by Mike Donoghue

A version of this news story appeared in The Islander newspaper this week.

NORTH HERO — An elderly long-distance runner who collided with a passing trailer has lost his legal efforts to collect money for injuries received in the accident five years in Grand Isle County.

Frank Driscoll, 74, of North Hero had filed a civil lawsuit against Wright Cut & Clean of Alburgh and one of its employees, Benjamin Wright, for the accident on East Shore Road in Isle La Motte about 10 a.m. July 18, 2018.

The long-delayed trial finally got before jurors last week, but they never got to decide after the 4-day trial.  Vermont Superior Court Judge Samuel Hoar Jr. ordered the case dismissed after lawyers for the plaintiff had presented their case.  The defense asked for a directed verdict in its favor before presenting any witnesses.  The judge agreed.

Defense lawyer Susan Flynn of Burlington had poked various holes in the case and was able to show neither Wright nor the landscape company were liable. 

Driscoll was running on the left side of the road against traffic on a straight away with a guardrail on his left between him and Lake Champlain, court records show.

Also headed the same way was a 2015 GMC truck with three employees towing a 16-foot long, 7-foot-wide trailer carrying 2 commercial riding mowing lawn mowers,  Driscoll’s lawsuit said.

Flynn said it was undisputed Wright, the driver, was well below the speed limit and had pulled as far to the right as possible as he approached the jogger from behind.

Evidence also showed Driscoll moved to his left as the truck approached him on the gravel road, Flynn said.

Wright slowed to under the 25 miles per hour speed limit and pulled to the right to go past the runner.  As the truck passed Driscoll, he was apparently unaware of the trailer and he pulled back toward the center of the road and collided with the trailer, Flynn said.

The lawsuit maintained Wright was driving too fast in the 25 mph posted speed zone.  However, a Vermont State Police Crash Reconstruction expert estimated the truck speed was between 14.5 and 19 mph, records show.

Flynn said Vermont law recommends drivers provide 4-feet of clearance when passing vulnerable people on the road. 

Flynn said she earlier helped get a traffic ticket thrown out in court for Wright reportedly failing to use due caution when passing a vulnerable user.

Driscoll’s lawyers, Cindy Broadfoot of Burlington and Vanessa Branon Kittel of St. Albans did not return phone calls seeking comment about the trial.

Then-Deputy Sheriff Robert Currier Sr. of the Grand Isle County Sheriff’s Department said when he arrived at the scene Driscoll was face down and unresponsive.  He appeared to have a head injury.

Currier checked for a pulse and Driscoll became conscious, according to the deputy’s report.  Driscoll tried to get up and at one point said he needed to complete his run, Currier wrote.

Driscoll was about 10 miles into a 20-mile run that morning, the lawsuit said.  

Currier said Alburgh Fire and Rescue responded and took Driscoll to Northwestern Medical Center in St. Albans and the deputy said he later learned the patient was transferred to the UVM Medical Center in Burlington.  

Currier said in his official report he tried a few times in the following days to interview Driscoll, but family members reported three weeks after the crash that he did not recall what happened.

The other two employees were David Boutah and Daniel Irish.

Flynn said in the end it came down to a battle of the crash experts retained by each side.

The three-count lawsuit had claimed negligence by both Wright and the company and for employer negligence in hiring and training an employee.

The case was scheduled to go on trial in February, but when it came to jury selection, a large number of potential jurors never arrived at the courthouse.  The court ran out of jurors and the judge called off the trial.