Kevin R. Hough
Shawn P. McKiernan et al
Providence County Superior Court. (PC 08-5961). Associate Justice Kristin E. Rodgers.
For Plaintiff: William M. Heffernan, Esq.
For Defendant: Kevin S. Cotter, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
Kevin R. Hough (plaintiff) was severely injured when he was punched by Shawn P. McKiernan, the force of the blow causing Hough to fall backwards and strike his head on the pavement of a street. Immediately prior to this incident, McKiernan had driven by Hough on several occasions in an automobile owned by one Rita Bower, flashing the high beams and taunting Hough as he drove past.
Among the defendants sued by Hough was Quincy Mutual Fire Insurance Company (Quincy), the insurer of the vehicle driven by McKiernan. The plaintiff alleges liability under the provisions of G.L. 1956 § 31-33-6, which imputes vicarious liability upon the owner of a vehicle for its consensual use or operation. Hough now appeals from a Superior Court judgment as a matter of law in favor of Quincy. The issue presented in this case concerns the liability of a motor vehicle owner, or her insurer, for injuries caused by the intentional act of a permissive driver, but which act occurred at a distance from the vehicle. Because we conclude that plaintiff has failed to demonstrate a causal connection between the vehicle and his injuries, we affirm the judgment of the Superior Court.
Facts and Procedural History
On the evening of February 22, 2006, McKiernan drove a black GMC Sonoma truck, owned by one of his parents, to a social gathering at the home of his friend,
Brian Burke. The gathering that evening consisted of McKiernan, Burke, Krista Archer, Wade Berard, Brian Petabella, and Samantha Grasso. At one point during the evening, Grasso asked McKiernan for permission to borrow the GMC Sonoma truck to find her boyfriend, Mike Gauthier. McKiernan declined to give her permission.
Notwithstanding his refusal, Grasso found McKiernan's keys and took the truck without permission. Later, Archer allowed McKiernan to use her red Nissan Altima (the Bower or insured vehicle) to search for the truck. This vehicle was owned by Archer's grandmother, Rita Bower. Prior to trial, Quincy admitted that Bower, as the vehicle owner, gave permission to Archer for the regular use of the vehicle and specifically for its use on the evening of February 22 and early morning hours of February 23, 2006. Quincy also admitted that it insured the Bower vehicle on those dates.
McKiernan testified at trial that he thought he was insured on the date in question through an Allstate Indemnity Company (Allstate) automobile policy. The Allstate policy listed his father, Peter McKiernan, as the named insured and Shawn McKiernan was listed as a " driver" on the declarations page.
After departing his friend's house, McKiernan and his passengers (Archer, Burke, and Berard) drove through Warwick looking for Grasso and the missing truck. As they searched the streets, they came upon two people walking along Davidson Road. The two young men were Hough and Nicholas Messier. According to plaintiff's testimony, as the vehicle approached them, McKiernan rolled down his window and yelled " [v]arious obscenities" at them as the vehicle passed by. McKiernan testified that he considered his insults to be funny jokes about the boys' mothers that amused his laughing companions in the vehicle. McKiernan indicated in his testimony that he circled around and drove by plaintiff and Messier several times, hurling insults and flashing the high beams, as his passengers continued to " egg" him on.
McKiernan testified that, after such passages, he stopped the insured vehicle when he spotted his missing truck. He further testified that he waited some period of time, between five and ten minutes, before exiting the insured vehicle, while plaintiff and Messier talked to the people in his truck. Concerning the proximity of the insured vehicle in relation to Hough, plaintiff testified that McKiernan stopped the car " about two or three car lengths ahead of us." McKiernan testified that the car was " [t]hree or four car lengths" away from plaintiff and Messier. McKiernan also testified that, as he was sitting in the car, someone flicked a cigarette, which hit him in the face. Agitated and annoyed, McKiernan, along with Burke and Berard, jumped out of the car and chased Messier. McKiernan first shoved Messier, but then instead pursued Hough once Messier demonstrated that he was still holding his cigarette.
Turning his attention to plaintiff, McKiernan swung at him but plaintiff " ducked" thereby avoiding the blow. The plaintiff testified that he then stated, " I'm not going to fight you," but McKiernan punched ...