Collins, et al. v. Thomas, et al., Docket No. 336-7-03 Wmcv (Wesley, J., Nov. 4, 2005) 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the 

original. The accuracy of the text and the accompanying data included in the Vermont trial court 

opinion database is not guaranteed.]

STATE OF VERMONT 

WINDHAM COUNTY, SS. 

SALLY COLLINS, as Administratrix 

of the Estate of David Collins and Individually, 

CHUCK COLLINS and AMANDA COLLINS, 

Plaintiffs, 

v. WINDHAM SUPERIOR COURT 

DOCKET NO. 336-7-03 Wmcv 

NATHAN THOMAS and 

BRADFORD GARLAND, 

Defendants. 

ORDER GRANTING DEFENDANT GARLAND=S

 MOTION FOR SUMMARY JUDGMENT

From an incident occurring in the early hours of the morning on July 29, 2001,David 

Collins was tragically killed when he fell off a pick-up truck driven by Bradford Garland. 

Plaintiffs have sued Garland,1

 asserting that he was negligent in (1) driving a truck with several 

defects and an expired inspection sticker, and (2) allowing Collins, who he knew to be 

intoxicated, to ride in the back of the truck unrestrained. 

 

1

 Sally and Chuck Collins are David Collins= parents, and Amanda is his sister. Sally is also 

administratrix of David=s estate. Plaintiffs originally sued the owner of the truck (Nathan Thomas) also, 

but the owner was dismissed as a defendant following his discharge in bankruptcy. 

Currently pending is Garland=s motion for summary judgment. The Court agrees with 

Garland that liability cannot be based on the truck=s defects or the expired inspection sticker, 
2

since there is no evidence that these violations contributed in any way to the cause of the 

accident. Moreover, the Court agrees with Garland 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. Accordingly, Garland=s motion for summary 

judgment is GRANTED. 

Summary Judgment Standard

Summary judgment is appropriate if, viewing the evidence favorably to the nonmoving parties and giving them the benefit of all reasonable doubts and inferences, the 

Court determines that there are no genuine questions of material fact and the moving 

party is entitled to judgment as a matter of law. See Select Designs, Ltd. v. Union Mut. 

Fire Ins. Co., 165 Vt. 69, 72 (1996). 

Background

Viewing the evidence favorably to Plaintiffs and giving them the benefit of reasonable 

doubts and inferences, it appears that on the night of the tragedy, David Collins was Ahanging 

out@ in Nathan Thomas= yard with Thomas, Harold Smith, Bradford Garland, and Daisy Bills, 

Garland=s girlfriend. Collins was 20, and the others were 21 to 23. Garland and Bills were not 

drinking, but Collins, Thomas, and Smith were drinking and noticeably intoxicated. It is not 

clear where Collins obtained his liquor, but he was drinking from his own flask-type bottle, 

which was in his pocket when he fell. There is no evidence that Garland enabled Collins= state of 

intoxication. 

Thomas= girlfriend eventually asked the group to leave, and they decided they would all 
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drive together to Brattleboro. Collins and Thomas wanted to ride their motorcycles, but Garland 

and Bills discouraged them from doing so since they were intoxicated. Instead, the group used 

Thomas= pick-up truck because it would hold all five of them, and Garland drove because he was 

not intoxicated. Garland and Bills rode in the front cab, and Collins, Thomas, and Smith rode in 

the bed of the truck, continuing to drink. The three intoxicated young men were sitting on a tool 

box that stretched across the bed of the truck where it met the front cab, with Thomas on the 

driver=s side, Collins on the passenger=s side, and Smith in the middle. The top of the tool box 

rose up a little higher than the sides of the bed. 

The group headed south on Route 30, from the Townshend area toward Brattleboro. 

They stopped briefly at Old Route 30 near the Townshend dam, a popular spot for hanging out, 

and then drove on, continuing south on Route 30 at approximately 40 to 50 mph. Thomas tried 

to light a cigarette, but due to the wind he passed his cigarette into the cab so Garland could use 

his lighter to light it for him. Collins then stood up and knelt on the top of the tool box, facing 

forward, and leaned forward over the edge to stick a cigarette through the passenger side 

window, to have Bills light it for him. In this process, however, Collins fell off the truck and was 

run over, dying from his injuries later that day. 

A subsequent search of the truck revealed that it had several defects and an expired 

inspection sticker. Specifically, the tire treads were worn, the headlights were defective, the 

windshield was cracked, a shock absorber was broken, and a brake cylinder was ruptured and 

leaking. No evidence links any defect in the truck or the expired inspection sticker as having 

played any role in causing this accident, however. 

Analysis
4

AThe elements of common law negligence are: (1) defendants owed a legal duty to protect 

plaintiff from an unreasonable risk of harm; (2) defendants breached that duty; (3) defendants=

conduct was the proximate cause of plaintiffs= injuries; and (4) plaintiffs suffered actual damage.@

 Knight v. Rower, 170 Vt. 96, 102 (1999). 

Plaintiffs= first theory is that Garland is liable because he drove a truck with defects and 

an expired inspection sticker. A>The law of proximate cause calls for a causal connection 

between the act for which the defendant is claimed to be responsible and which is alleged to be 

negligent and the resulting flow of injurious consequences.=@ State v. Roberts, 147 Vt. 160, 163 

(1986), quoting Rivers v. State, 133 Vt. 11, 14 (1974). Where injurious consequences flow from 

the alleged negligence but there is an intervening act, the question of whether the intervening act 

cuts off proximate cause and legal liability is generally one for the jury. See Roberts, 163-64. 

However, where the injurious consequences do not flow from the alleged negligence at all (i.e., 

there is no Acause-in-fact@), the question of proximate cause can be decided as a matter of law. 

See Rivers, 133 Vt. at 14 (action against state for injuries incurred in accident caused by driver 

who was inmate released on weekend pass was properly dismissed for lack of proximate cause). 

Here, there is no evidence of any causal link between the defects or lack of an inspection sticker 

and Collins= fall. Thus, Plaintiffs= first theory of liability fails as a matter of law. 

Plaintiffs= second theory is that Garland was negligent in allowing Collins, who he knew 

was intoxicated, to ride unrestrained in the back of the pick-up truck. There is no indication that 

Garland was driving in a negligent manner, or that his manner of operating the vehicle 

contributed in any way to causing Collins to fall from the truck bed.. Garland was not speeding, 

swerving, or doing anything which arguably and reasonably might have contributed to the fall. 
5

Rather, it cannot be disputed on the state of the evidence that Collins= fall and death directly 

resulted from his own actions in kneeling on the tool box and leaning forward over the edge of 

the truck. Thus, Garland can only be responsible at law if he had an affirmative duty to act to 

protect Collins from the consequences of Collins= own negligent actions. 

As a general matter, one person may be legally responsible for - i.e., may have a legal 

duty to control - the actions of another only if there is special relationship between the person to 

be held responsible and the actor, such as a parent-child relationship or an employer-employee 

relationship. See Restatement (Second) of Torts '' 315(a), 316, 317. Similarly, a person 

generally has a legal duty to take action to protect another from a danger the first person did not 

create only if he or she stands in a special relationship to the person to be protected, such as 

common carrier, innkeeper, or custodian. See id. at '' 314A, 320. Cf. also Knight, 170 Vt. at 

103 (citing Restatement sections on duty to act approvingly). These Restatement sections 

contemplate situations where there may be a duty to control the actions of one person to protect a 

third person, or a duty to protect one person from the actions of a third person, while the 

circumstances of the present case involve the possibility of a duty to protect one person from the 

consequences of that person=s own actions. Logically, it is plausible that this should be narrower 

than the realm of possible duties to control and protect others described above. For purposes of 

this motion, the Court finds no controlling rationale in the Restatement, but rather looks to these 
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principles as useful guidelines for the outer limits of a possible duty.2

 

2

 Of course, a legislature can impose a duty to act by statute, and violation of the statute could 

provide the basis for a common law negligence action if the plaintiff is a person meant to be protected by 

the statute and is injured in a way the statute contemplates and seeks to prevent. See Restatement (Second) 

of Torts ' 286. For example, our Legislature could pass a statute prohibiting operation of a pick-up truck 

with unrestrained passengers in the back, or more particularly, with unrestrained impaired or minor 

passengers in the back. Vermont has no such law at present, however.

Garland=s relationship to Collins was that of a sober driver to his intoxicated 

friend/passenger. Garland=s role was temporary, limited, and voluntary B and also one that 

society seeks to encourage. Garland=s position was obviously unlike that of a common carrier, 

innkeeper, or custodian; nor could his relationship to Collins be said to approach that of a parent 

or employer, such that the imposition on Garland of an obligation to control Collins would be 

reasonable or fair or generally expected. 
7

Although the Vermont Supreme Court has not addressed the duty of a sober driver in this 

context, the Indiana Supreme Court has faced the question in a case with similar facts. See 

Stephenson v. Ledbetter, 596 N.E.2d 1369 (Ind. 1992). In Stephenson, Defendant Ledbetter was 

driving a group of friends home from a night of drinking. Ledbetter was driving a pick-up truck, 

and Miller, the plaintiff=s decedent, was riding in the open back. Miller was sitting on the side of 

the bed, at times leaning forward toward the driver=s window to talk to Ledbetter. Miller then 

fell, suffering fatal head injuries. Ledbetter had not been driving in a negligent manner, and 

nothing about his driving caused or contributed to the fall. Nonetheless, Miller=s family argued 

Ledbetter should be liable because he did not prevent Miller, who he knew to be intoxicated, 

from riding in the back, sitting on the edge of the truck, and leaning forward. The Indiana 

Supreme Court rejected this argument and affirmed the trial court=s grant of summary judgment 

for Ledbetter, holding that intoxicated passengers are responsible for their own conduct, and that 

the driver did not owe the intoxicated passenger a duty to protect the passenger from the 

consequences of the passenger=s own negligence. It noted that as a matter of social policy, we 

want to encourage people to give rides to intoxicated persons, and that holding drivers 

responsible for the actions of intoxicated passengers could dramatically cut against this policy. 

596 N.E.2d at 1373. Cf. also Senese v. Peoples, 626 F.Supp. 465, 468 (M.D. Pa. 1985) (motion 

for summary judgment granted for defendant driver of pick-up truck whose intoxicated passenger 

fell while trying to climb from cab through window into back of truck; there is no duty to prevent 

passenger from injuring himself when passenger has placed himself in position of peril).3

 

 

3

Plaintiffs cite Industrial Waste Service, Inc. v. Henderson, 305 So. 2d 42 (Fla. Dist. Ct. App. 

1974), in which a Florida appellate court affirmed a jury=s verdict for the family of a man killed while 

engaging in horseplay on the running board of a slowly moving truck, even though the decedent was 
8

The Court finds the Indiana and Pennsylvania decisions persuasive. Thus, consistent with 

both the policy favoring designated drivers and the common law (Restatement) principles 

discussed above, the Court concludes that Garland, as a sober driver, did not have a duty to 

protect Collins, his intoxicated passenger, from the consequences of Collins= own negligent 

conduct. 

 Similarly, Garland cannot be liable as one who voluntarily undertook a duty to protect 

Collins. See Restatement (Second) of Torts, ' 323. Garland undertook to drive Collins, and 

implicitly to drive him in a non-negligent manner. However, he did not undertake to protect 

Collins from other dangers not caused or created by the manner in which Garland was driving. 

Cf. Mulvihill v. Union Oil Co., 859 P.2d 1310, 1313-14 (Alaska 1993) (nature and extent of duty 

undertaken is question of law for court; and extending duty of sober driver beyond agreement to 

drive would be poor policy, as it would jeopardize designated driver movement). 

It follows that Plaintiffs= second theory of liability also fails as a matter of law, and that 

Garland is entitled to summary judgment. 

 

intoxicated at the time and put himself in a position of peril. However, the Court does not find Henderson

persuasive because it does not appear from the opinion that the nature of the duty was raised or addressed 

in the opinion. 

ORDER
9

Defendant Garland=s motion for summary judgment is therefore GRANTED. 

Dated at Newfane, Vermont, this ____ day of November, 2005. 

_____________________________ 

John P. Wesley 

Presiding Judge