A state appeals court in San Francisco has ruled that a man who was shot in an apparent road-rage incident in Richmond two years ago can’t sue a car salesman for allegedly enraging the shooter with an obscene gesture.
The Court of Appeal on Thursday upheld a Contra Costa County Superior Court judge’s dismissal of a lawsuit filed by Adam Vue, 25, of Gold River in Sacramento County, against East Bay Mitsubishi of El Cerrito and salesman Gabriel Lobos.
Vue was test-driving a SUV from the dealership, with Lobos as a passenger, on Interstate Highway 80 in Richmond on Jan. 11, 2007, when he was shot in the head by an unknown gunman in a Nissan Murano.
Vue suffered brain damage and physical impairment and is now permanently disabled, according to Drew Widders, one of his lawyers.
Vue’s lawsuit claimed Lobos and the car dealership were responsible for his injuries because Lobos allegedly enraged the shooter by “flipping off” the other car with an obscene gesture.
The alleged gesture was made after the Murano nearly collided with the SUV, Vue honked and the driver of the Murano cut off the SUV, according to the lawsuit.
Vue argued the hostile gesture created a foreseeable risk of harm because of the prevalence of road rage in the United States.
But a three-judge appeals panel said the chance that the occupants of the other car would respond with gunfire was so small that it could not be considered foreseeable.
Justice James Richman wrote, “Considering that in one year alone, Americans drive over 2 trillion miles, the likelihood of encountering a driver who responds to a disagreement with deadly force is so infinitely small it cannot be said to be reasonably foreseeable.”
The appeals court also said there was no evidence the shooting was caused by the alleged gesture rather than other possible factors, such as Vue’s driving, his honking the horn or an intent on the part of the gunman to shoot someone after entering the freeway.
Widders said Vue plans to appeal to the California Supreme Court for the right to have a trial on the lawsuit.
“We think this is something a jury should decide,” the attorney said.
“People should be held responsible for their actions that cause harm to innocent third parties,” Widders said.
Widders said the gunman was never found, although the Murano, which had been stolen, was found near Pinole the next day.
James Waite, a lawyer for Lobos and the dealership, was not available for comment.
Widders said that in a pretrial deposition, Lobos said he had thrown his hands in the air as if to say, “What are you doing?” to the other driver, but Lobos did not admit to making an obscene gesture.
The question of what gesture was made and whether it caused the shooting would be decided by a jury if Vue wins the right to a trial in a continued appeal.