,
                                       }         Unit No. 2, Addison Circuit
  Corey J. Valyou                      }
                                       }         DOCKET NO. 503-9-05 AnCr

                                                 Trial Judge: Matthew I. Katz

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  The State charged defendant with one count of grossly
  negligent operation of a motor vehicle, with serious injury resulting, as a
  result of his falling asleep while driving and causing an accident.  23
  V.S.A. § 1091(b).  Defendant successfully moved to dismiss under V.R.Cr.P.
  12(d), and the State appealed.  The district court found that defendant's
  admission that he felt drowsy and had fallen asleep "a couple of times"
  while driving shortly before his accident was not, as a matter of law,
  sufficient evidence of gross negligence as required by statute.  We
  disagree, and reverse and remand.
   
       ¶  2.  The evidence upon which the district court relied is as
  follows: At around 4:30 a.m. on the morning of August 1, 2005, defendant
  set out from Westford, Vermont on his way to Rutland, where he planned to
  be at work by 6:30 a.m.  On Route 7 in Salisbury, he fell asleep at the
  wheel of his moving vehicle.  He traveled across the oncoming lane of
  traffic and collided with another vehicle, resulting in substantial
  injuries to the other driver.  Defendant was awakened only by the impact of
  the crash.  Later, he told the investigating officer that he had been
  feeling drowsy during his commute.  He also stated:  "I nodded off a couple
  of times, I usually do and I wake myself back up but that morning I
  didn't."   
   
       ¶  3.  The State charged defendant with one count of grossly
  negligent operation with serious injury resulting pursuant to 23 V.S.A. §
  1091(b).  Defendant moved to dismiss, contending that the State could not
  make out a prima facie case of gross negligence.  V.R.Cr.P. 12(d).  The
  trial court found that despite being a "close case" involving "something
  more than mere falling asleep," defendant was correct.  In reaching this
  conclusion the district court relied on two cases from other jurisdictions,
  Clancy v. State, 829 N.E.2d 203 (Ind. Ct. App. 2005) and Hargrove v.
  Commonwealth, 394 S.E.2d 729 (Va. Ct. App. 1990).  Based on these cases,
  discussed herein, and an interest in drawing a "clear distinction" between
  ordinary and gross negligence, the court concluded that "to continue
  driving under the circumstances of knowing one is drowsy or prone to
  falling asleep is negligent.  But it is not, by itself, grossly negligent."  

       ¶  4.  We review questions of law de novo.  State v. Damon, 2005 VT
  54, ¶ 6, 178 Vt. 564, 878 A.2d 256 (mem.).  In reviewing a dismissal
  under Rule 12(d), we examine the evidence in the light most favorable to
  the State, and determine whether the evidence, excluding the effects of
  modifying evidence, would fairly and reasonably tend to show beyond a
  reasonable doubt that defendant committed the offense.  Id. ¶ 9. 

       ¶  5.  We are not the first court to note the difficulty in
  demarcating the bounds of degrees of negligence.  Under our statutes, gross
  negligence is "conduct which involve[s] a gross deviation from the care
  that a reasonable person would have exercised in that situation."  23
  V.S.A. § 1091(b)(2).  Negligence is a breach of the duty to exercise
  ordinary care.  Id. § 1091(a)(2).  In distinguishing the two, we have said
  that gross negligence "amounts to a failure to exercise even a slight
  degree of care," and that it requires more than "an error in judgment,
  momentary inattention, or loss of presence of mind."  Peck v. Gluck, 113
  Vt. 53, 55, 29 A.2d 814, 815 (1943).  We have found that failure to observe
  a pedestrian for three to four seconds while the defendant driver focused
  on oncoming traffic was no more than simple negligence, State v. Free, 170
  Vt. 605, 607-08, 749 A.2d 622, 624-25 (2000) (mem.), while failure to
  observe a pedestrian when the defendant driver had an "unobstructed view of
  the accident site for almost 400 yards, along a relatively straight stretch
  of road, during daylight hours, and amidst relatively light traffic," was
  grossly negligent.  State v. Koch, 171 Vt. 515, 516-517, 760 A.2d 505, 506
  (2000) (mem.).  As the Supreme Court of Florida has observed with respect
  to its own hierarchy of negligence: "Different degrees of negligence are
  far easier to demonstrate than to define."  Carraway v. Revell, 116 So. 2d 16, 19 (Fla. 1959).  Similarly, we have said that "[t]he presence or
  absence of gross negligence turns upon the particular factual circumstances
  of each case, and therefore rests within the special province of the jury." 
  Koch, 171 Vt. at 516, 760 A.2d  at 506.  Ultimately, the difference between
  gross and ordinary negligence is brought into relief through the facts of
  each case. 

       ¶  6.  There are some guideposts in cases of this type.  As the
  trial court held, falling asleep at the wheel does not, in and of itself,
  constitute gross negligence.  On the other hand, when a driver is on
  sufficient notice as to the danger of falling asleep but nevertheless
  continues to drive, the driver's subsequent failure to stay awake may be
  grossly negligent.  To continue to drive in these circumstances marks a
  disregard for the risk of injury to such a degree so as to constitute "a
  gross deviation from the standard of care that a reasonable person would
  have exercised in [defendant's] situation."  23 V.S.A. § 1091(b)(2). 
        
       ¶  7.  Supreme courts that have addressed the issue of sleeping
  drivers have reached these conclusions uniformly.  The Supreme Judicial
  Court of Massachusetts rejected a per se rule that falling asleep while
  driving, without more, was grossly negligent in favor of a
  failure-to-heed-warnings standard.  Thus it held: "It is possible that
  sleep may sometimes overtake its victim unawares and we think that it would
  be going too far to say that falling asleep without more is evidence of
  gross negligence."  Flynn v. Hurley, 124 N.E.2d 810, 813 (Mass. 1955).  The
  court  went on to hold: "'it may be said that the danger of driving while
  heavy with drowsiness is so extreme and self-evident that one who, with
  knowledge that he is in that condition, persists in driving without making
  the necessary efforts fully to arouse himself can be found to be grossly
  negligent.'"  Id. (quoting Carvalho v. Oliveria, 25 N.E.2d 764, 765 (Mass.
  1940)).  The factual difference between Flynn and Carvalho is enlightening. 
  In Flynn, the court found no evidence that the defendant was on notice of
  the risk of falling asleep such that he could have taken steps to avoid it;
  the evidence was merely that he had been steadily asleep at the wheel for a
  period of time before the accident.  Id.  Thus, there was insufficient
  evidence of gross negligence.  Id.  In Carvalho, on the other hand, the
  court found sufficient facts of gross negligence where the defendant had
  admitted that he felt sleepy and had "dozed off several times" in the
  course of his journey.  Carvalho, 25 N.E.2d. at 765; see also Boos v.
  Sauer, 253 N.W. 278, 279 (Mich. 1934) ("To constitute gross negligence in
  falling asleep while driving there must have been such prior warning of the
  likelihood of sleep that continuing to drive constitutes reckless disregard
  of consequences. . . . [P]rior warning may be by way of having before gone
  to sleep or dozed off."); Smith v. Williams, 178 P.2d 710, 717 (Or. 1947)
  (finding a triable issue of gross negligence where defendant had driven
  fifty miles an hour over a gravel road when he "knew he was sleepy and
  notwithstanding this knowledge continued to drive and did go to sleep.").

       ¶  8.  Even the cases upon which the trial court relied reach the
  same conclusion.  See  Hargrove, 394 S.E.2d  at 731-32 (finding defendant
  not grossly negligent where he "had not fallen asleep, [and] had not
  previously dozed during the trip before the accident"); Clancy, 829 N.E.2d 
  at 207 ("If the driver has had some prior warning as to the likelihood of
  falling asleep but continues to drive, such may be considered willful or
  wanton misconduct," but "[t]he act of falling asleep at the wheel of an
  automobile, standing alone, is generally held to permit, at most, an
  inference of negligence.") (Internal quotations omitted.). (FN1)

       ¶  9.  The instant case presents sufficient evidence that
  defendant disregarded clear warnings that he was likely to fall asleep;
  indeed, he permitted himself to doze off "a couple of times" before his
  accident.  This was plainly more than "momentary inattention."  Peck, 113
  Vt. at 55, 29 A.2d  at 815.  The State's allegations suggest that defendant
  failed to exercise "even a slight degree of care" to avoid the obvious
  risks of falling asleep at the wheel.  Id.  A jury could find that
  defendant's conduct in these circumstances was a gross deviation from the
  care we would expect of a reasonable person in this situation. 
  Accordingly, it was an error to dismiss the State's charge. 

       Reversed and remanded.


       BY THE COURT:



                                       _________________________________________
                                       Paul L. Reiber, Chief Justice

                                       _________________________________________
                                       John A. Dooley, Associate Justice

                                       _________________________________________
                                       Denise R. Johnson, Associate Justice

                                       _________________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _________________________________________
                                       Brian L. Burgess, Associate Justice



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                                  Footnotes


FN1.  Defendant has cited two additional cases in his brief, Kaplan v.
  Kaplan, 239 N.W. 682 (Iowa 1931) and De Shelter v. Kordt, 183 N.E. 85 (Ohio
  Ct. App. 1931), but neither involves clear prior warnings of drowsiness.