THE STATE OF NEW HAMPSHIRE

SUPREME COURT

Docket No. 2015-0335

William Weaver, Individually and Administrator of

Estate of Marceline Weaver

vs.

Town of Pelham, Officer Derek Gioia, Chief Joseph Roark,

Pelham Police Department and Woody’s Auto Repair & Towing, Inc.

and

James Sousa

vs.

Town of Pelham, Officer Derek Gioia, Chief Joseph Roark,

Pelham Police Department and Woody’s Auto Repair & Towing, Inc.

________________________________________________________________________________

APPEAL FROM FINAL ORDERS ON MOTIONS FOR SUMMARYJUDGMENT

ROCKINGHAM COUNTY SUPERIOR COURT ________________________________________________________________________________

PLAINTIFFS’ ANSWERING BRIEF

________________________________________________________________________________

Joseph F. McDowell, III, Esq. (#1675) Mark Morrissette, Esq. (#10033) Heather V. Menezes, Esq. (#17136) 282 River Road PO Box 3360 Manchester, NH 03105-3360 (603) 623-9300

Mark Morrissette, Esq. will represent the Plaintiffs at oral argument

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................................................ iv

TIMELINE OF EVENTS........................................................................................................... vii

PLAINTIFFS’ OPPOSING BRIEF TO THE PELHAM DEFENDANTS' CROSS-APPEAL

......................................................................................................................................................... 1 STATEMENT OF THE CASE ........................................................................................ 1 SUMMARY OF ARGUMENT ........................................................................................ 3

ARGUMENT ..................................................................................................................... 4

I. THE PELHAM DEFENDANTS WAIVED THE ARGUMENT THAT THEY ARE OFFICIALLY IMMUNE AND WAIVED THE ARGUMENT THAT THE TRIAL COURT ERRED IN FINDING THAT THE PLT PROVIDED INSURANCE UNDER RSA 507-B:7-A .................................. 4

II. THE TRIAL COURT PROPERLY FOUND THAT THE COVERAGE

THROUGH PLT WAIVED IMMUNITY .................................................... 5 III. THE TRIAL COURT PROPERLY FOUND THAT THE PELHAM

DEFENDANTS WERE NOT IMMUNE BECAUSE THE PLAINTIFFS' CLAIMS FIT WITHIN THE EXCEPTION TO IMMUNITY IN

RSA 507-B:2 .................................................................................................... 9

A. The Pelham defendants waived any argument that the plaintiffs do not satisfy the elements of negligent entrustment because they failed to make this argument to the trial court .............................................................. 10

B. The plaintiffs’ claims fit within RSA 507-B:2 ...................................... 11

CONCLUSION .............................................................................................................. 18 REQUEST FOR ORAL ARGUMENT ....................................................................... 18

PLAINTIFFS' REPLY BRIEF TO THE BRIEF OF THE PELHAM DEFENDANTS ...... 18 ARGUMENT ................................................................................................................... 18

I. THE PELHAM DEFENDANTS' ASSERTION THAT THE PLAINTIFFS WAIVED ARGUMENTS ARE UNSUPPORTED BY THE

i

RECORD ....................................................................................................... 18

A. The plaintiffs properly objected to the Pelham defendants' argument on proximate cause ..................................................................................... 19

B. The plaintiffs properly raised the failure to detain claim before the trial court ................................................................................................ 20 C. The plaintifffs did not waive all claims except for negligent entrustment

................................................................................................................. 20

II. THE CASES CITED BY THE PELHAM DEFENDANTS ON CAUSATION ARE DISTINGUISHABLE.......................................................................... 21

III. THE PELHAM DEFENDANTS CANNOT ARGUE THEY HAD NO DUTY

BECAUSE THEY FAILED TO MAKE THIS ARGUMENT TO THE TRIAL COURT ............................................................................................ 22

IV. THE TRIAL COURT FAILED TO ADDRESS EVIDENCE THAT WHEN

VIEWED IN THE LIGHT MOST FAVORABLE TO THE PLAINTIFF REVEALS GENUINE ISSUES OF MATERIAL FACT IN DISPUTE ON PROXIMATE CAUSATION ....................................................................... 23

PLAINTIFFS' REPLY BRIEF TO THE BRIEF OF WOODY'S AUTO REPAIR AND TOWING, INC. ........................................................................................................................... 26

ARGUMENT ................................................................................................................... 26

I. THE TRIAL COURT ERRED BY FINDING THAT WOODY'S COULD NOT BE LIABLE FOR NEGLIGENT ENTRUSTMENT AS A MATTER OF LAW BECAUSE WOODY'S HAD A DUTY NOT TO RELEASE MR. STEWART'S SUV IF HE WAS VISIBLY IMPAIRED ........................... 26

II. THE TRIAL COURT'S RULING THAT RSA 262:40 DID NOT APPLY

MISCONSTRUED THE PLAIN LANGUAGE OF THE STATUTE AND IMPERMISSIBLY DISCOUNTED EXPERT WITNESS

TESTIMONY ................................................................................................ 28 III. WOODY'S ARGUMENT THAT RSA 263:1-A DOES NOT APPLY IS

INCORRECT BECAUSE IT RENDERS STATUTORY LANGAUGE SUPERFLUOUS ........................................................................................... 30

IV. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT

TO WOODY'S BECAUSE A JURY COULD FIND THAT WOODY'S SHOULD HAVE KNOWN THAT MR. STEWART WAS VISIBLY IMPAIRED WHEN IT RETURNED HIS SUV TO HIM ........................ 31

ii

CONCLUSION ........................................................................................................................... 34 REQUEST FOR ORAL ARGUMENT ..................................................................................... 34 CERTIFICATE OF SERVICE ................................................................................................. 35

iii

TABLE OF AUTHORITIES

New Hampshire Cases Appeal of Local Government Center, 165 N.H.790 (2014) ............................................. 3, 5, 6, 7, 8, 9 Baker Valley Lumber, Inc. v. Ingersoll-Rand Co., 148 N.H. 609 (2002) ............................................... 33 Bowser v. Town of Epping, 2010-0868 (Sept. 16, 2011) ................................................................. 7, 8 Chalmers v. Harris Motors, Inc., 104 N.H. 111 (1962) .............................................................. 11, 12 Chapman v. Strafford County, 163 N.H. 320 (2012) ................................................................... 11, 13 DiChiara v. Sanborn School District, 165 N.H. 694 (2013) ............................................................. 17 Everitt v. General Electric Co., 156 N.H. 202 (2007) ..................................................................... 1, 2 Farm Family Casualty Insurance Co. v. Town of Rollinsford, 155 N.H. 669 (2007) ................. 17, 18 Fenlon v. Thayer, 127 N.H. 702 (1986) ............................................................................................. 30 Goss v. State, 142 N.H. 915 (1998) ................................................................................................... 21 Hacking v. Town of Belmont, 143 N.H. 546 (1999) ................................................................... 13, 14 Hanover Ins. Co. v. Grondin, 119 N.H. 394 (1979) ............................................................................. 34 Iannelli v. Burger King, Inc., 145 N.H. 190 (2000) .................................................................... 23, 24 Maloney v. Badman, 156 N.H. 599 (2007) .................................................................................. 19, 21 Pennelli v. Town of Pelham, 148 N.H. 365 (2002) ...................................................................... 30, 31 State v. Blackmer, 149 N.H. 47 (2003) .................................................................................... 4, 10, 22

State v. Whittaker, 158 N.H. 762 (2009)................................................................................ 10, 18, 19

Weldy v. Town of Kingston, 128 N.H. 325 (1986) ...................................................................... 22, 28 United States Supreme Court Case Tolan v. Cotton, 134 S.Ct. 1861 (2014) ....................................................................................... 24, 30 Other Cases Adriance v. Town of Standish, 687 A.2d 238 (Me. 1996) ................................................................ 14

iv

Blocker v. WJA Realty, Ltd., 559 So.2d 291 (Fla. Dist. Ct. App. 1990) ...................................... 26, 27 Graves v. City of Circleville, 922 N.E.2d 201 (2010) ........................................................................ 16 Irwin v. Town of Ware, 467 N.E. 2d 1292 (Mass. 1984) ............................................................. 16, 22 Knighten v. Sam’s Parking Valet, 206 Cal. App. 3d 69 (1988) ................................................... 26, 27 Loom Craft Carpet Mills, Inc. v. Gorrell, 823 S.W.2d 431 (App. Ct. Tx. 1992) .............................. 12 Mills v. Continental Parking Corp., 475 P.2d 673 (Nev. 1970) .................................................. 26, 27 Morenko v. Downs Racing LP, 2014 PA Super. 128 (2013) ....................................................... 26, 27 Ransom v. City of Garden City, 743 P.2d 70 (Idaho 1987) ................................................... 13, 14, 27 Umble v. Sandy McKie and Sons, Inc., 690 N.E.2d 157 (Ill. App. Ct. 1998) .............................. 26, 27 West v. Granny’s Rocker Niteclub, Inc., 643 N.E.2d 850 (Ill. App. Ct. 1994) ............................ 12, 27 Statutes RSA 5-B ....................................................................................................................................... 6, 7, 9 RSA 5-B:1 ............................................................................................................................................ 6 RSA 5-B:2 ........................................................................................................................................ 6, 7 RSA 5-B:3 ............................................................................................................................................ 8 RSA 5-B:5 ............................................................................................................................................ 8 RSA 212:34 ........................................................................................................................................ 27 RSA 225-A......................................................................................................................................... 27 RSA 262:32 ............................................................................................................................ 26, 27, 29 RSA 262:33 ............................................................................................................................ 26, 27, 28 RSA 262:40 ............................................................................................................................ 28, 29, 30 RSA 263:1-a................................................................................................................................. 30, 31 RSA 412 ........................................................................................................................................... 6, 7 RSA 507-B:2 ............................................................................................................................... passim

v

RSA 507-B:4, IV ............................................................................................................................... 10 RSA 507-B:5 ............................................................................................................................... passim RSA 507-B:7-a............................................................................................................................ passim RSA 594:20-a..................................................................................................................................... 26

Other Authorities Black’s Law Dictionary (7th Ed. 1999) .......................................................................................... 6, 9 Restatement (Second) of Torts §390 (1965) .................................................................... 12, 14, 27, 34

Rules Supreme Court Rule 16 ........................................................................................................................ 4 Supreme Court Rule 20(2) ................................................................................................................... 7 Superior Court Rule 12 ...................................................................................................................... 19

vi

TIMELINE OF EVENTS

Event Date Time Record Reference Stewart’s arrest for DWI June 25, 2010 11:59 p.m. App. I at 46 Stewart’s release from Pelham Police Dept. June 26, 2010 1:13 a.m. App. I at 46 Stewart arrives at residence June 26, 2010 1:17 a.m. App. I at 127 Stewart’s first call to Pelham Police Dept. June 26, 2010 6:49 a.m. App. I at 30 Stewart’s second call to Pelham Police Dept. June 26, 2010 7:08 a.m. App. I at 36 Gioia’s return call to Stewart June 26, 2010 7:23 a.m. App. I at 37 Stewart’s voicemail message - time called in June 26, 2010 11:19 a.m. App. I at 39 Stewart’s voicemail message - time on message envelope (on disk)

June 26, 2010 11:21 a.m. App. II at 1180

Time of accident with Plaintiffs June 26, 2010 12:03 p.m. App. I at 95

vii

PLAINTIFFS’ OPPOSING BRIEF TO THE PELHAM DEFENDANTS’ CROSS-APPEAL

STATEMENT OF THE CASE1

The Pelham defendants argued immunity both in a motion to dismiss and in a motion for

summary judgment. In the motion to dismiss, the Pelham defendants asserted immunity under RSA

507-B:5 and argued that the conduct alleged by the plaintiffs did not fit within the waiver of

immunity set forth in RSA 507-B:2. The plaintiffs objected, asserting: (1) The plaintiffs’ actions

support claims for harm arising out of a motor vehicle and Mr. Stewart’s fault is attributable to the

Pelham defendants; and (2) The Pelham defendants waived its ability to assert immunity to the

extent it insured against the risk pursuant to RSA 507-B:7-a. See Supp. App. at 7. The trial court

denied the Pelham defendants’ motion to dismiss.

The Pelham defendants again raised immunity in a motion for summary judgment. Therein,

the Pelham defendants made the same arguments they had made in their motion to dismiss and

additionally argued official immunity under Everitt v. General Electric Co., 156 N.H. 202 (2007).

App. I at 49. The plaintiffs objected, countered those arguments and raised the issue that the

Pelham defendants waived the ability to assert immunity because they obtained insurance through

the Local Government Center Property Liability Trust (PLT). App. I at 98-99. Thus, there were

three immunity issues before the trial court on summary judgment: (1) Whether the plaintiffs’

allegations met the conduct under the motor vehicle exception of RSA 507-B:2; (2) Whether the

policy through PLT was insurance that waived the Pelham defendants’ ability to claim immunity;

and (3) Whether the Pelham defendants were officially immune under the common law doctrine set

forth in Everitt. The trial court ruled against the Pelham defendants on all three immunity issues.

Supp. at 8-11. However, the trial court ruled against the plaintiffs on proximate causation. Supp. at

11-12.

1 The relevant facts are set forth in the plaintiffs’ brief. Plaintiffs’ Brief at 2-10.

1

The plaintiffs filed a motion for interlocutory appeal from the trial court’s grant of summary

judgment to the Pelham defendants. The Pelham defendants objected and filed a cross-motion for

interlocutory appeal. See App. I at 704. In their interlocutory cross-appeal, the Pelham defendants

identified three questions of law:

1. Whether the Pelham Defendants are immune from liability under Everitt v. General Electric Company (official immunity). (Pelham Order, p 7-8, Pltf. App. at 142-43)

2. Whether RSA 507-B:2 bars the Plaintiff’s claims against the Pelham Defendants. (Order on Pelham Motion to Dismiss, Pelham App. at 36)

3. Whether the Pelham Defendants are insured for the purposes of RSA 507-B:7-a. (Pelham Order, p. 8-10, Pltf. App.at 143-44)

App. I at 728.

In its order on the parties’ request for interlocutory appeal, the trial court observed,

The Court has signed the two Interlocutory Appeal Statements filed by the parties that are attached to the within Order. While this Court recognizes that the recitation of the facts in each of the Interlocutory Appeal Statements is somewhat different, neither Statements contains errors; rather, they reflect a view of the facts in light most favorable to the party requesting the Interlocutory Appeal.

Supp. at 21. This Court declined interlocutory review.

After the trial court granted summary judgment to Woody’s, the plaintiffs appealed the grant

of summary judgment as to both the Pelham defendants and Woody’s. The Pelham defendants

cross-appealed. The Pelham defendants raised one issue in their notice of appeal: “Did the trial

court err in denying the Pelham defendants immunity under RSA 507-B:5?” The Pelham

defendants have not moved to add a question to their cross-appeal.

2

SUMMARY OF ARGUMENT

The trial court properly found the Pelham defendants are not immune from liability.

Although the trial court found in favor of the plaintiffs on three immunity issues, the Pelham

defendants preserved one immunity issue in their notice of cross-appeal. The trial court properly

found that the Pelham defendants were not immune from liability under RSA 507-B:5 and RSA

507-B:2. The plaintiffs’ claims are permitted by RSA 507-B:2 because the Pelham defendants are

liable for Mr. Stewart’s fault in operating his SUV while impaired. Thus, the conduct alleged by

the plaintiffs is fault attributable to the Pelham defendants arising out of the operation of a motor

vehicle. The trial court properly found that the motor vehicle at issue did not need to be owned by

the municipality for the municipality to be subject to liability under RSA 507-B:2. This immunity

argument was properly preserved by the Pelham defendants.

The Pelham defendants waived the argument that it is officially immune because it failed to

raise this argument in its notice of appeal. The Pelham defendants also waived the argument that its

policy through the PLT was not insurance for purposes of RSA 507:7-a because it was issued by a

pooled risk management program (“PRMP”). Even if the Pelham defendants had properly

preserved this issue on appeal, the Pelham defendants’ argument fails because the plain language of

the statute includes the PLT policy, which effectively operates as insurance, as the trial court so

found. This Court’s decision in Appeal of Local Government Center further supports the trial

court’s finding that the PLT policy provides insurance and, in any event, based on the events

described therein, the Pelham defendants cannot support that the PLT was a properly organized

PRMP at the time of this action.

3

ARGUMENT

I. THE PELHAM DEFENDANTS WAIVED THE ARGUMENT THAT THEY ARE OFFICIALLY IMMUNE AND WAIVED THE ARGUMENT THAT THE TRIAL COURT ERRED IN FINDING THAT THE PLT PROVIDED INSURANCE UNDER RSA 507-B:7-A.

In their cross-appeal brief and opposing brief, the Pelham defendants raised three immunity

issues: (1) Immunity under RSA 507-B:2 and RSA 507-B:5; (2) Official immunity; and (3) They

are not insured for purposed of RSA 507-B:7-a because the PLT is a PRMP. However, the Pelham

defendants waived the official immunity argument and the argument that the PRMP does not

provide insurance by failing to include those issues in their notice of appeal. The only proper

immunity argument before this Court is whether the plaintiffs’ claims fit within RSA 507-B:2 and

RSA 507-B:5.

“An argument that is not raised in a party’s notice of appeal is not preserved for appellate

review.” State v. Blackmer, 149 N.H. 47, 49 (2003). Although the statement of a question

presented is deemed to include every subsidiary question fairly comprised therein, in this case, the

two immunity arguments not raised by the Pelham defendants in their notice of appeal are not

subsidiary issues but, rather, are completely separate arguments. See Supreme Court Rule 16(3)(b).

Official immunity is a common law immunity. In its notice of appeal, the Pelham

defendants solely raise statutory immunity. Therefore, the Court should decline to address the

Pelham defendants’ official immunity argument.2

In addition, the question of whether the PLT policy is insurance for purposes of waiving

immunity is a completely separate issue from whether the conduct claimed in the plaintiffs’ lawsuit

meets the standard for municipal liability under RSA 507-B:2. The core question raised in the

notice of appeal is whether the plaintiffs’ claim fits the conduct giving rise to liability for a

2 If the Court decides to address official immunity notwithstanding the Pelham defendants’ waiver of this argument by failing to include it in their notice of appeal, the plaintiffs respectfully request an opportunity to brief that issue.

4

municipality set forth in RSA 507-B:2. The Pelham defendants’ notice of appeal’s reference to

RSA 507-B:5 does not encompass the insurance issue of RSA 507-B:7-a.

RSA 507-B:5 states, “No governmental unit shall be held liable in any action to recover for

bodily injury, personal injury, or property damage except as provided by this chapter or as is

provided or may be provided by other statute.” This provision invokes the liability of a

municipality as set forth in RSA 507-B:2. This statutory section does not invoke the separate issue

of whether insurance coverage waives a municipality’s ability to claim immunity from liability.

Moreover, the parties and the trial court treated the insurance issue as a separate matter throughout

these proceedings. Indeed, in its interlocutory cross-appeal statement the Pelham defendants

presented the insurance issue as separate from its other immunity arguments. Accordingly, by

failing to raise the insurance issue in its notice of appeal, the Pelham defendants have waived this

argument.

II. THE TRIAL COURT PROPERLY FOUND THAT THE COVERAGE THROUGH PLT WAIVED IMMUNITY.

The Pelham defendants argue that the trial court erred by finding the PLT provided

insurance that waived immunity. The Pelham defendants assert that the PLT policy did not provide

insurance because the PLT is a PRMP. However, even if this argument is properly preserved, the

Pelham defendants do not cite any binding authority in support of their argument and fail to show

that the PLT even meets the statutory requirements of PRMP. Accordingly, this Court should

affirm the trial court’s order finding the PLT provides insurance that waives the Pelham defendants’

ability to claim immunity.

“Statutory interpretation is a question of law, which [this Court] review[s] de novo.” Appeal

of Local Government Center, 165 N.H.790, 804 (2014). When interpreting a statute, the Court “first

looks to the language of the statute itself, and, if possible, construe[s] that language according to its

5

plain and ordinary meaning.” Id. This Court interprets “legislative intent from the statute as written

and will not consider what the legislature might have said or add language that the legislature did

not see fit to include. Moreover, [this Court] do[es] not consider words and phrases in isolation, but

rather within the context of the statute as a whole.” Id. (internal citations omitted).

RSA 507-B:7-a provides:

It shall be lawful for the state or any municipal subdivision thereof, including any county, city, town, school district, school administrative unit or other district, to procure the policies of insurance described in RSA 412. In any action against the state or any municipal subdivision thereof to enforce liability on account of a risk so insured against, the insuring company or state or municipal subdivision thereof shall not be allowed to plead as a defense immunity from liability for damages resulting from the performance of governmental functions, and its liability shall be determined as in the case of a private corporation except when a standard of care differing from that of a private corporation is set forth by statute.

The statute does not define the term insurance. Black’s Law Dictionary defines “insurance,”

as, “An agreement by which one party (the insurer) commits to do something of value for another

party (the insured) upon the occurrence of some specified contingency; esp., an agreement by which

one party assumes a risk faced by another party in return for premium payment.” Black’s Law

Dictionary, 802 (7th Ed. 1999). Further, Black’s Law Dictionary defines “insure,” as “To secure,

by payment of a premium, the payment of a sum of money in the event of a loss.” Id. at 811. The

PLT policy is an agreement by which the PLT agrees to pay for a loss in return for a payment of a

premium. App. I at 436, 452. The Pelham defendants have never contested this.

The PRMP statute, RSA 5-B, also supports that the essential activities of a PRMP is to

provide insurance, as that term is commonly used. The purpose of the PRMP statute is to allow for

pooled risk management programs. RSA 5-B:1. “Risk management” is defined as “the defense of

claims and indemnification for losses arising out of the ownership, maintenance and operation of

6

real or personal property and the acts or omissions of officials.” RSA 5-B:2, IV. This definition is

consistent with the definition of insurance.

Thus, the Pelham defendants have a contract for insurance through the PLT. This contract

provides coverage for injuries and accidents such as those included in plaintiffs’ claim in this

lawsuit. App. I at 408. Accordingly, pursuant to RSA 507-B:7-a, the Pelham defendants “shall not

be allowed to plead as a defense immunity from liability for damages resulting from the

performance of governmental functions.”

RSA 507-B:7-a states that a municipality may procure policies of insurance described in

RSA 412; the plain language of RSA 507-B:7-a does not mean that to waive immunity, the policy

must be issued by an insurance company regulated under that chapter. To do so would be to add

language to the statute that the legislature did not see fit to include. Rather, the waiver of immunity

applies whenever the municipality has insured against a risk. Here, the Pelham defendants have

insured against a risk through the PLT and cannot claim immunity.

The Pelham defendants claim that the PLT does not provide insurance because it is a PRMP

pursuant to RSA 5-B such that RSA 507-B:7-a does not apply. The Pelham defendants cite Bowser

v. Town of Epping, 2010-0868 (Sept. 16, 2011) and trial court orders. Neither are binding on this

Court. Bowser is an unpublished decision. Supreme Court Rule 20(2) provides, in pertinent part,

Nonprecedential Status of Orders. An order disposing of any case that has been briefed but in which no opinion is issued, whether or not oral argument has been held, shall have no precedential value and shall not be cited in any pleadings or rulings in any court in this state.

(emphasis added). Thus, not only is Bowser not binding authority, it was improper for the Pelham

defendants to even cite it in their pleadings before the trial court and in thier brief.

Moreover, recent developments in the law with respect to the PLT indicate that the PLT

provides the functional equivalent of insurance. In the Appeal of the Local Government Center, this

7

Court several times remarked that the Local Government Center’s policies were essentially

insurance. For example, this Court found, “Generally, Health Trust, P-L Trust, and Workers’

Compensation Trust operate similarly to a mutual insurance company with the net assets of each

program considered the property of its respective members.” Id. at 795. Further, the Court

acknowledged, “RSA 5-B:3, III provides that pooled risk management programs established for the

benefit of political subdivisions may provide various kinds of insurance coverage, including

coverage for workers’ compensation claims.” Id. at 806 (brackets and quotations omitted).

In this case, the trial court acknowledged both the Supreme Court’s unpublished decision in

Bowser in addition to the published case in the Appeal of the Local Government Center. The trial

court found that the PLT policy was insurance for purposes of waiving immunity under RSA 507-

B:7-a. The trial court reasoned, “Based upon the depth of discussion as to what the LGC provides,

this Court is prepared to find and rule that LGC coverage provided to a municipality does constitute

a ‘policy of insurance’ for the purposes of the applicability of RSA 507-B:7-a.” Supp. at 10-11.

The trial court acknowledged that in Bowser, this Court noted that the plaintiffs had failed to meet

their burden that the LGC program was a policy of insurance in that case. The trial court aptly

observed that Bowser preceded this Court’s detailed discussion of what the PLT actually provides.

App. I at 10.

In addition, the trial court ruling was correct because the Pelham defendants failed to

provide sufficient evidence that the PLT even satisfied the requirements of the PRMP statute at the

time of these events. Indeed, in the Appeal of the Local Government Center, this Court

acknowledged the Local Government Center’s failure to satisfy the criteria for PMRP status. 165

N.H. at 809.3 The plaintiffs, in their objection to the Pelham defendants’ motion for summary

3 This Court observed that the presiding officer found three violations of RSA 5-B:5, I, but the Local Government Center only appealed one of these findings. See Appeal of Local Government Center, 165 N.H. at 798.

8

judgment, set forth specific arguments that the PLT did not meet the criteria to be a PRMP at times

pertinent to this action. See App. I at 112-17. In doing so, the plaintiffs cited Appeal of Local

Government Center and included the Final Order of Donald Mitchell, the presiding officer of the

New Hampshire Bureau of Securities Regulation, which details the findings and rulings of that

agency that underlie this Court’s decision in Appeal of Local Government Center. The Pelham

defendants did not counter these allegations and instead made conclusory statements that the PLT

was a PRMP. Given the lack of support from the Pelham defendants and this Court’s

acknowledgement in the Appeal of Local Government Center that the PLT has not satisfied the

requirements of RSA 5-B to be a PRMP, this Court should reject the Pelham defendants’ argument

that the PLT does not provide insurance because it is a PRMP.

That the PLT has procured reinsurance is also support that the PLT provided insurance for

the purposes of RSA 507-B:7-a. App. I at 114. Black’s Law Dictionary defines “reinsurance,” as,

“Insurance of all or part of one insurer’s risk by a second insurer, who accepts the risk in exchange

for a percentage of the original premium.” Black’s Law Dictionary 1290 (7th Ed. 1999). If PLT

was not an insurer, then it could not obtain reinsurance. Since it did so, this too supports that PLT

provides insurance for the purposes of RSA 507-B:7-a.

III. THE TRIAL COURT PROPERLY FOUND THAT THE PELHAM DEFENDANTS WERE NOT IMMUNE BECAUSE THE PLAINTIFFS’ CLAIMS FIT WITHIN THE EXCEPTION TO IMMUNITY IN RSA 507-B:2.

The Pelham defendants argue they are entitled to immunity under RSA 507-B:2. It

apparently asserts that to fit within the motor vehicle exception of RSA 507-B:2, the municipality

must own the vehicle at issue. The Pelham defendants also argue, for the first time, that the

plaintiffs do not meet the elements of negligent entrustment because they did not have a superior

right of possession over Mr. Stewart’s car. The Pelham defendants’ argument with respect to RSA

9

507-B:2 is misplaced because this Court’s precedent and the plain language of the statute do not

require a municipality to own the vehicle at issue to be liable under the motor vehicle exception.

Further, the Pelham defendants waived any argument regarding whether the plaintiffs satisfy the

elements of negligent entrustment because this argument was not raised to the trial court. Even if

the Pelham defendants had previously raised this argument, the plaintiffs are entitled to a jury trial

because the acts in this case satisfy the elements of negligent entrustment. 4

A. The Pelham defendants waived any argument that the plaintiffs do not satisfy the elements of negligent entrustment because they failed to make this argument to the trial court. This Court does not review any issue that a defendant has not raised before the trial court.

See Blackmer, 149 N.H. at 48. “The general rule in this jurisdiction is that a contemporaneous and

specific objection is required to preserve an issue for appellate review. This rule, which is based on

common sense and judicial economy, recognizes that trial forums should have an opportunity to

rule on issues and to correct errors before they are presented to the appellate court.” Id. (quotations

and internal citations omitted). As the appealing party with regard to its cross-appeal, the Pelham

defendants have the burden of providing this Court with a record sufficient to demonstrate they

raised the issue of their appeal before the trial court. State v. Whittaker, 158 N.H. 762, 767 (2009).

In their motion to dismiss and their motion for summary judgment, the Pelham defendants

never raised any deficiency with respect to plaintiffs’ negligent entrustment claim. Accordingly,

this Court should decline to address that argument. For the purposes of the appeal regarding the

Pelham defendants, this Court must assume that the plaintiffs have properly stated a claim for

negligent entrustment against the Pelham defendants.

4 The plaintiffs do not claim that Officer Gioia acted in bad faith or was acting outside of the scope of his employment such that the analysis of the liability of Officer Gioia and the Pelham Police Department is the same. See RSA 507-B:4, IV.

10

B. The plaintiffs’ claims fit within RSA 507-B:2.

Assuming the Pelham defendants have not waived immunity by procuring insurance, the

Pelham defendants’ liability depends upon whether the plaintiffs’ claims fit within the scope of

RSA 507-B:2 and RSA 507-B:5. This Court “examine[s] the language of the statute and ascribe[s]

the plain and ordinary meanings to the words used.” Chapman v. Strafford County, 163 N.H. 320,

322 (2012). The Court “interprets legislative intent from the statute as written and will not consider

what the legislature might have said or add language the legislature did not see fit to include.” Id.

RSA 507-B:5 provides, “No governmental unit shall be held liable in any action to recover

for bodily injury, personal injury or property damage except as provided by this chapter or as is

provided or may be provided by other statute.” RSA 507-B:2 provides circumstances under which

a municipality may be held liable and states, in pertinent part, “A governmental unit may be held

liable for damages in an action to recover for bodily injury, personal injury or property damage

caused by its fault or by fault attributable to it, arising out of ownership, occupation, maintenance

or operation of all motor vehicles, and all premises.” (emphasis added).

In this case, the plaintiffs’ negligent entrustment theory fits the parameters of liability set

forth in RSA 507-B:2. It is uncontested that the Town of Pelham is a “governmental unit” and the

plaintiffs suffered “bodily injury.” Thus, the parties’ dispute centers on whether the plaintiffs’

damages were caused by fault attributable to the Pelham defendants arising out of operation of all

motor vehicles. The trial court properly found that plaintiffs’ claims satisfied this standard.

Negligent entrustment is “based on the principal that the owner of a motor vehicle may be

liable for an injury to a third person resulting from the operation of a vehicle which he has entrusted

to one whose incompetency to operate it, because of intoxication, addiction to liquor or otherwise,

11

is known or should have been known to him.” Chalmers v. Harris Motors, Inc., 104 N.H. 111, 114-

115 (1962). No New Hampshire case has limited negligent entrustment to the owner as the

entrustor. Courts in other jursidictions have found that a non-owner of a vehicle subject to liability

for negligent entrustment. See, e.g., West v. Granny’s Rocker Niteclub, Inc., 643 N.E.2d 850 (Ill.

App. Ct. 1994); see also Restatement (Second) of Torts §390, cmt. a (1965)(“The rule stated applies

to anyone who supplies a chattel for the use of another.”).

Negligent entrustment is a derivative theory of liability. See Loom Craft Carpet Mills, Inc.

v. Gorrell, 823 S.W.2d 431 (App. Ct. Tx. 1992). In Gorrell, the Texas Appellate Court observed,

“when the driver’s wrong is established, then by negligent entrustment, liability for such wrong is

passed on to the owner.” Id. In other words, the entrustor is liable for the fault of the entrustee

which caused damages to a third party. Given that negligent entrustment is a derivative theory of

liability, the Pelham defendants’ negligent entrustment of Mr. Stewart’s SUV satisfies the

requirement in RSA 507-B:2 that the bodily injury be caused by “fault attributable to it, arising out

of ownership, occupation, maintenance or operation of all motor vehicles.” In other words, Mr.

Stewart’s fault in operating the SUV is attributable to the Pelham defendants.

The Pelham defendants argue that the motor vehicle has to be the property of the

municipality to satisfy RSA 507-B:2. The trial court properly disagreed, finding, “The Court is not

prepared to rule herein that with respect to the immunity enjoyed by a municipality under RSA 507-

B:2 with respect to motor vehicles, the motor vehicles in question have to be owned by the

municipality.” Supp. at 8. The trial court’s ruling is consistent with the plain language of the

statute. RSA 507-B:2 provides that a governmental unit may be held liable for damages with

respect to the “operation of all motor vehicles.” (emphasis added). The use of the word all does not

limit the motor vehicles at issue to those owned by the municipality. If the legislature had intended

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to limit the motor vehicles to those owned by the municipality, it would have explicitly done so. In

fact, in the same statutory section the legislature limits the liability of a governmental unit “with

respect to publicly owned airport runways and taxi ways.” RSA 507-B:2.

Further, in Chapman, this Court permitted recovery against a municipality for negligently

supervising the loading of a trailer that was not owned by the municipality. 163 N.H. at 321. In

that case, the plaintiff was injured while loading tables and chairs onto a trailer owned by a third

party. Id. The Court found that the plaintiff’s claims arose out of the operation of a motor vehicle

and were permitted by RSA 507-B:2. Id. Chapman buttresses the argument that the plain language

of RSA 507-B:2 does not mean that the motor vehicle at issue must be owned by the municipality.

Given the plain language of the statute and this Court’s decision in Chapman, liability for

negligently entrusting an automobile under the control of a municipality is actionable under RSA

507-B:2. Thus, because the plaintiffs’ claims fit within the conduct specified in RSA 507-B:2, the

Pelham defendants are not immune.

Though municipal defendants try to avoid liability by asserting various forms of immunity,

courts in other jurisdictions have frequently declined to grant immunity in circumstances where a

police officer lets a drunk driver loose upon the innocent motoring public. Ransom v. City of

Garden City is one of the cases that best supports the plaintiffs’ case. 743 P.2d 70, 75 (Idaho 1987).

The Ransom case was cited with approval by this Court in Hacking v. Town of Belmont, 143 N.H.

546, 552 (1999). In Ransom, the Idaho Supreme Court found a municipality could be liable for

negligent entrustment where a police officer “seized control of the vehicle when he arrested its

driver and retained the keys. As discussed earlier, he possessed statutory authority to dispose of the

vehicle. If the driver or the passenger had requested the keys, the officer was not bound to comply.”

743 P.2d at 75. The Ransom Court further found, “The officer was the only person who had control

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over [the] vehicle. It is the legal right to ‘control’ the thing entrusted which gives rise to the duty in

negligent entrustment case, Restatement (Second) of Torts, § 308 (1965), and this right to ‘control’

is not limited to those who hold absolute title.” Id.

In Adriance v. Town of Standish, 687 A.2d 238, 241 (Me. 1996), which this Court also cited

with approval in Hacking, the Maine Supreme Court observed, “Nevertheless, discretionary

immunity…was not designed to cloak the ancient doctrine of sovereign immunity in modern garb.”

(quotations omitted). “In cases where the questioned conduct had little or no purely governmental

content but instead resembles decisions or activities carried on by people generally, there is an

objective standard for judgment by the Courts and the doctrine of discretionary immunity does not

bar the action.” Id. (quotations omitted). “A broader formulation of the doctrine threatens to render

any function involving a choice discretionary, thereby functionally eliminating the limited waiver of

sovereign immunity provided by the Act.” Id.

In this case, the reason the Pelham Police Department impounded Mr. Stewart’s vehicle at

midnight after his first arrest, towed the vehicle and turned it over to Woody’s was because the

Pelham Police recognized that Mr. Stewart was too intoxicated to drive, was a danger to the public

and should not have access to his vehicle or any vehicle until he was sober again. The Pelham

Police Department entrusted the vehicle to Woody’s pursuant to a contract that Woody’s had with

the Town of Pelham to provide towing and vehicle storage services. The Pelham Police Department

made the decision to take the vehicle and the keys to the vehicle away from Mr. Stewart and

entrusted the vehicle and the keys to Woody’s pursuant to a contract. The Pelham defendants and

Woody’s created this situation by taking the vehicle as well as the keys away from Mr. Stewart.

They had every right to do that. Once again, the Pelham defendants and Woody’s created the

situation and where they went wrong in this case was to let Mr. Stewart have access to his vehicle

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again before he was sober. These defendants had a duty to take possession of Mr. Stewart’s vehicle

away from him and they undertook that duty, and it is up to a jury to determine the extent of the

breach of the duty and the relationship of the breach of the duty to plaintiffs’ injuries and damages.

No witness in this case will say that Mr. Stewart was ever sober after his first arrest by the Pelham

Police Department at midnight on June 25, 2010.

The Town of Pelham and Woody’s had actual knowledge that the return of the vehicle

would create a risk of harm and they obviously let Mr. Stewart have the vehicle back too soon.

Genuine issues of material fact exist as to whether the towing service entrusted the motor vehicle to

Mr. Stewart and if so whether the towing service should have known Mr. Stewart was intoxicated.

Mr. Wood acknowledged during his deposition that he had an obligation not to give Mr. Stewart his

vehicle back if he was intoxicated. We know by looking at the facts of this case that Mr. Stewart

was intoxicated at midnight the night before the accident and at noontime at the time of the accident

that caused injury to Mrs. Weaver and Mr. Sousa. These facts are not disputed.

Together these defendants (Town of Pelham and Woody’s) gave the keys back to Mr.

Stewart at a time that he was not fit to drive a vehicle. Once again, no witness will say that Mr.

Stewart was not intoxicated from midnight on June 25, 2010 to noontime on June 26, 2010.

Mr. Stewart has admitted that he was not fit to drive a vehicle at any time between midnight

on June 25, 2010 and noontime on June 26, 2010, when the accident occurred. The occurrence of

the terrible accident proves that point. These defendants set the actions and course of conduct by

Mr. Stewart in motion and they may be held responsible for creating this situation. As stated

previously, the Pelham Police Department created this risk by seizing the vehicle from Mr. Stewart

and by placing him in custody, and then releasing him without supervision. It is the granting of

access to Mr. Stewart’s vehicle by the Pelham Police Department and by Woody’s and returning

15

control of the vehicle to Mr. Stewart when he was too intoxicated to drive that is the wrongdoing

here. There is no immunity under these facts.

Courts have held municipalities accountable when they endanger the motoring public by

permitting an intoxicated person to drive while impaired. Cases that support plaintiffs’ theory of

liability include Graves v. City of Circleville, 922 N.E.2d 201 (Ohio 2010), where the police of

Circleville, Ohio released an arrestee’s automobile from an impound lot after which the arrestee

drove while intoxicated and caused a fatal accident. The Supreme Court of Ohio found there was

no immunity. Id. at 203.

Also, in Irwin v. Town of Ware, 467 N.E.2d 1292 (Mass. 1984), police officers negligently

failed to take into protective custody a motor vehicle operator who was under the influence of

intoxicating liquor and who subsequently caused an accident resulting in harm to the plaintiff. In

denying a claim of immunity, the Supreme Judicial Court of Massachusetts held

we conclude that there is a special relationship between a police officer who negligently fails to remove an intoxicated motorist from the highway and a member of the public who suffers injury as a result of that failure. The statutes which establish police responsibilities in such circumstances evidence a legislative intent to protect both intoxicated persons and other users of the highway. As to the most crucial factor – foreseeability – the calamitous consequences to victims of accidents caused by drunken drivers are all too predictable.

Id. at 1303-04. The Court went on to say, “Similarly, the question of causation is generally one of

fact for the jury. A plaintiff need only show that there was greater likelihood or probability that the

harm complained of was due to causes for which the defendant was responsible than from any other

cause.” Id. at 1305 (brackets, quotations and internal citations omitted). “It is only necessary for

the plaintiff to prove that the defendant took a risk with respect to the plaintiff’s safety that a person

of ordinary prudence would not have taken, and that the plaintiff suffered a resulting injury that was

within the foreseeable risk.” Id. (quotations omitted).

16

The Pelham defendants cite DiChiara v. Sanborn School District, 165 N.H. 694 (2013) and

Farm Family Casualty Insurance Co. v. Town of Rollinsford, 155 N.H. 669 (2007) in their brief.

Both cases are distinguishable. In DiChiara, the plaintiff attempted to separate the requirement in

RSA 507-B:2 that the fault is connected the operation of a motor vehicle or premises. 165 N.H. at

695-96. The plaintiff did not challenge “the trial court’s ruling that his injuries do not arise out of

the defendants’ ownership, occupation, maintenance or operation of the premises.” Id. at 695. The

Court rejected the plaintiffs’ interpretation of the statute and found “RSA 507-B:2 provides an

exception for fault-based claims only when there is a nexus between the claim and the governmental

unit’s ownership, occupation, maintenance, or operation of a motor vehicle or premises.” Id. at

696-97.

Here, the plaintiff does not seek to separate the nexus between fault and operation of a motor

vehicle. Rather, the plaintiffs argue that the fault of Mr. Stewart in operating the SUV is

attributable to the Pelham defendants by operation of negligent entrustment law. There is no

question that Mr. Stewart operated his SUV when he drove it into the line of motorcycles

participating in the charity motorcycle ride. There is also no dispute that this act caused plaintiffs’

damages. Thus, the plaintiffs’ arguments are significantly different than those made by the plaintiff

in DiChiara. The statutory language, “fault attributable to it” includes claims based on derivative

liability, such as negligent entrustment. The Pelham defendants seek to limit the phrase “fault

attributable to it” to vicarious liability. Vicarious liability certainly is one means by which fault

may be attributed to a municipality. However, theories of derivative liability, such as negligent

entrustment, is another means by which fault may be attributed to a municipality.

Farm Family Casualty Insurance Company is also distinguishable. In that case, Farm

Family as subrogee to its insured homeowners argued that in restoring electricity to a home after a

17

fire the firefighters were operating or occupying the premises. 155 N.H. at 672. The Court found

that under the circumstances, the firefighters were neither occupying nor operating the premises and

the plaintiffs’ claims were not included in the scope of liability permitted by RSA 507-B:2. Id. at

672-73. The Court did not address the provision of RSA 507-B:2 relating to fault attributable to a

municipality. Moreover, the issue in Farm Family dealt with premises and the Court found that it

was logically difficult to have a transitory occupation regarding land. Id. This is different in the

context of a motor vehicle.

CONCLUSION

Accordingly, for the foregoing reasons, the plaintiffs respectfully request this Court deny the

Pelham defendants’ cross-appeal and uphold the trial court’s finding that the Pelham defendants are

not immune from liability in this case.

REQUEST FOR ORAL ARGUMENT

The plaintiffs respectfully request oral argument not to exceed fifteen minutes. Mark

Morrissette will represent the plaintiffs.

PLAINTIFFS’ REPLY BRIEF TO THE BRIEF OF THE PELHAM DEFENDANTS

The plaintiffs submit the following brief in reply to the opposition brief filed by the Pelham

defendants.

ARGUMENT

I. THE PELHAM DEFENDANTS’ ASSERTION THAT THE PLAINTIFFS WAIVED ARGUMENTS ARE UNSUPPORTED BY THE RECORD

The Pelham defendants make bold allegations that the plaintiffs failed to raise certain

arguments. Review of the record reveals that the Pelham defendants’ claims are baseless.

To preserve issues on appeal, arguments must be raised before the trial court to give the trial

court an opportunity to address those arguments. Whittaker, 158 N.H at 767. An appealing party

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must demonstrate that it has preserved issues for appeal. Id.; Superior Court Rule 12. A plaintiff

preserves arguments for appellate review when he includes those arguments in his objection to a

defendant’s motion for summary judgment. Maloney v. Badman, 156 N.H. 599, 605 (2007).

A. The plaintiffs properly objected to the Pelham defendants’ argument on proximate cause. The Pelham defendants argued, and the trial court found, the plaintiffs did not discuss

causation in their objection to the Pelham defendants’ motion for summary judgment. Supp. 11.

This assertion is wrong. The plaintiffs addressed causation in multiple pleadings, including their

objection to the Pelham defendants’ motion for summary judgment. For example, in their objection

to the Pelham defendants’ motion for summary judgment, the plaintiffs incorporated by reference

their objection to Woody’s motion for summary judgment, which includes causation arguments that

are applicable to both defendants. See App. I at 103; App II at 890. In the plaintiffs’ objection to

Woody’s motion for summary judgment, the plaintiffs explained the theories of why Mr. Stewart

should not have gotten his SUV back and then argued, “Without his vehicle, Mr. Stewart would not

have caused the June 26, 2010 motor vehicle accident that injured and killed the plaintiffs.” App. II

at 890.

The plaintiffs again challenged the Pelham defendants’ causation arguments in a motion to

reconsider and pointed out to the trial court where they had challenged causation. App. I at 506-

510. Therein, the plaintiffs set forth how both cause in fact and legal causation existed in this case.

The plaintiffs also addressed causation in subsequent motions to reconsider including one

motion filed after Mr. Stewart was deposed titled, “Plaintiffs’ Motion to Reconsider the Superior

Court’s Orders of April 9, 2014 and May 14, 2014 with Respect to Proximate Cause.” App. I at 555

(emphasis added). Therein, the plaintiffs again challenged the Pelham defendants’ argument on the

lack of proximate causation. Accordingly, because the plaintiffs challenged causation multiple

19

times before the trial court, the trial court erred in finding otherwise and this issue has been properly

preserved for appellate review.

B. The plaintiffs properly raised the failure to detain claim before the trial court.

The Pelham defendants also claim the plaintiffs waived the claim based upon Officer

Gioia’s negligence in failing to detain Mr. Stewart after his arrest. The Pelham defendants’

allegation is unfounded. The plaintiffs explicitly discussed Dr. Lyman’s opinion regarding the

Pelham defendants’ failure to detain Mr. Stewart in their objection to the Pelham defendants’

motion for summary judgment. App. I at 109. Therein the plaintiffs stated:

Dr. Lyman is also of the opinion that Officer Gioia facilitated Stewart to get back on the road and that Mr. Stewart should not have been released on his own while still impaired, and that such a release was reckless and unreasonable. Dr. Lyman also offered that it was foreseeable that Mr. Stewart would resume driving while impaired stating in his report “a reasonable officer would know that a citizen who was just arrested only hours earlier would attempt to retrieve his vehicle while likely still impaired.”

App. I at 109-110 (some quotations and internal references omitted). Dr. Lyman’s entire report was

included as an exhibit to the plaintiffs’ objection to the Pelham defendants’ motion for summary

judgment. App. I at 240–266. Thus, the plaintiffs properly preserved this claim.

C. The plaintiffs did not waive all claims except for negligent entrustment.

The Pelham defendants argue, and the trial court found, that the plaintiffs waived all claims

except for negligent entrustment. This too is incorrect. In so finding, the trial court misconstrued

the plaintiffs’ argument in their motion for summary judgment. In the first page of the plaintiffs’

objection to the Pelham defendants’ motion for summary judgment, the plaintiffs state,

Pelham miss-casts the plaintiffs’ claims of negligence as solely a failure to hold Mr. Stewart in custody after his late-night June 25, 2010 arrest in effort to create immunity where none exists. This case is about the negligent entrustment of a motor vehicle seized and controlled by the Pelham PD to an intoxicated Mr. Stewart on the morning of June 26, 2010.

20

App. I at 98 (emphasis added). In finding that the plaintiffs waived all claims with the exception of

negligent entrustment, the trial court ignored the first sentence quoted above. The plaintiffs were

responding to the defendants’ claim that the case did not involve negligent entrustment and the

plaintiffs claimed their allegations were not solely from the failure to hold Mr. Stewart in custody

after his arrest. While the second sentence quoted above may have been made more clear by the

addition of the word “also” after “is” (i.e., This case is also about the negligent entrustment of a

motor vehicle…), the clear import of the plaintiffs’ objection, which included a detailed analysis of

Dr. Lyman’s expert law enforcement opinions on the failure to detain case, was not to waive all

claims except for negligent entrustment. Accordingly, the plaintiffs did not waive the failure to

detain claim and the trial court erred in finding otherwise.

II. THE CASES CITED BY THE PELHAM DEFENDANTS ON CAUSATION ARE DISTINGUISHABLE. In support of their argument on causation, the Pelham defendants cite two cases: Maloney

Badman, 156 N.H. 599 (2007) and Goss v. State, 142 N.H. 915 (1998). Maloney is distinguishable

because that case involved the circumstances of a suicide and the Court found it was not foreseeable

to the doctor that his patient would use the drugs prescribed to commit suicide. 156 N.H. at 606.

Here, however, Mr. Stewart’s two driving while intoxicated offenses, Officer Gioia’s release of Mr.

Stewart while still impaired and an expert opinion that a reasonable officer would foresee that an

impaired driver would again drive while impaired, makes this case factually distinguishable.

Goss is also distinguishable. There, the Court found it was not foreseeable that an officer

who arrested a parolee for simple assault and criminal threatening would, over two months later,

brutally rape and kill someone. Goss, 142 N.H. at 917. The act of negligence alleged was the

officer failed to inform the parole board about the parolee’s prior sexual assault convictions. Id. at

916. These facts are remarkably different from the facts in this case where Officer Gioia knew Mr.

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Stewart had driven while intoxicated, he had a prior driving while intoxicated conviction, he was

intoxicated when he dropped Mr. Stewart off and knew or should have known he was intoxicated on

the morning of June 26, 2010 just prior to this accident. Officer Gioia had control over Mr.

Stewart’s SUV and could have prevented the release of Mr. Stewart’s vehicle and have prevented

this accident. Had Officer Gioia detained Mr. Stewart instead of releasing him on the early morning

hours of June 26, 2010, this accident would not have happened. Had Officer Gioia told Woody’s

not to release the SUV to Mr. Stewart, this accident would not have happened. There is no

allegation that Mr. Stewart had access to any other vehicle. In fact, the only evidence on this fact is

to the contrary, as Mr. Stewart testified he did not have access to another vehicle. App. I at 64.

Rather, this case is more like Weldy v. Town of Kingston where this Court found that it was

foreseeable to a police officer that intoxicated teenagers who were stopped would likely continue to

obtain alcohol and drive while intoxicated. 128 N.H. 325, 331 (1986) (“Teenagers who are released

after illegally drinking and driving foreseeably present a danger to the public and to themselves, and

due care mandates that they be detained and their parents notified.”); see also Irwin, 467 N.E.2d at

1305 (evidence necessary to prove proximate causation is “that the defendant took a risk with

respect to the plaintiff’s safety that a person of ordinary prudence would not have taken, and the

plaintiff a resulting injury that was within the foreseeable risk”). The Pelham defendants’ claim that

Weldy solely involved a statutory claim is misplaced. There the Court specifically found a common

law claim and found proximate cause existed in that case. See Weldy, 128 N.H. at 331.

III. THE PELHAM DEFENDANTS CANNOT ARGUE THEY HAD NO DUTY BECAUSE THEY FAILED TO MAKE THIS ARGUMENT TO THE TRIAL COURT.

The Pelham defendants assert they did not owe a duty to the plaintiffs. Because the Pelham

defendants never raised duty before the trial court, they have waived this argument. See Blackmer,

149 N.H. at 48 (the Court will not address arguments that were not raised before the trial court). In

22

their motion for summary judgment and in all subsequent pleadings, the Pelham defendants raised

three issues. Those issues were: (1) lack of proximate causation; (2) official immunity; and (3)

immunity under RSA 507-B:5. The trial court noted in its order, “The Pelham defendants argue

that for three separate independent reasons they must be dismissed from this litigation.” Supp. at 5.

Because the Pelham defendants never raised any argument to the trial court that they did not owe a

duty to the plaintiffs, the Pelham defendants did not preserve this issue.

IV. THE TRIAL COURT FAILED TO ADDRESS EVIDENCE THAT WHEN VIEWED IN THE LIGHT MOST FAVORABLE TO THE PLAINTIFF, REVEALS GENUINE ISSUES OF MATERIAL FACT IN DISPUTE ON PROXIMATE CAUSATION.

The Pelham defendants claim in their brief that Officer Gioia testified he received Mr.

Stewart’s 11:21 a.m. voicemail message at 12:01 p.m. The Pelham defendants rightly note the

plaintiffs’ assertions and evidence that Officer Gioia heard the voicemail message at 11:30 a.m.

The Pelham defendants concede the 11:21 a.m. voicemail is evidence of Mr. Stewart’s impairment.

The Pelham defendants’ opposing brief thus serves to highlight that there are material issues of fact

in dispute on this point.

The standard for evaluating cases at the summary judgment stage is well settled. In

reviewing a trial court’s grant of summary judgment, this Court considers the affidavits and other

evidence and all inferences properly drawn therefrom in the light most favorable to the non-moving

party. Iannelli v. Burger King, Inc., 145 N.H. 190, 193 (2000). If review reveals that there is no

evidence disclosing a genuine issue of material fact and the moving party is entitled to judgment as

a matter of law, this Court will affirm the grant of summary judgment. Id. “The trial court cannot

weigh the contents of the party’s affidavits and resolve factual issues.” Id. The trial court “must

determine whether a reasonable basis exists to dispute the facts claimed in the moving party’s

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affidavit at trial. If so, summary judgment must be denied.” Id. A court must not credit one party’s

account of the evidence over another. See Tolan v. Cotton, 134 S.Ct. 1861, 1867-68 (2014).

In Tolan v. Cotton, the United States Supreme Court reversed a trial court’s grant of

summary judgment, finding the trial court improperly credited evidence of one party and also failed

to properly acknowledge key evidence offered by the party opposing summary judgment. Id. at

1867. The Court reasoned:

The witnesses on both sides come to this case with their own perceptions, recollections, and even potential biases. It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system. By weighing the evidence and reaching factual inferences contrary to [plaintiffs’] competent evidence, the court below neglected to adhere to the fundamental principal that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party.

Id. at 1868. This Court has cautioned trial courts to be wary of its application of summary

judgment. Iannelli, 145 N.H. at 192.

Mr. Stewart’s testimony is that he was impaired when he made the call to Officer Gioia and

that Officer Gioia spoke with him after the voicemail message: “And I remember calling him from

the house at around 11:00, 11:30, but I was really messed up.” App. I at 613. Mr. Stewart

repeatedly testified that he thinks he spoke with Officer Gioia around 11:00 a.m. App. I at 606,

609.

In this case the trial court impermissibly weighed evidence and credited Officer Gioia’s

testimony that he listened to Mr. Stewart’s 11:21 a.m. voicemail message at approximately 12:01

p.m. In opposing summary judgment, the plaintiffs set forth sufficient contrary evidence that

Officer Gioia may have listened to Mr. Stewart’s crazed voicemail message around 11:30 a.m.

when he could have intervened to prevent this accident. Specifically, the plaintiff presented Officer

Gioia’s deposition testimony that he listened to Mr. Stewart’s crazed voicemail message around

24

11:30 a.m. and he did nothing to prevent Mr. Stewart from driving after hearing the voicemail

message:

Q. And it was probably around 11:30 a.m. or shortly thereafter that you heard that message. A. Correct. Q. You did not do anything about that. A. No, I did not.

App. I at 544. The jury should consider whether to believe what Officer Gioia said initially in his

deposition or his different answer in response to defense questioning. The jury should be permitted

to observe Officer Gioia’s demeanor and evaluate the credibility of his testimony.

The plaintiffs set forth sufficient evidence of Mr. Stewart’s impairment through Mr.

Stewart’s own testimony that he was impaired throughout the morning of June 26, 2010 and that he

would have shown outward signs of this intoxication. Officer Gioia had opportunities to interact

with Mr. Stewart and it is for the jury to decide whether Officer Gioia should have known that Mr.

Stewart was still impaired when he spoke with him on the morning of June 26, 2010. The plaintiffs

also countered the Pelham defendants’ argument that Mr. Stewart was not impaired with the

opinions of their forensic toxicologist. See Plaintiffs’ Brief at 8-9.

The Pelham defendants question, without citation to any authority, how they could have held

Mr. Stewart indefinitely consistent with Mr. Stewart’s constitutional rights. See Pelham defendants’

Brief at 12. This argument ignores Dr. Lyman’s opinion that it was error to release Mr. Stewart

while he was still intoxicated and Mr. Stewart should have been held “until he could be arraigned

the following Monday.” App. I at 248. So, Dr. Lyman did not state Mr. Stewart could be held

indefinitely and that the release was improper because it was foreseeable that he would continue to

drive impaired. Indeed, this is exactly what happened and the Pelham defendants’ failure to detain

25

Mr. Stewart was the proximate cause of this accident.5 Further, RSA 594:20-a provides that a

person arrested without a warrant may be held at a police station “not exceeding 24 hours,

Saturdays, Sundays and Holidays excepted.”

PLAINTIFFS’ REPLY BRIEF TO THE BRIEF OF WOODY’S AUTO REPAIR AND TOWING, INC.

The plaintiffs submit the following brief in reply to the opposition brief filed by Woody’s

Auto Repair and Towing, Inc. (“Woody’s).

ARGUMENT

I. THE TRIAL COURT ERRED BY FINDING THAT WOODY’S COULD NOT BE LIABLE FOR NEGLIGENT ENTRUSTMENT AS A MATTER OF LAW BECAUSE WOODY’S HAD A DUTY NOT TO RELEASE MR. STEWART’S SUV IF HE WAS VISIBLY IMPAIRED.

Woody’s argues it had no duty to the plaintiffs because RSA 262:32 and :33 required that it

return Mr. Stewart’s vehicle to him when he paid the towing fee. It argues it was a bailee and was

duty bound to return Mr. Stewart’s SUV to him. In support of this argument, Woody’s cites cases

involving valet services and repair shops. See Knighten v. Sam’s Parking Valet, 206 Cal. App. 3d

69 (1988)(valet service); Blocker v. WJA Realty, Ltd., 559 So.2d 291 (Fla. Dist. Ct. App.

1990)(valet service); Umble v. Sandy McKie and Sons, Inc., 690 N.E.2d 157 (Ill. App. Ct.

1998)(repair shop); Mills v. Continental Parking Corp., 475 P.2d 673 (Nev. 1970)(parking lot

operator); Morenko v. Downs Racing LP, 2014 PA Super. 128 (2013) (valet service) (copy included

in App. II at 1056).

The cases cited by Woody’s are factually distinguishable. None of the cases cited by

Woody’s are similar to the situation in the case at bar, which involves a police–ordered tow

following an arrest. Indeed, in Knighten, the California Court of Appeal specifically distinguished

5 The Pelham defendants have waived any challenge that the decision to detain Mr. Stewart is discretionary because they failed to preserve this claim in their notice of appeal.

26

cases involving police intervention, finding, “In the few cases where plaintiffs have been allowed to

proceed, police had intervened to the point of arresting the drunk driver, but negligently secured the

vehicle or the arrestee himself afterwards.” 206 Cal. App. 3d at 74 n.1 (citing, 743 P.2d at 75-76).

The California Court of Appeal observed, “A duty of care arises only upon a deliberate act of

intervention beyond the mere temporary detention of a drinking driver.” Id. The California Court

of Appeal in Knighten reasoned that when a parking service returns a vehicle to its bailor then it has

made the decision not to intervene and is not liable for negligent entrustment. Id.

This Court is not faced with the situations at issue in Knighten, Blocker, Umble, Mills, and

Morenko. Rather, this case is more like West v. Granny’s Rocker Niteclub, Inc., 643 N.E.2d 850

(Ill. App. Ct. 1994), where negligent entrustment liability existed in the context of police

impoundment of the vehicle negligently entrusted. See also Ransom, 743 P.2d at 75 (rejecting

bailment argument in the context of a police arrest of an intoxicated driver); Restatement (Second) of

Torts § 390 (1965). Further, as in Knighten, the intervention of the Pelham Police Department and

Woody’s in towing the SUV as part of Mr. Stewart’s arrest sets this case apart from voluntary

bailment situations. This intervention is an affirmative exercise of control over Mr. Stewart’s SUV

such that Woody’s (and the Town of Pelham’s) negligent entrustment of the SUV to an intoxicated

Mr. Stewart subjects them to liability for the foreseeable injuries caused by that conduct.

Moreover, Woody’s argument that RSA 262:32 and :33 shields them from negligent

entrustment liability is essentially an argument that those statutory provisions confer tort immunity

on tow operators. If the legislature had intended to immunize an entire industry or activity from

liability, it would have expressly done so. See, e.g., RSA 225-A (Ski Area Operator Immunity);

RSA 212:34 (Landowner Immunity). There is no indication in the plain language of RSA 262:32

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and :33 that the legislature sought to supplant the statutory and common law of negligent

entrustment.

Essentially, Woody’s asks this Court to find that even if Mr. Stewart came in to Woody’s

business premises stumbling drunk and reeking of alcohol, as long as he paid the towing fee, then

Woody’s is duty bound to turn over Mr. Stewart’s keys and let him drive away. This too is contrary

to New Hampshire public policy and New Hampshire law. “The foundation of a cause of action for

negligence is the doctrine of foreseeability. Duty and foreseeability are inextricably bound

together.” Weldy, 128 N.H. at 331 (quotations omitted). Here, it is reasonable to hold a tow

operator liable for handing over keys to a visibly intoxicated person where it is entirely foreseeable

that to do so would be to unleash a deadly weapon upon the innocent motoring public. Woody’s

controlled the SUV and could have prevented Mr. Stewart from driving and it is reasonable to

impose a duty under these circumstances. Moreover, the contract between the Town of Pelham and

Woody’s provided, “The tow requests include but are not limited to accident recovery, breakdowns,

abandoned vehicles, road hazards, citizen calls, investigative impoundments and safe keeping of

arrested or incapacitated persons.” App. II at 904 (emphasis added). Thus, the contract

specifically contemplated that Woody’s does not just tow vehicles, but had a duty of care with

respect to certain people.

II. THE TRIAL COURT’S RULING THAT RSA 262:40 DID NOT APPLY MISCONSTRUED THE PLAIN LANGUAGE OF THE STATUTE AND IMPERMISSIBLY DISCOUNTED EXPERT WITNESS TESTIMONY

Woody’s asserts that the trial court properly found that Mr. Stewart’s SUV was not impounded

because Chief Roarke and Officer Gioia state it was not impounded. It claims that because Chief

Roarke and Officer Gioia testified they had no further use for the vehicle, then it was not impounded.

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Woody’s arguments distort both the plain language of RSA 262:40 and the standard for opposing

summary judgment.

The foundation of Woody’s argument rests on interpreting RSA 262:40 to require that, to be

impounded, a vehicle must be taken for further investigation or to preserve evidence. The trial court

adopted this interpretation. However, the plain language of RSA 262:40 does not require that the

impounded vehicle fit into either of these situations. See Plaintiffs’ Brief at 28. Rather, RSA 262:40

provides, “Whenever a vehicle is reasonably believed to have been used in connection with a

criminal offense, and a peace officer has ordered the removal and impoundment of such vehicle, the

custodian of said vehicle shall release it upon authorization of the removing agency or a court of

competent jurisdiction.” RSA 262:40 does not provide any authority to impound a vehicle – it

applies when a vehicle has already been impounded for any of the reasons stated in RSA 262:32.

The trial court erred in finding that to be impounded, the vehicle must be retained as evidence or for

investigative purposes; it further erred in adopting the testimony of Chief Roarke and Officer Gioia

that Mr. Stewart’s SUV was not towed for these reasons and thus was not impounded.

The analysis of RSA 262:40 is complicated because it involves both factual and legal

determinations. However, as the trial court found, “the question of whether or not the facts in this

case constitutes ‘impoundment’ is a jury issue.” Supp. at 18. The defendants certainly can present

evidence of what they assert constitutes impoundment and whether Mr. Stewart’s SUV fit that

definition. However, in opposing summary judgment, the plaintiffs must set forth contrary

evidence to counter the defendants’ assertions. The plaintiffs properly countered the defendants’

evidence on impoundment by providing Dr. Lyman’s expert law enforcement opinion that Mr.

Stewart’s SUV was impounded. Thus, with respect to the issue of impoundment, the trial court

erred by crediting the defendants’ testimony over the plaintiffs’ expert law enforcement opinions.

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See Tolan, 134 S. Ct. at 1867-68 (reversing summary judgment where “the court below credited the

evidence of the party seeking summary judgment and failed to properly acknowledge key evidence

offered by the party opposing that motion.”).

“[A] trial is essentially a search for the truth.” Fenlon v. Thayer, 127 N.H. 702, 705 (1986).

The trial court cut the search for the truth short by adopting the defendants’ characterization of the

tow and ignoring plaintiffs’ expert’s opinion. Dr. Lyman was a properly disclosed expert witness.

No defendant challenged his qualifications or sought to exclude his testimony. A disputed issue of

fact exists about whether Mr. Stewart’s SUV was impounded. This disputed factual issue is

material because if the SUV was impounded, then Woody’s had a duty not to release it without

authorization from the Pelham Police Department pursuant to RSA 262:40. Woody’s claim that

Officer Gioia permitted release of the vehicle by telling Mr. Stewart how to obtain his SUV is

unavailing because: (1) the permission to release would have to be from the Pelham Police

Department to Woody’s and not Stewart; and (2) Officer Gioia’s conduct releasing Mr. Stewart and

by enabling him to get his SUV was negligent.

III. WOODY’S ARGUMENT THAT RSA 263:1-A DOES NOT APPLY IS INCORRECT BECAUSE IT RENDERS STAUTORY LANGUAGE SUPERFLUOUS.

Woody’s claims that RSA 263:1-a does not apply because that statute is limited to

unlicensed drivers. This argument is not persuasive because it ignores the plain language of the

statute and renders statutory language superfluous. RSA 263:1-a provides, in pertinent part, “No

person shall knowingly permit a motor vehicle owned or controlled by him to be driven by a person

who is not properly licensed or otherwise entitled to drive.” (emphasis added). “Basic statutory

construction rules require that all of the words of a statute must be given effect and that the

legislature is presumed not to have used superfluous or redundant words.” Pennelli v. Town of

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Pelham, 148 N.H. 365, 367-68 (2002)(quotations omitted). If RSA 263:1-a applied only to

unlicensed drivers, then the phrase “or otherwise entitled to drive” would be rendered meaningless.

IV. THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO WOODY’S BECAUSE A JURY COULD FIND THAT WOODY’S SHOULD HAVE KNOWN THAT MR. STEWART WAS VISIBLY IMPAIRED WHEN IT RETURNED HIS SUV TO HIM.

Woody’s argues there was no evidence that Mr. Stewart was visibly intoxicated when he came

to pick up his SUV. It asserts that Brendon Wood’s testimony that Mr. Stewart was not stumbling or

swaying is the final word on the matter. It claims the plaintiffs’ evidence to the contrary is insufficient.

Specifically, it claims that plaintiffs’ forensic toxicologist did not opine about Mr. Stewart’s condition at

the exact moment Mr. Stewart picked up his SUV from Woody’s and did not specifically include

reference to the 6:49 a.m. and 7:23 a.m. calls in his report. Further, it claims Mr. Stewart’s testimony

should be disregarded.

It is undisputed that the only way Mr. Stewart could have gotten his vehicle is for Woody’s to

release it to him. It is also undisputed that Mr. Stewart picked up his vehicle sometime after 9:00 a.m.

on June 26, 2010. The accident involving the Weavers and Mr. Sousa occurred at 12:03 p.m. on June

26, 2010. The accident scene is an approximate nineteen minute drive from Woody’s. App. II at 1201.

Thus, there is a narrow window of time when Mr. Stewart could have picked up his SUV from Woody’s

on June 26, 2010. There is also no dispute that Mr. Stewart was extremely impaired both at midnight on

June 25, 2010 when he was arrested for second offense driving while intoxicated and at 12:03 p.m. on

June 26, 2010 when he caused this accident. In the context of these undisputed facts, the plaintiffs set

forth additional credible evidence that a jury could find that Mr. Stewart was visibly impaired

throughout this time period.

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The plaintiffs’ forensic toxicologist, Dr. Barbieri, supports the fact that Mr. Stewart was

intoxicated during the time when Mr. Stewart would have gotten his SUV from Woody’s. Specifically,

Dr. Barbieri opined in his report:

• The level of Xanax in Mr. Stewart’s blood after the June 26, 2010 accident was between 66 and

75ng/mL, which is over twice what would be expected based on Mr. Stewart’s prescribed dose.

App. II at 984.

• Xanax is readily and almost completely absorbed, with peak plasma concentrations occurring in

1 to 2 hours after oral administration. App. II at 983.

• Xanax has a long elimination half-life of 11 hours and stays in the system for a long time. Id.

• The signs and symptoms noted to have been displayed by Mr. Stewart by officers at the accident

scene are consistent with CNS depression from Xanax, including: confusion, tired appearance,

difficulty concentrating, being unsteady on his feet. App. II at 984.

• In reported cases of driving while intoxicated involving Xanax, the levels of Xanax were a

reported range of 8-640 ng/mL, with 70% of the values being under 100 ng/mL. Id.

• Mr. Stewart may have had some impairment from Tramadol as well. App. II at 986.

• The effects on Mr. Stewart from the combination of multiple drugs taken by Mr. Stewart was

worse than the effects elicited by any single compound alone. App. II at 988.

Dr. Barbieri’s opinions support that Mr. Stewart was visibly impaired during the morning hours

of June 26, 2010, when it is undisputed that Mr. Stewart picked up his SUV from Woody’s. The levels

of Xanax in Mr. Stewart’s blood were high enough to cause signs of impairment. The pharmacologic

properties of the drug are such that it stays in the user’s system for a long time. There is a reasonable

inference that the drug was in Mr. Stewart’s system in the morning when he picked up his vehicle and

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that Mr. Stewart was visibly impaired from Xanax. The exact time Mr. Stewart picked up his SUV is

irrelevant in light of the undisputed fact that he had to have picked it up sometime after 9:00 a.m.

No defendant has challenged Dr. Barbieri’s qualifications or sought to exclude any of his

opinions. Further, no defendant timely disclosed any contrary expert opinion. Woody’s assertion that

Dr. Barbieri did not consider the 6:49 a.m. and the 7:23 a.m. calls in rendering his opinion is a matter for

cross-examination and does not undermine his opinions. See Baker Valley Lumber, Inc. v. Ingersoll-

Rand Co., 148 N.H. 609, 615 (2002)(An expert’s failure to address counter-arguments or to explain

aspects of his theory concern the weight of the testimony and are the province of the fact-finder not the

trial court.). Indeed, a reasonable inference is that Mr. Stewart woke up on June 26, 2010, called the

Pelham Police Department, then took Xanax and other drugs. If he had done so, then the Xanax would

be at its highest level within one to two hours of the 7:23 a.m. call – right around the time he would have

picked up his SUV from Woody’s. Further, Mr. Stewart’s 11:21 a.m. voicemail message certainly

evidences Mr. Stewart’s significant impairment.6 The distance between Mr. Stewart’s residence,

Woody’s and the accident scene is consistent with Mr. Stewart retrieving his SUV from Woody’s after

he left this voicemail message.

Mr. Stewart’s testimony also supports that he was visibly impaired when he picked up his SUV

from Woody’s. The defendants claim that Mr. Stewart’s testimony should be completely disregarded

because he could not remember picking up his SUV from Woody’s. However, the reason why Mr.

Stewart does not remember getting his SUV is crucial. Mr. Stewart testified he did not remember

picking up his SUV from Woody’s because he was out of his mind on drugs that morning. App. II at

1362. Mr. Stewart testified to what happens to him when he takes too much Xanax: slurred speech, not

remembering, blacking out, bad coordination.” App. II at 1363. Mr. Stewart took his medications every

morning. App. II at 1357-58. Mr. Wood can certainly claim that Mr. Stewart appeared sober to him

6 The parties dispute when Officer Gioia listened to this voicemail message.

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when he picked up his SUV. However, liability for negligent entrustment does not rest on the subjective

knowledge of the entrustor. Rather, liability for negligent entrustment exists when the entrustor knows,

or should have known that the person he is entrusting the vehicle to is unfit to drive. Hanover Ins. Co. v.

Grondin, 119 N.H. 394, 398 (1979); Restatement (Second) of Torts § 390 (1965). A reasonable jury

may find that Mr. Wood should have known that Mr. Stewart was unfit to drive when he came to pick

up his SUV because of the amount of Xanax and other drugs in his system such that summary judgment

was inappropriate.

CONCLUSION

For the reasons set forth herein and in the plaintiffs’ Opening Brief, the plaintiffs respectfully

request that this Court reverse the trial court’s grant of summary judgment to the Pelham Defendants

and Woody’s and remand this case to the trial court for a jury trial.

Respectfully submitted,

WILLIAM WEAVER, ET AL By Their Attorneys: McDOWELL & OSBURN, P.A. Date: December 21, 2015 By: _____________________________ Joseph F. McDowell, III, Esq. (#1675) Mark Morrissette, Esq. (#10033) Heather V. Menezes, Esq. (#17136) 282 River Road PO Box 3360 Manchester, NH 03105-3360 (603) 623-9300

REQUEST FOR ORAL ARGUMENT

The plaintiffs respectfully request oral argument not to exceed fifteen minutes. Mark

Morrissette will represent the plaintiffs.

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CERTIFICATE OF SERVICE

I hereby certify on this day two copies of the foregoing have been mailed, postage prepaid, to Michael Johnson, Esquire and Brian Cullen, Esquire via first class mail, postage paid.

Dated: December 21, 2015 ____________________________ Joseph F. McDowell, III

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