Cushing v. Casella Constr.

• Court: Superior Court of Vermont
• Writing for the Court: DAVID BARRA SUPERIOR COURT JUDGE
• Citation: Cushing v. Casella Constr., 2025 Vt Super 121203, 23-CV-05216 (Dec 12, 2025)
• Docket Number: 23-CV-05216
• Decision Date: 12 December 2025
• Parties: Alexandra Cushing, et al v. Casella Construction, Inc., et al

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2025 Vt Super 121203

Alexandra Cushing, et al v. Casella Construction, Inc., et al

No. 23-CV-05216

Superior Court of Vermont, Civil Division, Addison Unit

December 12, 2025

ENTRY REGARDING MOTION

DAVID BARRA SUPERIOR COURT JUDGE

Title Motion for Summary Judgment (Motion: 6)

Filer Joseph M. Fiorello

Filed Date: September 26, 2025

This case follows a fatal road accident that occurred in Leicester, Vermont, on March 15, 2022. Plaintiffs Alexandra Cushing, Stephen Cushing, and Maiia Polischuk are the relatives of decedent Lyudmila Cushing. They allege that Defendants Norman Arnold and Casella Construction, Inc. operated an overloaded truck above the speed limit and crashed its front end into the vehicle operated by Ms Cushing, causing her pain and suffering, and death.

To that end, Plaintiffs bring three claims: (1) negligence against Defendant Casella Construction Inc., based upon a theory of vicarious liability for the negligence of its driver Norman Arnold, along with a direct negligence claim against Casella for negligent hiring, training, entrustment, supervision, and retention of Mr. Arnold, (2) negligence against Defendant Norman Arnold, and (3) a survival action on behalf of the estate of Lyudmila Cushing for pain and suffering, and emotional distress.

Before the court now is Defendants' motion for summary judgment on all counts. Plaintiffs oppose the motion. For the reasons that follow, the motion is GRANTED IN PART and DENIED IN PART.

I. Relevant Background

Plaintiffs brought their complaint on December 14, 2023. Defendants answered on January 18, 2024. The most recent discovery schedule provides that all written discovery be sent to the opposite party no later than November 1, 2025, witness depositions other than expert witnesses be scheduled and taken no later than February 1, 2026, dispositive motions, including summary judgment motions, be filed by January 2, 2026, and that discovery be complete and the case ready for trial by April 1, 2026. See Discovery Deadline Stipulation (filed Aug. 29, 2025); Action Order (filed Sep. 3, 2025) (adopting Discovery Deadline Stipulation).

Defendants filed the summary judgment motion on September 26, 2025. They move for judgment on all counts of the complaint, and their principal argument is that Plaintiffs cannot establish that Ms. Cushing's own negligence was not the proximate cause of the accident, her subsequent injuries, and death. They posit that to resolve their motion, the court need only view the video of the accident, MSJ Ex. E., which captured the collision in real-time and so represents an objective reconstruction of the accident, and determine that no reasonable juror could, after watching that video, determine that Ms. Cushing "was less than 51% at fault." Defendants' Reply Brief (filed Nov. 17, 2025) at 2 (emphasis deleted). If the court so determines, Defendants continue, this would operate to preclude Plaintiffs from recovering as a matter of law.

Defendants assert, in the alternative, that Plaintiffs' claims of Casella's direct negligence fail for lack of evidence of any negligent action or inaction.

II. Summary Judgment Standard

Summary judgment is appropriate when the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." V.R.C.P. 56(a). A fact is material only if it might affect the outcome of the case. O'Brien v. Synnott, 2013 VT 33, ¶ 9, 193 Vt. 546. In assessing whether a genuine dispute as to any material fact exists, courts construe "the facts presented in the light most favorable to the nonmoving party," Vanderbloom v. State, Agency of Transp., 2015 VT 103, ¶ 5, 200 Vt. 150, such that "the nonmoving party receives the benefit of all reasonable doubts and inferences," Pettersen v. Monaghan Safar Ducham PLLC, 2021 VT 16, ¶ 9, 214 Vt. 269. To that end, courts "accept as true the allegations made in opposition to the motion for summary judgment, so long as they are supported by affidavits or other evidentiary material." Robertson v. Mylan Laboratories, Inc., 2004 VT 15, ¶ 15, 176 Vt. 356.

"Where the moving party does not bear the burden of persuasion at trial, it may satisfy its burden of production by showing the court that there is an absence of evidence in the record to support the nonmoving party's case." Ross v. Times Mirror, Inc., 164 Vt. 13, 18 (1995). "The nonmoving party may survive the motion if it responds with specific facts raising a triable issue." State v. G.S. Blodgett Co., 163 Vt. 175, 180 (1995).

III. Facts

Viewing the evidence in the light most favorable to Plaintiffs, the following narrative emerges. Norman Arnold has worked as a truck driver for Casella Construction Inc. since 2013.

By the March 2022 accident, Mr. Arnold had had decades of experience operating commercial vehicles. He had never been involved in an accident while driving a commercial vehicle prior to being hired by Casella. Prior to March 15, 2022, Mr. Arnold had, indeed, never been involved in a car accident while driving for Casella.

On March 15, 2022, at approximately 3:22 p.m., Mr. Arnold was operating a Casella tractor-trailer on U.S. Route 7 in Leicester, Vermont. Route 7 is a two-lane roadway that passes through the Town of Leicester, Vermont. Leicester Whiting Road is a two-lane roadway that intersects Route 7 in Leicester. At the junction where the two roads meet, the posted speed limit is 50 mph. There is no traffic control signal or a STOP sign regulating traffic on Route 7 at the intersection with Leicester Whiting Road. But traffic heading eastbound on Leicester Whiting Road toward the intersection with Route 7 is controlled by a STOP sign. Leicester Whiting Road traffic stopped at the STOP sign must therefore yield to traffic on Route 7.

As Mr. Arnold was traveling southbound on Route 7 in the Casella tractor-trailer toward the subject intersection, Ms. Cushing was driving her 2013 Honda CR-V east on Leicester Whiting Road toward that same intersection. At approximately 3:22 p.m., the two vehicles collided. The collision was captured on a surveillance video of Mr. Jared Reed, whose residence is located on Route 7, just southeast of the subject intersection-the camera was placed on a residence at 2302 Fern Lake Road in Leicester, Vermont, and pointed toward the intersection of Route 7 and Leicester Whiting Road. See Ex. F, ¶¶ 7, 9, 14-16. Defendants offer that video to the court, MSJ Ex. E, and assert that it must rule for them, on the basis of that video, as a matter of law. Mr. James Ploof was moreover a direct witness to the collision; his pickup truck can be readily observed on the video, see MSJ Ex. E at 0:16, and he can be later seen running toward the vehicles after they had collided, id., at 0:22; Ex. H. His recollection of the events coincides with what the video depicts. See Ex. H.

The relevant portion of the video is short, at just 10 seconds. At approximately 0:08, Ms. Cushing's car enters the frame; she can be seen entering the frame on Leicester Whiting Road, approaching the intersection with Route 7 in Leicester. And although a STOP sign controls the intersection of Leicester Whiting Road and Route 7, Ms. Cushing's vehicle never comes to a complete stop before pulling onto Route 7. See MSJ Ex. E at 0:10-0:15. Ms. Cushing's vehicle can be observed slowing down, which could be potentially consistent with Plaintiffs' assertion that there was a sight obstruction at the intersection of the two roads. See id., at 0:14-0:15; see also e.g., Pl's.' Resp. SUMF, ¶¶ 11-12, 14-17, 20, 23, 25-28 (insisting that "Ms. Cushing's view at the stop sign was obstructed"). Still, Ms. Cushing's vehicle never comes to a complete stop. Her Honda then pulls onto Route 7, attempting a left-hand turn, without yielding Mr. Arnold's vehicle the right of way. See id., at 0:15-0:17. At 0:17, the vehicles collide. The force of the impact pushes the vehicles out of the frame, and both presumably come to a complete rest shortly after. See id., at 0:23 et seq.

Plaintiffs allege that Defendants' truck was driving 58 mph, above the posted 50-mph speed limit on Route 7, shortly before the collision. They also allege Defendants' truck was overloaded or overweight at the time of the collision. Defendants counter they had a valid excess weight permit and in any event, their vehicle was rated for a weight over what it was hauling at the time of the collision. While these assertions could be notionally deemed to create a triable issue at this stage, neither is material to the court's decision. Indeed, Defendants' motion is based on insufficient causation. See Driscoll v. Wright Cut & Clean, LLC, 2024 VT 49, ¶ 8, 219 Vt. 623 ("The absence of causation alone, even if we assume there was a breach of duty, warrants judgment in favor of defendants."). It is therefore immaterial whether Defendants breached a duty or were prima facie negligent. See Bacon v. Lascelles, 165 Vt. 214, 222-23 (1996) ("[P]roof of the violation of a safety statute creates a prima facie case of negligence. A prima facie case raises a rebuttable presumption of negligence and shifts the burden of production to the party against whom the presumption operates. When that party produces 'evidence .. fairly and reasonably tending to show that the real fact [is] not as presumed,' the presumption disappears." (citations omitted and alteration in original)). Whether a presumption of negligence operates against Defendants for speeding or driving an overloaded truck, a negligence claim still "requires injury and causation, and neither of these elements is established by proof of a violation of a safety statute, even if the defendant presents no evidence supporting the reasonableness of its actions. Ziniti...