On an otherwise ordinary Thursday, Stephen Pcolar showed up at a friend’s condominium in South Burlington, Vt., to help him clean out his dirty garage. Among other things to do, Pcolar broke down and cut up cardboard boxes into flat sheets.

Sometime in the early afternoon, a garbage truck operated by Casella-owned All Cycle Waste arrived to pick up trash containers as part of its regular route through the development. One of the men asked the driver, Robert Smith, if the cardboard sheets could be added for disposal. Smith agreed.

The truck was equipped with a side-mounted automated gripper arm, which extends from the vehicle’s body, grabs a standard 96-gallon cart from the curb, lifts it above the truck, dumps the cart’s contents into the truck hopper, and returns the cart to the ground. Smith told Pcolar to lay the sheets on top of the horizontal jaws of the arm. The plan was to hoist the cardboard sheets and drop them into the truck.

Pcolar stacked the cardboard on top of the arm. As the arm rose, some of the sheets fell to the ground. Seeing what happened, he then moved close to the truck and began picking up some of the fallen cardboard. Although eyewitness accounts vary on exactly what happened in the next few moments, what’s clear is Pcolar was hit by the gripper arm as it dropped down.

Nothing in the court record explains why Pcolar filed his own lawsuit and handled pre-trial matters by himself. The complaint named All Cycle Waste and Smith as defendants, and alleged that the blow from the gripper arm injured his head, neck, shoulders and back. He blamed his injuries on the driver’s negligence in operating the arm.

After a two-day trial where only Pcolar and Smith testified, the judge submitted the case to the jury with an instruction on comparative negligence. Jury instructions are essentially an explanation of the legal rules that jurors should follow when deciding a case. A judge might say, “If you believe A (set of facts), you must find X (verdict). If you believe B (set of facts), you must find Y (verdict).”

Under Vermont law, a plaintiff who is partially to blame for his injuries can still recover damages, but only if his carelessness was not greater than the combined negligence of the defendant or defendants. After deliberating only 90 minutes, the jury found Pcolar 70 percent liable and the defendants 30 percent liable. His pursuit of monetary damages thwarted, he appealed. On review, the state supreme court found sufficient evidence to uphold the verdict.

Among Pcolar’s many arguments on appeal, three are noteworthy. For one, he claimed the trial judge was wrong in denying his request to bring a garbage truck to the court parking lot for the jurors to inspect. But Smith had testified on the mechanics of the arm and Pcolar had presented to the jury a video showing the gripper arm in operation. “[T]he judge acted within her discretion [in determining] that a jury view of the actual truck was needless, cumulative evidence,” the opinion stated.

For another, Pcolar faulted the trial judge for blocking his deposition of Casella’s CEO. He wanted to get on record the CEO’s alleged offer to pay medical expenses and settle the case. However, the law in Vermont (and in most other states) says that an offer or promise to pay medical expenses stemming from an injury is inadmissible to prove liability for the injury.

Lastly, he objected to the denial of his eleventh-hour motion to postpone the trial. Although the case had been pending for more than two-and-a-half years, he apparently expected the judge to be sympathetic to the fact that his attorney, hired two weeks before the court date, would be unavailable then. Under the circumstances, forcing Pcolar to honor the schedule, even if he had to proceed without legal counsel, was not an abuse of discretion, the justices said.

[Pcolar v. Casella Waste Systems, et al., No. 2011-116, Vt. Supreme Ct., July 27, 2012]


Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: shanoff@knopf-brown.com.