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Presented with an opportunity to expand or limit the scope of third party liability for impaired driving, the New Hampshire Supreme Court recently did neither, in a decision which raises significant questions but offers few answers.
Weaver v. Stewart, 2016 WL 6276083 (N.H. Oct. 27, 2016), arose out of a fatal collision between the plaintiffs and an impaired driver (Stewart). The accident occurred around noon, approximately twelve hours after Stewart had been pulled over by a Pelham police officer and charged with driving under the influence. At the time of his initial arrest, Stewart’s vehicle was towed at the request of police. He was released from police custody after approximately two hours, and the following morning he retrieved his vehicle from the towing company (Woody’s Auto Repair & Towing). Several hours later, he drove into oncoming traffic and struck two motorcycles, injuring both operators and killing a passenger. Following the accident, he was found to be under the influence of “multiple drugs, including Xanax.”
The plaintiffs filed suit against the Town of Pelham, the arresting officer and the chief of police (“the Pelham defendants”), as well as the towing company. They argued that the Pelham defendants could be held liable on a “negligent entrustment” theory for having allowed Stewart to retrieve his vehicle when they knew or should have known that he was impaired. They also argued that Woody’s was liable for negligent entrustment and/or for negligently releasing the vehicle to an intoxicated person. Summary judgment was entered for the defendants, and the plaintiffs appealed.
“Negligent entrustment” liability typically applies only to the owner of a vehicle, who allows an incompetent driver to use his vehicle despite knowledge of that person’s incompetence. It is questionable whether the theory would apply to either the Pelham defendants or the towing company, but the plaintiffs argued that it should be expanded to cover anyone with “control” of a vehicle. Woody’s argued against broadening the theory, and maintained that it owed no legal duty to refuse to release a vehicle to its owner, even if that person were impaired. The Pelham defendants chose not to challenge the applicability of negligent entrustment, but focused instead on the assertion that, as public officials, they were entitled to immunity from liability. All of the defendants also argued that the evidence was insufficient to establish negligence in any event, because the plaintiffs failed to prove that they knew or should have known that Stewart was still impaired when he retrieved the vehicle.
In affirming the judgment of the lower court, the New Hampshire Supreme Court sidestepped the potentially thorny issues regarding the applicability of negligent entrustment to non-owners, the scope of official immunity, and the imposition of a duty on third parties to prevent an intoxicated person from driving his own vehicle. Instead, the Court focused exclusively on the limited evidence of Stewart’s condition when he retrieved the vehicle, hours after his arrest and before the accident. Both the officer who spoke with Stewart by telephone that morning and the Woody’s employee who returned the vehicle testified that Stewart did not display any signs of intoxication, and the plaintiffs’ expert expressed no opinion on Stewart’s condition that morning. However, there was evidence that Stewart left an “incoherent” voice mail message for the officer within a couple of hours after picking up the vehicle. Stewart himself testified that he had virtually no memory of the time between his arrest and the accident twelve hours later, and said it “would have been obvious” that he was still impaired when he retrieved the vehicle. Nevertheless, the Court concluded that the evidence of Stewart’s condition at the critical time was merely speculative, and that a jury could not reasonably infer that he displayed signs of intoxication when he spoke to the officer and/or when he retrieved his vehicle.
While the evidence was undeniably weak, the summary judgment standard required that it be viewed in the light most favorable to the plaintiffs. As such, it is somewhat surprising that the Court opted to affirm the judgment by ruling that the evidence was legally insufficient. The fact that it did so without offering any hint of its inclinations in regard to the significant legal issues presented could be interpreted to suggest that there is disagreement among the justices over whether the scope of negligent entrustment liability should be expanded. It might also mean that the Court prefers to wait for a case with clearer facts before setting a precedent with potentially far-reaching implications. In any event, by declining to foreclose the possibility that a third party might be held liable for failing to prevent an intoxicated person from driving his own vehicle, the decision leaves New Hampshire law in a state of lingering uncertainty.