## Facts

- O. Pitman Keller, as administrator of the estate of a 28-year-old registered nurse (decedent), sued Carl E. DeLong, Jr. for wrongful death arising from a one-car crash.
- On April 14, 1963, the decedent and DeLong left Laconia, New Hampshire late in the afternoon and traveled toward Lowell, Massachusetts.
- During the trip they stopped in Bow, New Hampshire, where both drank some beer, and later stopped at a restaurant in Concord for sandwiches and additional beer.
- Until shortly before the accident, the decedent drove her own car.
- Near the Massachusetts line, at the decedent’s request, DeLong took over driving and the decedent went to sleep in the passenger seat.
- A few miles after DeLong began driving, at approximately 11:40 p.m. in Tyngsboro, Massachusetts, the car collided with a utility pole, fatally injuring the decedent.
- In a bench trial, the court found the sole cause of the collision was that DeLong dozed off and did not awaken in time to avoid striking the pole.
- The trial court nevertheless found DeLong was not negligent because, after he took the wheel, he had no warning he was about to fall asleep and “suddenly and unexpectedly” dozed.
- The record contained evidence that DeLong had been sleepy and had dozed before the accident (including while a passenger shortly before driving), and that the windows were up and the heater was on.

## Issues

1. In a wrongful-death action based on a driver falling asleep, may the factfinder assess due care only by what occurred after the defendant began driving, while disregarding evidence of drowsiness and prior dozing before he took the wheel?
2. Where the record contains evidence of pre-driving drowsiness and no evidence of steps taken to stay awake, was it error to find the defendant “suddenly and unexpectedly” fell asleep without advance warning and therefore was not negligent?

## Decision

- The Supreme Court of New Hampshire sustained the plaintiff’s exceptions, set aside the judgment for the defendant, and ordered a new trial.
- The court held the operator’s care could not be judged solely by events after he took the wheel when there was evidence he was drowsy and had dozed shortly before driving.
- The court held that, on this record, the finding that DeLong “suddenly and unexpectedly” dozed without warning was erroneous in the absence of evidence that he took reasonable precautions to arouse himself before driving.
- The court did not hold DeLong negligent as a matter of law; it required a new trial so negligence could be evaluated under the correct approach and with all relevant evidence.

## Legal Principles

- A driver who falls asleep while operating a motor vehicle is ordinarily negligent if, after warning signs of drowsiness or fatigue, the driver continues to drive (or begins driving) without taking reasonable precautions against sleeping.
- The due-care analysis is not limited to the moment after driving begins; it includes the driver’s condition and conduct immediately before taking control when those facts bear on whether the driver had warning signs.
- A finding that sleep was “sudden” and “unexpected” is not supported when the record shows prior drowsiness or prior dozing and the record lacks evidence of reasonable steps taken to stay awake.

## Conclusion

The court ordered a new trial because the trial court evaluated DeLong’s conduct too narrowly by focusing only on what happened after he began driving and by treating his sleep as sudden and unforeseeable despite evidence of earlier drowsiness and no showing of reasonable precautions to prevent falling asleep.


Keller v. DeLong, 231 A.2d 633 (1967)