Durkee v. Frazier
| Docket Number | 21-0966 |
| Decision Date | 15 September 2023 |
| Parties | Michael J. Durkee, Petitioner Below, Petitioner v. Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Respondent |
| Court | West Virginia Supreme Court |
Petitioner Michael J. Durkee appeals the October 6, 2021, order of the Circuit Court of Kanawha County denying his petition for judicial review and affirming the finding of the Office of Administrative Hearings ("OAH") that petitioner proximately caused the death of his wife while driving under the influence ("DUI"). Respondent Everett Frazier Commissioner of the West Virginia Division of Motor Vehicles (hereinafter "DMV"), responds in support of the order.[1] Upon our review, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court's order is appropriate. See W.Va. R. App. P. 21.
On May 24, 2020, petitioner and his family were riding four-wheel all-terrain vehicles ("ATVs") in Hampshire County West Virginia. One of the ATVs malfunctioned, and it was determined that petitioner would tow the malfunctioning ATV with a nylon rope behind the other ATV. Petitioner's wife and daughter rode on the towed ATV. Petitioner drove his ATV up an embankment, and when his ATV crested the hill, the tow rope slackened then snapped, sending the towed ATV off the path and out of control. Petitioner's wife pushed their daughter off the ATV just before the ATV crashed into a tree. Petitioner's wife was thrown down an embankment and into a stream to her death.
When the investigating officer arrived on the scene of the accident, he found petitioner exhibited physical signs of being under the influence of alcohol, and petitioner admitted to having a "couple of beers" with brunch. Petitioner was arrested for DUI, and pled guilty to a simple DUI charge. The DMV issued an order revoking petitioner's license on January 21, 2021, for "proximately caus[ing] the death of another person while acting in reckless disregard of the safety of other people." Petitioner requested an administrative hearing before the OAH solely on the issue of proximate cause.
At the OAH hearing, both the investigating officer and petitioner testified. The investigating officer testified that he had arrested the petitioner for DUI because petitioner was operating the ATV under the influence of alcohol. The officer admitted that he did not know the speed of the ATV at the time of the accident or if petitioner was operating it erratically. The officer also admitted that he had no evidence that petitioner was operating his ATV in reckless disregard for the safety of anyone. Petitioner testified that the accident happened quickly, explaining that when the rope snapped and the ATV went out of control, his wife "grabbed [their daughter] and pushed her off of the four wheeler, and, that was all the time that she had to react, so she, with her hands off the handle bars pushing [their daughter] she was not able to use the brakes and didn't have time to hold onto anything before she impacted the tree." On cross-examination, petitioner agreed that ATVs can be dangerous and that "there's always a chance someone could get hurt." He was asked if "it's also reasonable to maybe think, oh, the rope could break, it could come off, something bad could happen." He responded, "Always a possibility." While he admitted he had consumed a few beers before towing the ATV, he claimed his judgment was unaffected. Relevant to his arguments before this Court, he provided no evidence that the ATV was equipped with a footbrake, nor did he argue that his wife's failure to use a footbrake constituted an unforeseeable, intervening cause sufficient to break the causal connection between his DUI and her death.
The OAH entered an order on April 28, 2021, revoking petitioner's license for five years under West Virginia Code § 17C-5A-2(h).[2] The OAH found that there was no dispute petitioner consumed alcoholic beverages prior to driving and that to do so is "inherently dangerous." It further concluded that towing another vehicle, ridden by two people, up an embankment with a rope while intoxicated is "most certainly acting in reckless disregard of the safety of others." The OAH also found that petitioner's testimony established that he knew it was possible that the rope could break and that someone could get hurt. The OAH concluded, by a preponderance of the evidence, that petitioner proximately caused the death of another person while acting in reckless disregard of the safety of other people and DUI.
Petitioner filed a petition for judicial review of the administrative decision in the Circuit Court of Kanawha County. Before the circuit court, petitioner argued the OAH was clearly wrong based on the evidence in the case. He relied on the testimony from the investigating officer who stated he had no evidence of speeding, no evidence of erratic driving, and no evidence of reckless disregard for the safety of others. However, the officer also testified, and it was admitted, that petitioner consumed alcohol prior to driving the ATV and towing the ATV and was DUI. Among other things, petitioner also contended that just prior to being thrown from the ATV, petitioner's wife had the ability to control it and engage handbrakes[3] and that this should be considered as an intervening cause.
Respondent argued in support of the OAH's decision, relying on State v. Nester, 175 W.Va. 539, 336 S.E.2d 187 (1985), where this Court held that the failure of a victim to take precautionary steps, such as wearing a seatbelt, that could have prevented death is not an independent, intervening cause of the victim's death. Respondent also argued that petitioner's use of the rope to tow the disabled ATV showed petitioner's lack of judgment and impairment. Citing State v. Green, 220 W.Va. 300, 647 S.E.2d 736 (2007), respondent contended that reckless disregard of the safety of others is synonymous with gross negligence. Respondent argued that the OAH's finding of an inherently dangerous activity was similar to this gross negligence standard.
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