Plea agreement in truck stop death case disappoints victim’s family, friends

David Elder in a circa. 2014 photograph. (Family photograph)

David Elder in a circa. 2014 photograph. (Family photograph)

By JOHN LIPPMAN

Valley News Staff Writer

Published: 12-04-2023 10:30 AM

Six years after a Vermont worker was struck and killed by a vehicle while he was servicing storage tanks at a truck stop in Wells River, the driver of the vehicle apologized to the victim’s family for his actions, while family members rebuked him in court. They expressed anger over what they see as a mere slap on the wrist with no jail time.

David Gilbo, 39, of Newbury, was convicted last Thursday on a single misdemeanor count of negligent operation in Washington County Superior Court in the death of David Elder, 55, of Ryegate. Gilbo was at the wheel of his Toyota pickup truck as it ran over Elder, who was cleaning storage tanks at the P&H Truck Stop on Route 302 in 2017.

Gilbo had originally faced a charge of grossly negligent operation with death resulting, a felony that could have resulted in up to 15 years in prison and a $15,000 fine if he had been found guilty.

A subsequent investigation into the incident by the Vermont Occupational Safety and Health Administration determined that the truck stop had not ensured appropriate safety protocols at Elder’s work site, the absence of which it said were contributory factors in the incident.

That finding by a state agency would likely have made the higher felony charge hard to stick had the case gone to trial.

Under the misdemeanor plea agreement, Gilbo was given a suspended prison sentence and placed on probation for two years.

He also must submit to periodic “anger management” evaluations, complete a driving safety course, perform 40 hours of community service, pay restitution and, engage and participate in restorative justice programming as part of his conditions of release, the Vermont Attorney General’s Office, which prosecuted the case, said in a news release.

According to police at the time, Gilbo was pulling away from the gas pumps at P&H Truck Stop on Sept. 10, 2017, when he struck and ran over Elder, a P&H worker who had been cleaning traps for the underground fuel tanks on a concrete pad near the fuel pumps.

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Gilbo told police that he didn’t realize anything was wrong until he heard the plastic buckets and cones that were set up to mark off the Elder’s work area dragging under his truck. He stopped, got out, looked back and saw Elder lying on the ground, he told police.

Prosecutors alleged that Gilbo accelerated his truck as he was leaving the pumps and was reckless in not paying attention to the white buckets and orange cones that designated Elder’s work area which they said any “reasonable and prudent” driver would have seen.

“David addressed the family directly and apologized for his inattention and expressed his remorse and sympathies for the loss of Mr. Elder,” David Sleigh, Gilbo’s defense attorney, told the Valley News on Friday.

During Thursday’s hearing in Barre, the court heard victim impact statements from six people, including two from Elder’s family members, who eulogized Elder as a son-in-law, husband, step-father, talented pen-and-ink illustrator, mentor and master Taekwondo instructor who was an inspiration and beacon to his students.

“He taught me that failing was part of learning and perseverance was the key to success … he taught me how to believe in myself (and) how to stay humble and take my successes with grace and dignity,” said Willow Schaefer, one of Elder’s Taekwondo students, according to court records.

Gilbo faced harsh words from Elder’s family members, who were incredulous over how long it took — more than six years — to get their day in court and excoriated the court for what they said was wholly inadequate punishment.

“Six long years of no accountability is beyond unfair,” said Elder’s stepdaughter, Ashley Wood, court records show.

Wood’s sister, who was identified in the court record only under her first name, Morgan, was more blunt.

“People are always asking us how we are doing and what kind of punishment you got,” Morgan said. “The general consensus when it’s learned that you served no time and will not, is utter disbelief.”

Susan Elder, of Chelsea, David Elder’s sister, was quoted on Thursday by WCAX-TV saying the plea agreement denied the family justice, which could only have been served by a jury trial.

“We’ve been waiting six years for justice,” Susan Elder said, according to WCAX-TV. “After six years of waiting a long time and preparing for a trial that we deserved, a trial David deserved.”

But the plea agreement appeared to take into account the post-accident investigation by the Vermont Occupational Health and Safety Administration, VOSHA, which, pointedly, the Attorney General’s Office referenced in its news release announcing the plea agreement and conviction.

Among the safety lapses VOSHA found the truck stop had made were failing to promulgate guidelines on how employees should take precautions around moving traffic on company property. In addition, no written “job hazard analysis” was done about safety precautions to take when cleaning the sumps.

There was also an “insufficient number of traffic cones to identify the work area,” according to the VOSHA investigation, which is included as an exhibit in the court record.

Elder was often observed by others not to wear high-visibility safety apparel while working.

The VOSHA report did not make a determination on whether or not Elder had been wearing “hi-vis” apparel on the day he was killed — but faulted his employer for providing both an inadequate supply of safety gear and not having “corrected” Elder for not wearing it.

The lack of those safety protocols “contributed to the incident” in which Gilbo at the wheel of his truck ran over Elder, concluded VOSHA.

“David deviated from the standard of care that a reasonable operator would’ve observed at the time,” Sleigh acknowledged about his client. “But that deviation was minimal and that’s why he pled guilty to a misdemeanor and that’s why he got no jail time.”

As to why the case took six years to reach disposition, Sleigh said that the COVID-19 pandemic, which led to an extensive backlog in Vermont court cases as the judiciary grappled with operating remotely, was partly to blame.

But Sleigh also said the VOSHA investigation, the findings of which he said undercut the felony charge and which he said prosecutors twice moved to exclude and each time failed, were also reasons for the long time it took to reach a resolution in the case.

Contact John Lippman at jlippman@vnews.com.