The Kickham Comment - Boston Accident Lawyer Blog
In my last post on this subject, I discussed the incredibly rare, recent jury verdict of $12 million that was awarded in a case involving a Norfolk County car accident. Almost all of Massachusetts, and especially Norfolk County, is notorious for finding against plaintiffs in Massachusetts personal injury lawsuits, so this verdict was widely noticed. Much of the reason for that very large and rare verdict amount, had to do with the perception that the defendant and his grandparents were not testifying truthfully in the case. But the other, equally important reason, was a legal doctrine known as “Negligent Entrustment.”
You’ll note from Part One of this post, that the driver of the car (Vittorio C. Gentile, Jr.) who injured the plaintiffs (in this case Douglas and Joseph Homsi,) was driving a 1999 Lexus SUV owned by his grandparents, Lydia and Vittorio Gentile. The younger Gentile had been found criminally responsible for the head-on collision in a criminal prosecution, and served jail time for that conviction. Evidence in the case showed that the younger Gentile had the tacit permission of his grandparents to use their car the night of this accident (evidence showed that they made the car keys available to him, and that he had driven their car in the two days preceding the accident.) Normally, in such a situation involving “permissive use,” the owner’s automobile insurance policy would provide coverage up to the policy limits on that vehicle, and if a jury verdict or pre-trial settlement was reached that exceeded the limits of that auto policy, it might be possible to pursue the vehicle owner’s homeowner’s policy and any umbrella coverage provided by that homeowner’s policy. And normally, it would be the driver’s conduct and actions that would guide a jury to determine liability and the extent of any damages. But in an odd twist, in this case it was the conduct of the driver’s grandparents that caused this jury to return the verdict that they did. This was largely because of the doctrine of Negligent Entrustment.
You see, evidence was introduced to show that Vittorio’s grandparents were well aware of his horrid driving record, together with his general personal history, which apparently did not reflect a high level of responsibility. Despite this, they made their car available to him. In court documents, it was revealed that the elder Gentiles denied that they were in any way aware of their grandson’s poor driving record, and also denied that they had either made their car available to him for his use, or that they gave him permission to drive it. Fortunately for the plaintiffs, their lawyer was smart enough to obtain documents that showed: 1) Not only were the grandparents aware of their grandson’s record of previous driving accidents, they were so aware of it that they held a special meeting with their auto insurance agent, following high premium surcharges they were paying due to their grandson’s inclusion on their policy as a “covered driver.” The plaintiffs’ attorneys alleged that the younger Gentile had been hit with so many surcharges for operator citations, license suspensions and accidents dating back to 1997, that his grandparents had him removed him from their insurance policy even though other grandchildren were still covered and permitted to use their vehicles. It was reported that video deposition testimony of the insurance agent who issued multiple auto vehicle policies for the grandparents proved this, and was especially damaging to the grandparents’ claim that they had no idea their grandson was a high-risk driver. This evidence established knowledge and awareness on the grandparents’ part of the dangerous driving record of the defendant.
2) As to the grandparents’ denial that they gave their grandson permission to drive their car, evidence introduced at trial established that they had made their car keys available to the defendant repeatedly. A private investigator uncovered evidence that the grandson had often used the Lexus with the tacit consent of his grandparents, and further, that the younger Gentile had driven the SUV in the 48 hours prior to the crash. Despite this, the grandparents insisted that they didn’t know who had the car or where it was in the two days leading up to the crash (surprisingly, even though they never reported the vehicle as missing or stolen.) All this evidence, critically, convinced the jury that the grandparents’ testimony on these key issues was not reliable – and the jury clearly meant to issue punishment for it.
Hence, even though the operator clearly caused this accident, it was the conduct of parties not even at the scene of the accident, which produced this verdict. I have to give credit to the plaintiffs’ attorneys here. They knew from the beginning that the younger Gentile had few assets and their due diligence apparently showed that his grandparents held title to more than $2 million in real estate. They knew that the grandparents’ conduct would be key in this case, and that it was they, not the younger Gentile, who would have to be the “deep pockets” to pay for the hospital bills and future care that Douglas Homsi will require the rest of his life. Hence, the victims’ attorneys moved rapidly to get a pre-judgment attachment for $1.5 million against three properties the defendant grandparents own in Massachusetts, including their home in Westwood. In a very smart and preemptive move, the Homsi’s attorneys also obtained an injunction to prevent the grandparents from transferring assets out of their names.
Cases involving claims of Negligent Entrustment are often difficult to win. Most cases involving a driver causing harm while using another person’s car, are won or lost in the issue of whether or not the vehicle’s owner consented (expressly or tacitly,) to its use. This theory of liability is an especially high hurdle for an attorney to overcome, because it must be shown that the defendants knew or should have known about something(i.e., the operator’s dangerous driving propensities) that they claim they did not. This can be a very difficult point to prove with a licensed operator. Fortunately for the plaintiffs in this case, that evidence was made clear enough for the jury. The evidence persuaded the jury that the grandparents knew of their grandson’s horrible driving record, and yet failed to take any steps to keep him from using their car or to otherwise stop him.
Not a pleasant story or a pleasant outcome, for anyone involved. This case will very likely proceed to appeal, and what happens in the end has yet to be determined with finality. But, as a Dedham, Massachusetts car accident lawyer, I can assure you: This verdict serves as a cautionary warning to anyone who routinely allows another person – family member or otherwise – to operate their motor vehicle: 1) If you know or have reason to know that such a person is a dangerous operator, and you still tacitly allow this person to use your vehicle, you can be held personally liable for any resulting damages. This is completely separate from the issue of insurance coverage. That issue relates to coverage, not liability. Regardless of whether or not that person is listed as a covered operator on your vehicle’s insurance policy, you can still be held liable for third-party injuries and damages if you allow a dangerous or irresponsible driver to operate your vehicle.
So think twice before you tell someone whose driving history would or should arguably be known to you, “Sure, take my car.”