Frank Driscoll v. Wright Cut and Clean, LLC & Benjamin C. Wright

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 by email at: JUD.Reporter@vtcourts.gov or by mail at: Vermont Supreme Court, 109
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before this opinion goes to press.

2024 VT 49

No. 23-AP-347

Frank Driscoll Supreme Court

On Appeal from
v. Superior Court, Grand Isle Unit,
Civil Division

Wright Cut and Clean, LLC & Benjamin C. Wright June Term, 2024

Samuel Hoar, Jr., J.

Cynthia L. Broadfoot and Deborah M. Ryan (On the Brief) of Broadfoot, Attorneys at Law,
Burlington, and Vanessa B. Kittel, St. Albans, for Plaintiff-Appellant.

Susan J. Flynn of Flynn Messina Law Group, PLC, Burlington, for Defendants-Appellees.

PRESENT: Reiber, C.J., Eaton, Carroll and Waples, JJ., and Dooley, J. (Ret.),
Specially Assigned

¶ 1. EATON, J. Plaintiff Frank Driscoll appeals a civil division order granting

judgment as a matter of law on his negligence claim in favor of defendants Benjamin Wright and

Wright Cut and Clean, LLC. Because we determine plaintiff failed to produce sufficient evidence

of causation, we conclude judgment as a matter of law was warranted. Accordingly, we affirm.1

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Plaintiff also sued defendant Wright Cut and Clean for negligent hiring, training,
entrustment, supervision, and retention. Because this claim depends on the success of his
underlying negligence claim, it too warrants judgment in favor of defendants. See Haverly v.
Kaytec, Inc., 169 Vt. 350, 357, 738 A.2d 86, 91 (1999) (noting claims like negligent supervision
require showing “as an element” some “underlying tort” by employee). On appeal, plaintiff raised
two additional arguments: (1) that the trial court erred in bifurcating his negligence claim from his
negligent hiring, training, entrustment, supervision, and retention claim under Vermont Rule of
Civil Procedure 42 and (2) that it erred in refusing to take judicial notice of life expectancy tables
¶ 2. The following facts were produced at trial. On July 18, 2019, plaintiff Frank

Driscoll went running along East Shore Road, a fifteen-foot-wide, unmarked dirt road in Isle La

Motte. Plaintiff was running in a southerly direction on the left side of the road, facing into the

flow of traffic. At the same time, defendant Benjamin Wright (driver), an employee of defendant

Wright Cut and Clean, was driving a company truck also in a southerly direction at approximately

nineteen miles per hour, but on the right side of the road. The truck was pulling a trailer that was

eight feet one inch at its widest point, and the right side of the truck was positioned very close to

the edge of the right side of the road as it went southerly. As driver’s truck approached plaintiff

from behind, plaintiff looked behind him, and then moved about five feet to his left, toward the

left edge of the road. As the truck passed plaintiff, driver looked in his side review mirror and

claims he saw plaintiff move back to his right, towards the road’s center, and get struck by the

trailer. Plaintiff was unconscious when police arrived, and he has no memory of the accident.

¶ 3. Based on this incident, plaintiff sued alleging negligence against driver and liability

of Wright Cut and Clean on a respondeat superior basis for the negligence of driver, along with a

direct negligence claim against it for negligent hiring, training, entrustment, supervision, and

retention of driver. The trial court elected to bifurcate the negligence and negligent hiring claims

under Vermont Rule of Civil Procedure 42, and the court held a jury trial solely on the negligence

claim. In support of this claim, plaintiff put on expert testimony at trial from a forensic engineer,

Dr. Jerry Ogden. Dr. Ogden testified about the dimensions of the trailer and asserted that due to

the width of the trailer and the road, the left side of the trailer extended “anywhere from six inches

to twelve inches” into the left lane while the trailer was overtaking and passing plaintiff. He was,

however, unable to state how close plaintiff was to the truck when it first began to pass plaintiff.

under Vermont Rule of Evidence 201. Because we affirm judgment as a matter of law, we need
not address these issues. E.g., Me. Mut. Fire Ins. Co. v. Tinker, 2005 VT 35, ¶ 1, 178 Vt. 522, 872
A.2d 360 (mem.) (declining to reach other issues after affirming judgment as a matter of law).

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Dr. Ogden also presented detailed testimony about the way the trailer struck plaintiff. He further

testified about skid marks left on the road by the truck and how he used them to estimate that the

speed of the truck was 19.3 miles per hour, plus or minus 0.9 miles per hour, when the trailer struck

plaintiff.

¶ 4. Dr. Ogden’s testimony provided the only evidence supporting the claim that

driver’s allegedly negligent actions were the cause of plaintiff’s injuries. Specifically, he asserted

in his testimony that driver caused plaintiff’s injuries because driver needed “to make sure that he

controls the entire vehicle as he’s passing by [a] vulnerable road user” such as a jogger. He also

opined that, at impact, “there wasn’t a four[-] foot safety gap or more between [plaintiff] and the

trailer.” Dr. Ogden admitted, however, that there was “no physical evidence to establish where

[plaintiff] was located” at any time before impact, and therefore Dr. Ogden was unable to provide

conclusions on any causative factor leading up to the incident.

¶ 5. Based on the evidence plaintiff presented at trial, defendants moved for judgment

as a matter of law under Vermont Rule of Civil Procedure 50 at the close of plaintiff’s case. The

court granted defendants’ motion from the bench following a lengthy colloquy with counsel. In

granting the motion, the court concluded that plaintiff failed to establish both the requisite breach

of duty and causation elements of his negligence claim, though it is unclear which element the

court found more determinative. The court found “no evidence other than speculation” to suggest

that driver failed to slow down, that driver could have moved farther away from plaintiff as he

passed, or that the truck’s position in the road or its speed were the cause of the accident. The

court memorialized its decision in a brief written order entering judgment in favor of defendants.

This appeal followed.

¶ 6. On appeal, plaintiff argues that the trial court erred in granting judgment as a matter

of law. We review a trial court’s decision to grant or deny judgment as a matter of law de novo,

applying “the same standard as the trial court” under Rule 50. Follo v. Florindo, 2009 VT 11,

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¶ 26, 185 Vt. 390, 970 A.2d 1230 (quotation omitted). In so doing, we consider the evidence “in

the light most favorable to the nonmoving party” and afford the nonmoving party “every

reasonable inference that may be drawn from [it].” Id. ¶¶ 26-27 (quotation omitted). We uphold

a grant of judgment as a matter of law where “there is no legally sufficient evidentiary basis for a

reasonable jury to find for the nonmoving party,” id. ¶ 27 (quotation omitted), such that the facts

do not “directly support[]” the claim and would require the jury to rely on “conjecture, surmise or

suspicion,” Marshall v. Milton Water Corp., 128 Vt. 609, 612, 270 A.2d 162, 164 (1970).

¶ 7. To survive judgment as a matter of law in a negligence claim, the plaintiff must

produce sufficient evidence of (1) “a legal duty owed by defendant to plaintiff,” (2) “a breach of

that duty,” (3) an “actual injury to the plaintiff,” and (4) “a causal link between the breach and the

injury.”2 Zukatis v. Perry, 165 Vt. 298, 301, 682 A.2d 964, 966 (1996). Generally, duty is a

question of law, while breach and causation are questions of fact. See Springfield Hydroelectric

Co. v. Copp, 172 Vt. 311, 317 n.2, 779 A.2d 67, 72 n.2 (2001) (duty); Leclair v. Boudreau, 101

Vt. 270, 274, 143 A. 401, 402 (1928) (breach); Wells v. Village of Orleans, Inc., 132 Vt. 216, 222,

315 A.2d 463, 467 (1974) (causation). It is the plaintiff’s burden at trial to establish each “by a

preponderance of the evidence.” Barber v. LaFromboise, 2006 VT 77, ¶ 15, 180 Vt. 150, 908 A.2d

436.

¶ 8. Plaintiff here cites a number of reasons why driver allegedly breached the duty of

care owed to plaintiff, including that he did not adequately warn plaintiff of his approach, that he

did not leave enough space between the trailer and plaintiff, that he did not sufficiently slow down

as he approached, and that the trailer protruded too far into the opposite lane. Plaintiff, however,

presented an insufficient factual basis establishing that any of driver’s alleged breaches was the

cause of plaintiff’s injury. The absence of causation alone, even if we assume there was a breach

2
Defendant concedes in his brief that the damages element is not before us.

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of duty, warrants judgment in favor of defendants. See Cheney v. City of Montpelier, 2011 VT

80, ¶ 9, 190 Vt. 574, 27 A.3d 359 (recognizing that judgment as a matter of law is warranted for

defendants if plaintiff fails to prove any “essential element” of negligence claim).

¶ 9. The causation element of negligence requires sufficient evidence for a reasonable

jury to conclude that, but for some negligent action by the defendant, the plaintiff would not have

been harmed. Collins v. Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208. Evidence of

injury alone is generally insufficient to show causation. Instead, the plaintiff must “rely on expert

testimony” to demonstrate causation unless the circumstances are plain enough that “only common

knowledge and experience are needed to comprehend it.” Sachs v. Downs Rachlin Martin PLLC,

2017 VT 100, ¶ 20, 206 Vt. 157, 179 A.3d 182. If the expert testimony or other evidence evinces

more than one possible source of causation, it is still possible for plaintiff to present a viable claim

to avoid judgment in favor of the defendants. Concord Gen. Mut. Ins. Co. v. Gritman, 2016 VT

45, ¶ 22, 202 Vt. 155, 146 A.3d 882. However, the absence of expert testimony or other viable

evidence showing a causal link with the injury precludes a finding that the plaintiff sufficiently

established that element. Bernasconi v. City of Barre, 2019 VT 6, ¶ 12, 209 Vt. 419, 206 A.3d

720; Lasek v. Vt. Vapor, Inc., 2014 VT 33, ¶ 15, 196 Vt. 243, 95 A.3d 447.

¶ 10. The only evidence of causation plaintiff put on at trial in this case came from

plaintiff’s expert, Dr. Ogden. When specifically asked his opinion about causation, Dr. Ogden

stated generally that “[driver] need[ed] to make sure that he controls the entire vehicle as he’s

passing by [a] vulnerable road user,” such as plaintiff, and that “at the time of the impact, there

wasn’t a four[-]foot safety gap or more between [plaintiff] and the trailer.”3 However, Dr. Ogden

did not identify any allegedly negligent act by defendant that caused plaintiff’s injury. He did not

3
Dr. Ogden’s reference to a four-foot safety gap stems from 23 V.S.A. § 1033(b), which
states that a “vehicle approaching or passing a vulnerable user” such as a runner “shall exercise
due care, which includes . . . increasing clearance to a recommended distance of at least four feet.”

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claim that driver negligently failed to control the truck at any time while overtaking and passing

plaintiff. He also admitted that there was “no physical evidence to establish where [plaintiff] was

located” at any point before the accident, and thus Dr. Ogden did not “know anything before

[impact].” As such, he was unable to say whether there was in fact a “four[-]foot safety gap”

between plaintiff and the trailer during the time leading up to impact or if the lack of such a gap,

if any, was a causative factor in the collision. And despite his thorough discussion of driver’s

approximate speed and possible position in the road relative to plaintiff’s position, he did not

identify how, if at all, the truck’s speed or position provided any causal link between driver’s

alleged negligence and plaintiff’s injury. He likewise did not cite driver’s alleged failure to better

warn plaintiff as the truck approached, the trailer’s extension “anywhere from six inches to twelve

inches” into the left lane, or the way plaintiff’s body impacted driver’s trailer as causative factors.

¶ 11. Besides Dr. Ogden, no other witness addressed causation or ever indicated what

specific aspect of driver’s allegedly negligent actions caused plaintiff’s resulting harm. And

because of plaintiff’s admitted inability to recall the incident, he could give no testimony on the

subject. Absent such specific evidence of causation, a jury would have to rely on mere speculation

to determine what, if anything, was the causal link—such as driver’s speed, the truck’s position on

the road, the vehicle or trailer dimensions, his failure to adequately warn plaintiff, or other factors

alone or in combination—between driver’s actions prior to impact and plaintiff’s resulting injury.

¶ 12. Given the dearth of evidence on the issue of causation, this case resembles

Bernasconi and Lasek. In Bernasconi, the plaintiff sued in negligence for injuries he sustained

after falling in a hole. 2019 VT 6, ¶ 1. Because he presented “no evidence . . . showing how the

hole’s depth,” dimensions, or other factors “could provide a basis” for a causal link with his injury,

even assuming the failure to maintain the hole was negligent, we affirmed judgment as a matter of

law. Id. ¶ 14. This is not unlike the absence of evidence here establishing a causal link between

driver’s allegedly negligent acts, if any, and the collision. Similarly, in Lasek, the plaintiff claimed

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that a manufacturer of e-cigarettes caused a warehouse fire through negligent handling of liquid

nicotine. 2014 VT 33, ¶ 1. The plaintiff, however, did not provide admissible expert testimony

on causation. Id. ¶ 6. Just as plaintiff in this case provided insufficient expert testimony on

causation, we recognized in Lasek that without sufficient “expert testimony on the issue

of causation, [the] plaintiff was unable to prove that [the defendant’s] use of liquid

nicotine . . . caused the fire,” and therefore “the court properly granted judgment as a matter of

law.” Id. ¶ 15.

¶ 13. For the same reason, the instant case is readily distinguishable from Concord, where

we determined that judgment in favor of the defendants on the issue of causation was unwarranted.

There, the plaintiffs sued the defendants in negligence for allegedly causing a fire that damaged

their home. 2016 VT 45, ¶ 1. Two experts testified about the fire’s cause, both of whom claimed

it could have been caused by a cigarette butt or electrical fixture but concluded that the most likely

cause was a fire the defendants had lit in a chiminea (outdoor fireplace) on the plaintiffs’ deck. Id.

¶¶ 5, 11-12. Based on testimony expressly opining about the fire’s likely cause, we held that the

plaintiffs presented evidence of causation sufficient to survive summary judgment, even though

they presented multiple theories. Id. ¶ 22; see Dalmer v. State, 174 Vt. 157, 170, 811 A.2d 1214,

1226 (2002) (“[The] standards for summary judgment and judgment as a matter of law are

essentially the same.”). By contrast, no such evidence from any witness in this case, including Dr.

Ogden, indicated what, if any, allegedly negligent actions by driver actually caused plaintiff’s

resulting injury, leading the trial court to rightly find plaintiff’s negligence claim unviable.

¶ 14. Absent the necessary evidence of causation, judgment as a matter of law must be

affirmed. See Keegan v. Lemieux Sec. Servs., Inc., 2004 VT 97, ¶ 11, 177 Vt. 575, 861 A.2d 1135

(mem.) (recognizing that failure to prove any one element of negligence claim warrants judgment

as matter of law). Therefore, the trial court did not err in entering judgment in favor of defendants

on the negligence claim against driver and the respondeat superior claim against Wright Cut and

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Clean. Because there was no causal negligence on the part of driver, there is likewise no viable

claim for direct negligence against defendant Wright Cut and Clean in its hiring, supervision, and

other employment practices pertaining to driver. See Haverly, 169 Vt. at 357, 738 A.2d at 91

(requiring “underlying tort” by employee as “element” of claims like negligent supervision).

Affirmed.

FOR THE COURT:

Associate Justice

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