WILLIAM WEAVER & a.
RANDALL STEWART & a.
Argued: May 3, 2016
McDowell & Osburn, P.A., of Manchester (Joseph F.
McDowell, III, Mark Morrissette, and Heather V. Menezes on
the brief, and Mr. Morrissette orally), for the plaintiffs.
CullenCollimore, PLLC, of Nashua (Brian J.S. Cullen and
Shelagh C.N. Michaud on the brief, and Mr. Cullen orally),
for defendants Town of Pelham, Derek Gioia, and Joseph Roark.
Shaughnessy & Campo, P.C., of Manchester (Michael P.
Johnson and Quinn E. Kelley on the brief, and Mr. Johnson
orally), for defendant Woody's Auto Repair & Towing,
plaintiffs, William Weaver, individually and as administrator
of the estate of his wife, Marceline Weaver, and James Sousa,
appeal decisions of the superior court granting summary
judgment in favor of the defendants, the Town of Pelham
(Town), Pelham Police Chief Joseph Roark, Pelham Police
Officer Derek Gioia (collectively, the Pelham defendants),
and Woody's Auto Repair & Towing, Inc. (Woody's).
case arises from an automobile accident allegedly caused by
Randall Stewart, the owner and driver of a vehicle that
collided with the plaintiffs. Stewart is not participating in
this appeal. The Trial Court (McHugh, J.) concluded
that, although the Pelham defendants are not immune from suit
under RSA chapter 507-B (2010) or under the common law, they
are entitled to summary judgment because of the lack of
evidence that they proximately caused the motor vehicle
collision that resulted in the plaintiffs' injuries. We
affirm the court's finding that there was insufficient
evidence that the Pelham defendants proximately caused the
accident. Accordingly, we need not address the Pelham
defendants' cross-appeal on immunity.
Trial Court (Anderson, J.) granted summary judgment
in favor of Woody's, concluding that: (1) because
Stewart's vehicle had been towed the night before the
collision pursuant to RSA 262:32 (2014), rather than
impounded pursuant to RSA 262:40 (2014), Woody's was not
required to obtain authorization from the police or a court
prior to releasing the vehicle the next day to its owner; (2)
Woody's cannot be liable for negligent entrustment of a
motor vehicle because of the lack of evidence that a
Woody's employee knew, or should have known, that the
owner was impaired when he picked up his vehicle; and (3)
given the absence of evidence demonstrating that Woody's
breached a duty owed to the plaintiffs, it is not liable for
negligence. We affirm.
relevant facts follow. At approximately 11:30 p.m. on June
25, 2010, Gioia responded to a call reporting that a person
was driving a vehicle erratically. He pulled the vehicle over
and identified the driver as Stewart. Gioia noticed an odor
of alcohol, observed that Stewart had glassy eyes, and
administered field sobriety tests that Stewart failed. Gioia
arrested Stewart for driving under the influence and called
Woody's, requesting that Woody's tow Stewart's
vehicle. At the scene, Gioia conducted an inventory search of
the vehicle, noting that the vehicle contained "Cds,
" "[m]iscellaneous pieces of clothing, " and
"1 can of beer."
took Stewart to the Pelham police station for booking.
Stewart refused to take a breathalyzer test. Gioia then
confiscated Stewart's license and provided him with a
copy of the Administrative License Suspension form that would
serve as his temporary license, see RSA 265-A:30
(2014). Gioia charged Stewart with, among other things,
driving while under the influence. At approximately 1:30
a.m., Gioia transported Stewart to a home in Windham.
According to Gioia, at that time, Stewart appeared to be
a.m., and again at 7:23 a.m., Stewart telephoned the Pelham
Police Department and spoke briefly with Gioia. In response
to Stewart's questions, Gioia told him that his vehicle
was at Woody's and that he could retrieve it after
Woody's opened for business at 9:00 a.m. In his
deposition Gioia testified that, during the 6:49 a.m.
telephone call, Stewart "sounded better" than he
did the night before. Gioia testified that he understood
everything Stewart said, and it "sounded like"
Stewart understood everything that Gioia said to him. Gioia
also testified that Stewart sounded the same during both of
the early morning telephone calls. According to Gioia, these
telephone conversations "sounded like a normal course of
conversation [that he] would have with any citizen that
point after 8:30 a.m. and before 10:00 a.m. Stewart arrived
at Woody's, paid the towing and storage charges, and
retrieved his vehicle. Brendan Wood, who owned Woody's,
testified in his deposition that Stewart did not appear to be
impaired when he picked up the vehicle. At approximately
11:19 a.m., Stewart telephoned the police station and left an
incoherent voicemail message for Gioia.
approximately noon, Stewart drove his vehicle into oncoming
traffic in Hampstead, striking the plaintiffs who were riding
on motorcycles. The plaintiffs were severely injured, and
Weaver's wife died. According to police officers at the
accident scene, Stewart exhibited signs of impairment, and
failed a field sobriety test. Following the collision,
Hampstead police conducted a search of Stewart's vehicle
and found a Xanax prescription "tag" in the
"back seat area." According to Edward J. Barbieri,
Ph.D., a forensic toxicologist retained by Stewart, multiple
drugs, including Xanax, were detected in blood samples taken
from Stewart after the accident.
September 2012, the plaintiffs sued the Pelham defendants and
Woody's. In their action against the Pelham defendants,
the plaintiffs asserted several negligence claims, including
negligent entrustment of a motor vehicle. In February 2014,
after the parties had an opportunity to conduct discovery,
the Pelham defendants moved for summary judgment arguing
that: (1) they were immune from liability under RSA chapter
507-B because the plaintiffs' claims did not arise out of
the Pelham defendants' "ownership, occupation,
maintenance or operation" of motor vehicles or premises;
(2) they were entitled to official immunity under the common
law; and (3) the plaintiffs offered no evidence that any act
or omission by the Pelham defendants proximately caused the
accident. (Quotation omitted.)
plaintiffs objected, asserting that the Pelham defendants
mischaracterized their negligence claims "as solely a
failure to hold Mr. Stewart in custody after his . . . June
25, 2010 arrest in an effort to create immunity where none
exists" and that, rather, "[t]his case is about the
negligent entrustment of a motor-vehicle [sic]
seized and controlled by the Pelham PD to an intoxicated Mr.
Stewart on the morning of June 26, 2010." The plaintiffs
argued that RSA 507-B:2 allows ...