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Weaver v. Stewart

Supreme Court of New Hampshire, Rockingham

October 27, 2016


          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.

          Boyle, 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, Inc.

          BASSETT, J.

         The 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).

         This 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.

         The 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.

         I. Background

         The 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."

         Gioia 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 "somewhat impaired."

         At 6:49 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 called in."

         At some 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.

         At 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.

         In 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.)

         The 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 ...

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