Boston Accident Lawyer Blog

Normally, this story would be posted on my Massachusetts criminal law blog. But I feel that it deserves to be discussed here, for reasons illustrating the legal concepts of negligence and wrongful death. This is an appallingly frightening story, nightmarish in its reality, and stunning in what appears at this time to be shocking negligence on the part of a local police department in Connecticut.

On July 23 2007, at 9:17 AM, a woman walked into a Connecticut bank, and in the process of withdrawing $15,000.00 in cash, explained to a teller as calmly as she could, that her husband and two daughters were being held hostage by two men who had invaded their Cheshire, Conn., home the night before. She told the teller that the armed invaders assured her that if they did not receive this money, that her husband and daughters would be killed. Trying desperately to appear inconspicuous, the woman, Jennifer Hawke-Petit, explained to the teller that she had been driven to the bank by one of the kidnappers, that he was watching her from the car, and also told the teller that the kidnappers had told her (Mrs. Petit,) that if the police were called, the armed invaders would kill her family. The woman then collected the $15,000.00 withdrawn from the account by the teller, and left the bank.

The bank manager was alerted to what had just transpired, and immediately called the Cheshire, CT Police Department. At 9:21 AM, Cheshire Police first learned of the hostage situation. About three miles away, her husband William and daughters Michaela, 11 and Hayley, 17 were being savagely beaten and terrorized by the armed invaders. At 9:26 AM, Mrs. Petit left the bank and got into the car waiting for her. She was closely watched by bank employees, and the bank manager provided a description of the vehicle to Cheshire Police, who were also given Mrs. Petit’s home address. At that same time (9:26 AM,) police cruisers were dispatched to the Petit home, to “set up a perimeter.” At 9:27 AM, a Police Department Captain ordered his officers to not approach the home. For the next thirty minutes, not a single officer approached the Petit home, or did anything to save the Petit family. Within this very time frame, the Petit family was being traumatized, tied up, beaten with a baseball bat, and one of the daughters raped. Worse, during this entire time frame, no other authorities were alerted to this situation by the Cheshire Police Department – not the Connecticut State Police or the State Police SWAT Team, not EMS or medical rescue personnel, not the Fire Department.

At 9:54 AM, police received a call from the Petit’s next door neighbor: Dr. William Petit, beaten by his captors horrifically about the head and face with a baseball bat, had managed to break free from being tied to a post in his basement, and made his way to his neighbor, who had called police. Dr.Petit was beaten so badly and bleeding so profusely that he was unrecognizable to his neighbor. His feet were still tied: He had managed to crawl to the neighbor’s house. By now, almost 40 (forty) minutes had passed from the time the Cheshire Police were first notified by the bank manager – and nothing had been done to rescue this brutalized family. Approximately 2 (two) minutes later, the Petit home burst into flames. Only then were EMS and Fire Department rescue personnel called. By the time firefighters entered the building and found Mrs. Petit and her two daughters, all three were dead: Mrs. Petit had been sexually assaulted, then strangled to death, both daughters died of smoke inhalation; one of them had been sexually assaulted before she died. The first time the Cheshire Police made any contact with these two defendants now on trial, Steven Hayes, 47, and Joshua Komisarjevsky, 30, was when this nightmare ended: Specifically, when the two defendants jumped into the Petit family car and tried to ram their way through police cruisers. Only then it was too late: Dr. Petit’s wife and two daughters lay dead inside his home. To see a video report of this horrific story, click on Cheshire Conn. Home Invasion Murders.

In the current criminal trial of these two defendants, Cheshire Police officials testified that their actions in not trying to enter the home or rescue this family were ‘standard operating procedure.’ I don’t claim to be an expert in law enforcement hostage-situation management, but as a former Special Assistant District Attorney and a Norfolk County Massachusetts criminal defense attorney, I know a thing or two about sound police procedure. I’m also pretty familiar with something called common sense – and neither pass the smell test here. I’ll explain what the legal consequences of this inaction might be, from a civil law and liability perspective, in my next post.

Based on what I’ve learned from available sources as of this date, it appears to me that police officials in this town engaged in a shocking degree of negligence in this case

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.”

In an encouraging sign that juries in Massachusetts have not completely bought the fallacy of "tort reform" and lost sight of the meaning of civil justice, a Norfolk County Superior Court jury recently awarded a $12 million plaintiff’s verdict in the case of a Massachusetts motor vehicle accident that resulted in horrific injuries for the injured parties who brought suit against the at-fault driver.

The case, Silviero v. Gentile, Norfolk Superior Court No.: 2007-212, resulted from a 2006 crash in Milton that left two men, brothers in their 60’s who lived with each other, devastatingly injured for the rest of their lives. The case is noteworthy not only for the large verdict, (especially in Norfolk County, which has not been known for producing large plaintiff’s verdicts,) but for the punishment the jury obviously felt was warranted in light of the defendant’s clearly false testimony in the case.

The two brothers who were victims in this Milton Massachusetts car accident case, Douglas and Joseph Homsi of Needham, were driving on Blue Hill Avenue in Milton at around 2 a.m. on Dec. 10, 2006, when a speeding Sport Utility Vehicle (SUV) driven by (then) 26-year-old Vittorio C. Gentile Jr. of Canton, swerved across the double yellow lines in the roadway and collided head-on with the Homsi brothers’ vehicle. The resulting impact was so severe that rescue workers had to use the Jaws of Life to pry the brothers from the twisted wreckage. Joseph Homsi, who was the passenger, suffered a broken sternum and fractured ribs, as well as internal injuries. However, his brother, Douglas Homsi, who was the driver, suffered the worst from the impact, sustaining severe multiple bone fractures as well as injuries to his liver, spleen and other organs, which, collectively, left him unable to breathe or eat without assistance. The combination of these injuries later caused Douglas to suffer a stroke, which left him unable to speak. Making the result of Douglas’ injuries even more tragic was the fact that Douglas served as an informal caretaker for his brother Joseph, who suffers from mental disabilities. That is one of the reasons why the two brothers lived together in their Needham home.

But it wasn’t only the horrific injuries these two men suffered, and the fact that Douglas Homsi cared for his mentally disabled brother, which made this case stand out to the jury. In fact, a major reason for this verdict had less to do with the facts of the actual accident itself, than it had to do with events that took place before and after the accident. Events involving lying, deception, and false testimony –by the owners of the vehicle that Gentile was driving the night of the accident. The SUV that the younger Gentile had been driving that night didn’t belong to him. No, he hadn’t stolen it, either – he was using it with the tacit permission of the owners, who are Gentile’s grandparents, Lydia and Vittorio Gentile, of Westwood, Massachusetts. And it was the actions of the grandparents both before and after this accident, together with the younger Gentile’s actions in the accident – that caused this jury to award these victims $12 million.

You see, it seems that young Vittorio Gentile has a long and troubling record of motor vehicle violations and accidents, riddled with citations dating back to 1997 - of which his grandparents were both well aware of. In fact, the grandparents were so aware of their grandson’s high-risk driving history, that they took special steps with their auto insurance agent to have the younger Gentile removed as a "covered driver" from their auto insurance policy covering the vehicle that was involved in this crash. They removed their grandson from the policy because keeping him on it as a covered driver was causing their insurance premiums to increase dramatically, due to the younger Gentile’s numerous operator violations and motor vehicle accidents that he had been cited in. This introduces the legal doctrine of "Negligent Entrustment," which essentially served as the basis for the jury’s finding in this case. I’ll discuss that legal doctrine, why the jury found liability here, and why they returned such a large verdict for these plaintiffs in my next post on this case.