Estate of Larrow v. Vincent, No. 1507-01 Cncv (Katz, J., July 19, 2004)



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STATE OF VERMONT                                       SUPERIOR COURT
Chittenden County, ss.:                            Docket No. 1507-01 CnCv



LARROW ESTATE

v.

VINCENT



                                   ENTRY



        Two young couples spent the evening snowmobiling and stopping
at a bar along the way. They shared a small bottle of schnapps on the trail
and bought drinks at the bar. On the way home, plaintiff’s decedent
crashed into a tree and was killed. She was intoxicated at the time.
Defendants now seek summary judgment, asserting they owed no duty,
lack of proof of furnishing alcohol, and absence of an employment
relationship with the asserted primary wrongdoer.
        Defendant Christopher Vincent was fiancé of decedent and is
sometimes referred to in argument as “the leader” of the snowmobile
group. He is asserted to have furnished alcoholic beverages to decedent,
for which liability should attach. See Knight v. Rower, 170 Vt. 96, 101
(1999) (noting that furnishing requires an affirmative act or active part in
providing the alcohol). We find no citation to anything in the record from
which a jury could reasonably infer that Mr. Vincent actually so
furnished. The schnapps appears to have been passed around, but there is
no evidence as to who purchased it or otherwise introduced it into the
group. With no direct evidence of his having furnished the alcohol, how
may the jury reasonably infer that fact? Inherently, plaintiff is suggesting
that, as the older male, or as fiancé, he should be found to have so acted.
Removing age and gender from the equation, there is only a one in four
chance that Vincent furnished the schnapps. Although totally speculative,
the odds may have been even smaller at the bar, for Vincent was playing
pool there while the two women were talking, and there is direct evidence
from Mr. Gulla that decedent purchased her own drinks. Plaintiff suffers
the burden of proof on this factual issue; it offers no admissible evidence
to meet that burden. Conjectures formulated through hindsight are
insufficient to meet the burden of proof. Mello v. Cohen, 168 Vt. 639,
641 (1998).

      Plaintiff seems to argue that Vincent’s denials of furnishing alcohol
should be disbelieved, in view of some untruthful statements he earlier
made on the subject. Aside from the fact that evidence is not weighed on
summary judgment, Messier v. Metropolitan Life Ins. Co., 154 Vt. 406,
409 (1990), this suggestion does not constitute any affirmative evidence.
The impeachment value of a prior, untruthful statement may at trial
logically detract from the weight otherwise to be placed on a witness’s
statement. But here, there is no affirmative evidence in the first place,
from the party suggesting the impeachment. Zero, minus something, does
not equal affirmative evidence. Less than nothing is still nothing, when
one shoulders the burden of proof.

       Plaintiff’s claim for negligence is based primarily on dicta from
Langle v. Kurkul, 146 Vt. 513, 521 (1986). In that case, the Court
rejected plaintiff’s appeal to extend liability to a social host who furnished
alcohol before plaintiff’s accident but suggested that it might be more
sympathetic if a social host furnished alcohol to one who was visibly
intoxicated and who would foreseeably drive. Id. The Court clarified its
position further in Knight when it emphasized the need for a plaintiff to
prove that the defendant exercised a certain amount of direct control over
both the immediate social situation and the alcohol. 170 Vt. at 101. Both
are necessary to establish this duty, and the failure of one is enough to
withhold liability. Id. In this case, like Knight, plaintiff has no evidence
that Vincent furnished or in any significant way controlled the alcohol that
Larrow consumed and that contributed to her accident. Id. at 101–02.
Therefore, we decline to extend liability to Vincent for Larrow’s
intoxication. We note as well that Knight also does not fully embrace the
Langle dicta and demonstrates a studied reluctance to extend to
individuals the affirmative duty of care over the acts of someone who
voluntarily consumes alcohol. Id. at 107. While “Friends don’t let friends
drive drunk” is sound social advice, it is not necessarily an affirmative
duty.

      Plaintiff’s remaining claim of negligent entrustment is against both
Vincent and his father’s company, Top Cat Motors, Inc. For the later,
plaintiff argues that Top Cat knew plaintiff was a recovering alcoholic
who had begun drinking again and should not have allowed her to take the
snow machine out. Assuming for the moment that Top Cat knew Larrow
and Vincent intended to go out on the trails that night, there is no evidence
that Top Cat had any knowledge that the group was planning on
consuming alcohol or that Larrow tended to become intoxicated while
driving the snow machine. Certainly, Top Cat had no direct knowledge of
Larrow’s intoxication. Plaintiff does not allege that Larrow was
intoxicated when she purchased her snow machine, nor did anyone talk
about their plans, if they had any, to drink alcohol to Top Cat at the time
of purchase. Plaintiff argues that Top Cat should have known that Larrow
would get drunk and mishandle the snow machine based solely on its
knowledge that Larrow was an alcoholic who had recently fallen off the
wagon. Such knowledge, however, falls far short of the examples
provided in the Restatement (feeble-minded girl entrusted with a gun, an
epileptic given a car, lending a car to a friend for a dance at which friend
is known to become habitually intoxicated) and relevant case law. Vince
v. Wilson, 151 Vt. 425, 429 (1989) (defendant purchased car for nephew
who was inexperienced, had failed driving test several times, had no
driver’s license, and abused drugs and alcohol).

       This requisite knowledge may be broken down into three
categories: 1) knowledge that person is in a class of people notorious for
misuse (feeble-minded); 2) specific knowledge of an intent to misue; or 3)
knowledge of person’s character or circumstances that give the seller good
reason to believe it will be misused. Restatement (Second) of Torts § 308
cmt. b. Since Larrow was not in a class of people notorious for misuse
nor did Top Cat have knowledge of any intent for misuse, its knowledge
can only be attributed to the third category of reputation. Only the
reputation for abusing alcohol is present here. There is no evidence that
Larrow tended to drink while driving snow machines or that her relapse
meant that she would now be constantly consuming alcohol. The real
implication that plaintiff makes is that anyone not in good standing with
AA cannot be trusted to purchase snow machines. This is beyond the
logic of either the Restatement or Vince where reputation knowledge is
similar situations is grounded in joint knowledge of alcohol abuse and
reckless tendencies. Vince, 151 Vt. at 429. Without further knowledge
that Larrow intended to drive the snow machine drunk or had a reputation
for such recklessness, there is no reason to impute that knowledge on Top
Cat solely from hindsight.

        As to Vincent’s liability for negligent entrustment, the evidence is
similar. We will assume for the purposes of this motion that Vincent was
employed by Top Cat. Like Top Cat, there is no evidence that he knew
Larrow intended to become drunk that evening on their trip, and there is
no evidence that he knew or that Larrow had a reputation for reckless
behavior on snow machine. Plaintiff suggests that perhaps Larrow was
given too large of a snow machine to handle with her skills, but absent
some evidence that she was incompetent or reckless on them, we will not
impute such a conclusion. See Restatement (Second) of Torts § 307 cmt.
a, cited in id. at § 308 cmt. c (“He is entitled to act upon the assumption
that a human being whom he uses is competent, unless he knows or
should know that the particular person he uses is incompetent . . .”).
Without the requisite knowledge, Vincent had no reason to believe that
Larrow would be incompetent with her snow machine at the time she
purchased it. That she became intoxicated and drove the snow machine
after Vincent and Top Cat supplied her with it is tragic, but the result
cannot be retroactive imputed to Vincent or Top Cat for the purposes of
liability.

     Based on the foregoing, defendant Christopher Vincent and Top
Cat Motors, Inc.’s motions for summary judgment are granted. Plaintiff’s
claims against these defendants are dismissed.



      Dated at Burlington, Vermont, _________________, 2004.




                                           __________________________
                                                                Judge
