STATE of Vermont v. Chad S. FREE
No. 99-183
Vermont Supreme Court
February 17, 2000
[749 A.2d 622] | 171 Vt. 605
Although father attempts to characterize the decision below as one that relies solely on the children‘s bond with their “psychological parents,” see In re J. & J.W., 134 Vt. 480, 485, 365 A.2d 521, 524 (1976), this is not a case in which the court ignored its obligation to consider the statutory factors of
Because of the lack of significant contact between C.H., M.H., and their father, and, because of the positive interaction of those children with their foster parents, it is considered most unlikely that [father] will be able to resume parental duties within a reasonable period of time.
Indeed, the court noted that
Father argues that findings that he visited the children only twice in two-and-one-half years and that he did not participаte in parenting classes as required by the case plan are not sufficient to support the court‘s conclusion that it is “most unlikely that [father] will be able to resume parental duties within a reasonable period of time.”
The family court‘s conclusions will be uрheld if they are supported by the findings, see In re J.B., 167 Vt. at 639, 712 A.2d at 897, and we will uphold the findings unless they are clearly erroneous. See id. The court‘s conclusion that the State has shown by clear and convincing evidence that termination is in the best interests of the children is supported by findings, аnd, therefore, we will not disturb the court‘s termination of father‘s parental rights.
Affirmed.
Motion for reargument denied February 15, 2000.
February 17, 2000. Defendant was charged with grossly negligent operation of a motor vehicle, death resulting. See
In reviewing a
Here, the relevant facts are not in dispute. On September 29, 1998, defendant was driving down Main Street in Bennington, Vermont, during daylight hours. He was traveling at thirty miles an hour, consistent with the posted speed limit, and slowed down to approximatеly ten to fifteen miles an hour as he entered the intersection of Main and Morgan Streets. Just before defendant turned left onto Morgan Street, he noticed a van on his left stopped at a stop sign on Morgan, waiting to cross Main Street. However, he did not nоtice Arthur Lemieux, who was walking across Morgan Street, in front of the van, in a well-marked crosswalk. As defendant turned on to Morgan Street, his car struck Lemieux. Lemieux was injured and died three months later, allegedly as a result of injuries sustained in the accident. Defendant wаs not aware of Lemieux‘s presence until his car actually hit Lemieux. According to an accident reconstructionist who testified at the motion hearing, Lemieux had walked about three-quarters of the way across the twenty-eight-foot crosswalk when he was struck by defendant‘s car. He further testified that the average person walks four-and-a-half feet per second. Therefore, he concluded that Lemieux had been in the crosswalk for four to five seconds prior to being hit by defendant‘s car. The State argues that these facts tend to show that defendant is guilty beyond a reasonable doubt of grossly negligent operation.
Gross negligence is defined as “conduct which involved a gross deviation from the care that a reasonable person would have exеrcised in that situation.”
In the civil context, we have emphasized that gross negligence is more than a mere error in judgment, loss of presence of mind, or momentary inattention. Rather, it is an indifference to the duty owed to another, and the failure to exercise even a slight degree of care. See Hardingham v. United Counseling Service, 164 Vt. 478, 481, 672 A.2d 480, 482 (1995). See also Shaw, Adm‘r v. Moore, 104 Vt. 529, 531, 162 A. 373, 374 (1932) (“Gross negligence is substantially and appreciably higher in magnitude and more culpable than ordinary negligence. . . . It is a heedless and palpable violation of legal duty respecting the rights of others.“).
The question of whеther a defendant was grossly negligent is generally left to the factfinder. See Hardingham, 164 Vt. at 481, 672 A.2d at 483. However, where reasonable minds cannot differ, the court can decide the question as a matter of law. See id.
According to the State, this case rises above ordinary nеgligence, into the level
This Court has examined the concept of grossly negligent operation of a motor vehicle in two recent cases. In State v. Devine, 168 Vt. 566, 719 A.2d 861 (1998) (mem.), the evidence, viewed in the light most favorable to the State, showed that, for several days before the accident, the defendant drank alcohol, smoked marijuana, and got little sleep. On the day of the accident, he had difficulty staying awake and, in faсt, shortly before the accident, fell asleep in his car. Further, on the day of the accident, road conditions and visibility were good. Immediately before the accident, the defendant was speeding, crossed the double yellow line and crossed two lanes of oncoming traffic. Without attempting to slow down or move out of the way, the defendant drove straight into another car, killing the driver. Immediately after the accident, the defendant did not realize that his car had struck another vehicle. We held that these facts were sufficient to support a finding that the defendant was guilty of grossly negligent operation. See Devine, 168 Vt. at 567, 719 A.2d at 863.
In Koch, the evidence, viewed in the light most favorable to the State, showed that the defendant was driving during daylight hours, with good road conditions and good visibility. He had an unobstruсted line of sight of 1200 feet and should have been able to see the victim standing at the side of the road for at least twenty seconds prior to the accident. We held that these facts were sufficient to support a finding that the defendant was guilty of grossly negligent operation. See Koch, 171 Vt. at 760, 760 A.2d at 507.
Both of these cases involved more than a mere error in judgment, loss of presence of mind, or momentary inattention. In Devine, the defendant was tired, was speeding, crossed two lanes of traffic, and did not realize that he had hit another car. In Koch, the defendant had been inattentive for at least twenty seconds prior to striking the victim with his car.
Here, by contrast, there was no evidence that defendant was speeding at any time, that he drove through a red light or a stop sign, that he was under the influence of any intoxicating substances, or that he was inattentive to anything other than Lemieux. We have found no case, either in Vermont or in any other jurisdiction, where a defendant‘s inattention for three to four seconds, without any other indicia of negligence, was held to be sufficient to support a conviction of grossly negligent operation. See Plummer v. State, 702 A.2d 453, 465 (Md. Ct. Spec. App. 1997) (defendant not grossly negligent where evidence showed he drifted onto shoulder of road, then on to curb, and killed pedestrian); People v. Maloof, 678 N.Y.S.2d 175, 176 (App. Div. 1998) (defendant not grоssly negligent where she failed to see pedestrians and drifted on to shoulder of road); Commonwealth v. Heck, 535 A.2d 575, 576 (Pa. 1987) (facts insufficient to establish gross negligence where defendant made left-hand turn and struck motorcycle);
We conclude that, under the circumstances of this case, evidence of defendant‘s inattention to а pedestrian for three to four seconds indicates, at best, a mere error in judgment, loss of presence of mind, or momentary inattention. It does not, however, indicate an indifference to the duty owed to another, or the failure to exercise even a slight degree of care, as is required for a conviction of gross negligence. See Hardingham, 164 Vt. at 481, 672 A.2d at 482. Therefore, we hold that the evidence presented by the State is not sufficient to carry its burden under
Affirmed.
Dooley, J., dissenting. I argued in the dissent in Hardingham v. United Counseling Service, 164 Vt. 478, 487, 672 A.2d 480, 486 (1995) (Dooley, J., dissenting), that, based on оur experience in applying our guest-passenger statute, it was difficult, if not impossible, to perform in a principled fashion the line-drawing required to determine whether negligence could be found to be “gross” in a particular case. I urged that the only reasonable course is to “leave the decision of whether gross negligence was present to the jury except in the most extreme cases.” Id.
This is not a most extreme case. It might be distinguished from our decision in State v. Koch, 171 Vt. 760, 760 A.2d 505 (2000), in degree, but not in kind. On this point, I agree with Justice Johnson‘s observation in dissent in Koch that the decisions in this case and Koch are “irreconcilable.” Id. at 760, 760 A.2d at 509. In both cases, defendant ran down a pedestrian who was in a lawful place in or near the road. In Koch, defendant had a longer period to view the spot where the pedestrian was standing, when struck, but there was no evidence that the pedestrian was in that spot during the entire period of observation. In any event, I do not find the time of observation as significant as the majority because in this case defendant was turning across a pedestrian crosswalk. Obviously, a driver‘s duty to watch the road is related to the circumstances that confront him and the place and manner of operation. See Emery v. Small, 117 Vt. 138, 140-41, 86 A.2d 542, 543 (1952) (collision with parked truck could be found to be gross negligence where, at night, defendant had up to 4.5 seconds to see it). It is one thing to say thаt a few seconds of inattention is not gross negligence as a matter of law when a driver is proceeding along a straight, dry road during the day; it is quite another to say so, when the driver is turning across a pedestrian crosswalk. In this case, it is as if defendant closed his eyеs and then turned left into Morgan Street and proceeded across the crosswalk and up that street without opening them.
If I were a juror, I would probably vote for the majority result. As a Justice of this Court, however, I must vote to allow the jury to decide.