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                      THE SUPREME COURT OF NEW HAMPSHIRE

                             ___________________________


Rockingham
No. 2015-0335


                               WILLIAM WEAVER & a.

                                         v.

                              RANDALL STEWART & a.

                                Argued: May 3, 2016
                          Opinion Issued: October 27, 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.


                                         2
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


                                        3
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 negligent entrustment actions, and that the
Pelham defendants were not entitled to either statutory or common law
immunity.

      The trial court concluded that, because the plaintiffs chose to respond to
the motion by arguing in support of only the negligent entrustment claim, the
remaining claims against the Pelham defendants — for failing to detain Stewart
and the claim against the police chief for improperly training Gioia — should be
dismissed. The plaintiffs do not challenge the trial court’s decision to dismiss
the other claims against the Pelham defendants. We limit our analysis on
appeal accordingly.

       The trial court rejected the Pelham defendants’ argument that they were
entitled to immunity under RSA chapter 507-B or to official immunity under
the common law. Nonetheless, the court concluded that the Pelham
defendants were entitled to summary judgment because of the lack of evidence
that they proximately caused the motor vehicle accident that resulted in the
plaintiffs’ injuries. The plaintiffs unsuccessfully sought reconsideration.

      In regard to the suit against Woody’s, the plaintiffs asserted negligence
claims and that Woody’s violated RSA 262:40. Woody’s moved for summary
judgment, arguing that: (1) because Stewart’s vehicle was towed rather than
impounded under RSA 262:40, Woody’s was not required to obtain
authorization from the police or a court prior to releasing the vehicle; (2) given
the undisputed material facts, it could not be found liable under the theory of
negligent entrustment; and (3) Woody’s owed no duty of care to the plaintiffs
that would support a theory of negligence. The trial court granted the motion.

       The court found that Woody’s did not violate RSA 262:40, concluding
that the undisputed facts established that the vehicle was towed pursuant to
RSA 262:32, rather than impounded pursuant to RSA 262:40. The trial court
also rejected the plaintiffs’ argument that RSA 262:40 is a “safety statute”
designed to impose a duty of care upon an entity such as Woody’s. (Quotation
omitted.)

      In addition, the trial court concluded that Woody’s was not liable for
negligent entrustment because, among other reasons, “no reasonable jury
could conclude” that Wood had reason to believe that Stewart was impaired
when he picked up his vehicle. As to the plaintiffs’ negligence claim, the court
concluded that, even assuming that Woody’s owed the plaintiffs a duty, there
was insufficient evidence establishing that the duty was breached because
there was no evidence that Wood knew, or should have known, that Stewart


                                         4
was impaired. The plaintiffs unsuccessfully sought reconsideration of the trial
court’s rulings. This appeal followed.

II. Appellate Arguments

      A. Standard of Review

      “The mission of the summary judgment procedure is to pierce the
pleadings and assess the proof in order to determine if there is a genuine issue
of material fact requiring a formal trial of the action.” Community Oil Co. v.
Welch, 105 N.H. 320, 321 (1964) (quotation and citation omitted). A party
opposing a motion for summary judgment must “set forth specific facts
showing a genuine issue for trial,” and not simply assert “general allegations or
denials.” Hill-Grant Living Trust v. Kearsarge Lighting Precinct, 159 N.H. 529,
535 (2009) (quotation omitted).

       “In reviewing the trial court’s grant of summary judgment, we consider
the affidavits and other evidence, and all inferences properly drawn from them,
in the light most favorable to the non-moving party.” Pike v. Deutsche Bank
Nat’l Trust Co., 168 N.H. 40, 42 (2015). “If our review of that evidence
discloses no genuine issue of material fact, and if the moving party is entitled
to judgment as a matter of law, we will affirm the grant of summary judgment.”
Id. “We review the trial court’s application of the law to the facts de novo.” Id.

      B. Pelham Defendants

       The plaintiffs argue that the trial court erred when it granted summary
judgment in favor of the Pelham defendants on the claim of negligent
entrustment. Negligent entrustment is based upon the principle that “the
owner of a motor vehicle may be held 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 . . . is know[n] or should have been known to him.”
Chalmers v. Harris Motors, 104 N.H. 111, 114-15 (1962). “[A] defendant could
be unfit because of age, bad habits, dangerous propensities, carelessness,
recklessness, or habitual driving while under the influence of alcohol.” Burley
v. Kenneth Hudson, Inc., 122 N.H. 560, 563 (1982). “To succeed on a negligent
entrustment claim, the plaintiff must prove not only the driver’s incompetence,
but also the owner’s knowledge of that incompetence.” Burley, 122 N.H. at
563. Because the Pelham defendants do not argue otherwise, we assume,
without deciding, that negligent entrustment extends to non-owners of a
vehicle.

      The plaintiffs argue that “material issues of fact were in dispute
regarding whether Officer Gioia knew or should have known that Mr. Stewart
was intoxicated before the June 26, 2010 accident” and thereby “facilitated Mr.
Stewart’s driving by failing to contact Woody’s and prevent the release of [his


                                        5
vehicle].” (Bolding omitted.) In support of their argument, the plaintiffs rely
upon: (1) Stewart’s deposition testimony “that he was visibly intoxicated
throughout the time of his arrest until the June 26, 2010 accident”; (2)
Barbieri’s opinion “that, based on the levels of multiple drugs in Mr. Stewart’s
blood taken on June 26, 2010, Mr. Stewart would have exhibited impairment
signs on the morning of June 26, 2010”; and (3) the voicemail message that
Stewart left for Gioia on the day of the collision “that evidenced his continued
impairment.”

       We have reviewed the record and conclude that, taking the evidence in
the light most favorable to the plaintiffs, it does not give rise to a genuine issue
of material fact on the dispositive issue of whether Gioia knew, or should have
known, that, at the time Stewart arrived at Woody’s to pick up his vehicle, he
was impaired and, therefore, unfit to drive. Although Stewart speculated in his
deposition testimony that it “would have been obvious” that he exhibited signs
of impairment when he was at Woody’s, he repeatedly stated that he had
virtually no memory of the time between his arrest on the night of June 25 and
the collision.

       Moreover, Gioia was not at Woody’s when Stewart picked up his vehicle;
his last interactions with Stewart were the two brief telephone conversations at
6:49 a.m. and 7:23 a.m. on June 26 which, according to Gioia’s uncontradicted
deposition testimony, were “normal” conversations. In his toxicology report,
Barbieri opines that “within a reasonable degree of scientific certainty . . .
Stewart was impaired by [Xanax] at the time of the motor vehicle accident” and
“was showing signs of [central nervous system] impairment during the first
[arrest] and his contact with . . . Gioia.” (Emphases added.) But, he does not
address Stewart’s condition at the specific time at issue — when he picked up
his vehicle at Woody’s.

       Because the plaintiffs rely solely upon conjecture as to Stewart’s
condition when he spoke on the telephone with Gioia at 6:49 a.m. and 7:23
a.m., and when he picked up his vehicle at Woody’s, they have failed to set
forth specific facts showing a genuine issue for trial. See Hill-Grant Living
Trust, 159 N.H. at 535; see also State v. Pessetto, 160 N.H. 813, 818 (2010)
(explaining that “speculation . . . is not evidence”).

      The plaintiffs further argue that, based upon the voicemail message that
Stewart left for Gioia at 11:19 a.m., Gioia “was in a position to know of Mr.
Stewart’s intoxication on the morning of June 26.” However, because Stewart
had retrieved his car from Woody’s well before he left his voicemail message,
that message is irrelevant to the plaintiffs’ negligent entrustment claim.
Accordingly, we hold that the Pelham defendants are entitled to judgment as a
matter of law, and we affirm the trial court’s grant of summary judgment.




                                         6
      C. Woody’s

            1. RSA 262:32 and RSA 262:40

      The plaintiffs argue that the trial court erred when it granted summary
judgment in favor of Woody’s on the ground that, because the vehicle was
towed pursuant to RSA 262:32 rather than impounded pursuant to RSA
262:40, Woody’s was not required to obtain authorization from either the
Pelham Police Department or a court before releasing the vehicle to Stewart.
The plaintiffs assert that, because Gioia arrested Stewart for driving while
under the influence the night before the collision and had his vehicle towed to
Woody’s, the vehicle was “used in connection with a criminal offense, and a
peace officer . . . ordered the removal and impoundment of such vehicle.” RSA
262:40. Thus, the plaintiffs assert that Woody’s violated RSA 262:40 when it
released Stewart’s vehicle to him without prior authorization. In response,
Woody’s argues that the trial court correctly concluded that Stewart’s vehicle
was towed pursuant to RSA 262:32 rather than impounded. We agree with
Woody’s.

       Because resolving this issue requires us to engage in statutory
interpretation, our review is de novo. See Dichiara v. Sanborn Reg’l Sch. Dist.,
165 N.H. 694, 696 (2013). We are the final arbiter of the intent of the
legislature as expressed in the words of the statute considered as a whole. Id.
We first examine the language of the statute, and, when possible, we ascribe
the plain and ordinary meanings to the words used. Id. We interpret
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. Strike Four v. Nissan N. Am., 164 N.H. 729, 735 (2013). We
interpret statutory provisions in the context of the overall statutory scheme.
Id.

       Pursuant to RSA chapter 262, “[a]n authorized official may take a vehicle
into his or her custody and may cause the same to be taken away and stored at
some suitable place” only as provided in the statute. RSA 262:31 (2014). An
“[a]uthorized official” is “any police employee of the division of state police,
highway enforcement officer or other authorized employee of the department of
safety, or peace officer.” RSA 259:4-a (2014) (quotation omitted).

       RSA 262:32 sets forth seven circumstances under which an authorized
official “may cause the removal and storage of a vehicle.” As pertinent here, an
authorized official may do so if he or she “has reasonable grounds to believe”
that “[t]he owner or custodian of the vehicle is under arrest or otherwise
incapacitated, and the vehicle will be a menace to traffic if permitted to
remain.” RSA 262:32, VI. If a vehicle is removed pursuant to RSA 262:32, “all
reasonable charges incurred as a result of such removal and storage shall be a
lien against the vehicle which shall be paid by the owner . . . claiming such


                                       7
vehicle,” RSA 262:33, I (2014), and “the owner . . . shall be entitled to recover
said vehicle and release of the above lien by payment of all reasonable towing
and storage charges,” RSA 262:33, II (2014).

      By contrast, RSA 262:40 provides that:

            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.

Viewing this statutory scheme as a whole, we conclude that the plain language
in RSA 262:32, VI authorizes police officers to remove a vehicle after the owner
is arrested if “the vehicle will be a menace to traffic,” whereas the language in
RSA 262:40 is reasonably interpreted to authorize police officers to remove and
impound a vehicle because it may be evidence of a crime. Because under RSA
262:32, VI, a vehicle is removed simply to eliminate the hazard it otherwise
poses to traffic, the owner of the vehicle may recover it upon payment of the
towing and storage fees. However, because a vehicle is removed under RSA
262:40 in order to retain it for evidentiary purposes, the vehicle may not be
released until authorized by law enforcement or a court.

        As Gioia testified during his deposition, he arrested Stewart and then
asked Woody’s to tow Stewart’s vehicle because it was a “nuisance” on the
road, and so that “vehicle traffic could flow smoothly on that roadway.” He also
testified that there was no reason to preserve the vehicle for any evidentiary
purpose and that the police had “no use” for the vehicle after they left the scene
of the arrest. The Pelham police chief similarly testified that Stewart’s vehicle
was towed to Woody’s because Stewart had been arrested, the vehicle was “on
a roadway in a dangerous place,” and, therefore, to avoid an accident, the
vehicle needed to be removed from the road. There is no evidence that any law
enforcement officer instructed Woody’s to hold the vehicle until the police or a
court authorized its release.

      We conclude that the undisputed facts establish that Stewart’s vehicle
was towed pursuant to RSA 262:32. No officer “ordered the removal and
impoundment of” Stewart’s vehicle. RSA 262:40. The vehicle was not placed in
the custody of a law enforcement official or a court, or retained for any
evidentiary purpose. Rather, the evidence demonstrates that Gioia “cause[d]
the removal and storage” of Stewart’s vehicle because he had “reasonable
grounds to believe that” Stewart was “under arrest or otherwise incapacitated,
and the vehicle w[ould] be a menace to traffic if permitted to remain” in the
roadway. RSA 262:32, VI. Because Stewart’s vehicle was towed and stored
pursuant to RSA 262:32 and not impounded under RSA 262:40, Woody’s did



                                         8
not need to obtain authorization from the Pelham Police Department or a court
before releasing it to Stewart.

            2. Negligent Entrustment and Negligence

       The plaintiffs also argue that the trial court erred when it granted
summary judgment in favor of Woody’s on their claim that Woody’s was liable
for negligent entrustment. The plaintiffs assert that Woody’s had “custody and
control” over the vehicle and released it to a “visibly intoxicated” Stewart. The
plaintiffs contend that a negligent entrustment claim can apply to anyone with
control over a vehicle who “knowingly lets an unfit person, such [as] an
intoxicated person, . . . operate that vehicle.” Woody’s counters that “New
Hampshire has not extended a negligent entrustment action against any party
that is not the owner of a vehicle.” It also argues that there is no evidence that,
at the time that Stewart picked up his vehicle, a Woody’s employee knew, or
should have known, that Stewart was impaired. Because we agree that there
was no evidence that Wood, the only Woody’s employee to interact with
Stewart, knew, or should have known, of Stewart’s alleged impairment when he
picked up his vehicle, we need not decide whether a negligent entrustment
claim extends to non-owners of a vehicle.

      In order to survive a motion for summary judgment, “a plaintiff must
provide either evidence of the driver’s appearance or conduct at the time of the
entrustment, or evidence that the owner was otherwise aware of the driver’s
incompetence at that time.” Weber v. Budget Truck Rental, LLC, 254 P.3d 196,
199 (Wash. Ct. App. 2011). “Because the standard of liability revolves around
appearance, any direct or circumstantial evidence must address actual rather
than assumed appearance.” Id. (quotation and brackets omitted).

       Neither Stewart’s deposition testimony nor Barbieri’s toxicology report
gives rise to a genuine issue of material fact as to whether Wood knew, or
should have known, that Stewart was unfit to operate his vehicle when he
retrieved it from Woody’s between 8:30 a.m. and 10:00 a.m. Although Stewart
speculated in his deposition testimony that it “would have been obvious” that
he exhibited signs of impairment when he was at Woody’s, and that when he
took too much Xanax he would slur his speech, “black[ ] out,” and display
“[b]ad coordination,” this testimony does not create a disputed fact as to
whether Wood observed signs of impairment such that he knew, or should have
known, that Stewart was intoxicated. Further, as discussed above, although
Barbieri concludes in his toxicology report that Stewart was impaired when he
was arrested on the night of June 25 and at the time of the accident the
following day, he does not render an opinion as to whether Stewart was
impaired at the time he picked up his vehicle from Woody’s.




                                        9
      We agree with the trial court:

      What remains problematic for Plaintiffs is that this case is
      fundamentally about Mr. Stewart’s behavior when he retrieved his
      vehicle, and, more directly, Mr. Wood’s perceptions of Mr. Stewart
      at that time. Mr. Stewart admittedly has no memory of that
      particular encounter. Doctor Barbieri . . . speaks only in
      generalities and makes no mention of Mr. Stewart’s behavior at
      Woody’s. This evidence addresses the assumed appearance of Mr.
      Stewart, not his actual appearance . . . . Put another way, it would
      be inappropriate for the jury to make the inferential leap from this
      evidence that Mr. Wood actually observed that Mr. Stewart was
      visibly intoxicated.

(Citations omitted.)

        Wood testified in his deposition that Stewart did not appear to be
impaired when he picked up his vehicle. He explained that Stewart “wasn’t
falling down” and did not smell of alcohol, have glassy eyes, slurred speech, or
seem unsteady on his feet. Wood stated that he was able to understand what
Stewart said to him, that Stewart seemed to comprehend what Wood said to
him, and that he would not have released the vehicle had Stewart exhibited
any signs of impairment. We note that when Stewart’s vehicle was searched
following the collision the police found, for the first time, a Xanax prescription
“tag” in the back seat, thus suggesting that the drugs were taken after Stewart
picked up the vehicle at Woody’s. See Bourgeois v. Vanderbilt, 639 F. Supp. 2d
958, 966 (W.D. Ark. 2009) (granting summary judgment in favor of a casino on
plaintiff’s negligent entrustment claim because there was no “testimony or
other evidence to indicate that [the casino] knew or should have known that
[the defendant] was intoxicated” when he retrieved his vehicle from valet
parking), aff’d on other grounds, 417 F. App’x 605 (8th Cir. 2011); see also
Weber, 254 P.3d at 199 (rejecting, as insufficient to create a question of fact for
trial, expert’s testimony that, given the amount of methamphetamine in the
driver’s system at the time of his arrest, it was probable that he exhibited
“characteristic effects” of methamphetamine intoxication when he rented the
vehicle (quotation omitted)). Thus, we conclude that the trial court did not err
when it granted summary judgment to Woody’s on the plaintiffs’ negligent
entrustment claim.

       We likewise reject the plaintiffs’ argument that the trial court erred in
entering summary judgment in favor of Woody’s on their negligence claim. The
plaintiffs contend that based upon its towing contract with the Pelham Police
Department, Woody’s had a duty not to release “a vehicle to an intoxicated
person” because “injury to innocent third parties was foreseeable,” and because
Woody’s “voluntarily assumed a duty not to release vehicles to intoxicated
individuals.” However, because there is no evidence that Wood knew, or


                                        10
should have known, that Stewart was impaired when he retrieved his vehicle,
we need not decide whether Woody’s had a duty to not release a vehicle to an
impaired person. Accordingly, there is no evidence that Woody’s breached this
purported duty. Therefore, the trial court did not err when it granted summary
judgment to Woody’s on the plaintiffs’ negligence claim.

                                                Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.




                                     11
