Canavin v. Wilmington Transportation Co.

223 A.2d 902, 208 Pa. Super. 506, 1966 Pa. Super. LEXIS 877

• Court: Superior Court of Pennsylvania
• Decided: November 17, 1966
• Docket: Appeal, 481
• Status: Published

Opinions

Opinion by

Wright, J.,

On June 12, 1962, Clifford N. Canavin was struck and injured by an airport limousine of the Wilmington Transportation Company. He instituted an action in trespass which was tried nonjury and resulted in a verdict for the plaintiff in the sum of $6,600.00. Exceptions filed by the defendant were dismissed, and judgment was entered on the verdict.. The defendant has appealed. The factual situation appears in the following excerpt from the opinion below:

“Plaintiff was employed by National Car Rental Service, operating out of Philadelphia International Airport. On Tuesday, June 12, 1962, at about 4 p.m., plaintiff was struck by an airport limousine owned by defendant causing serious injuries. He was struck just as he was stepping on to the sidewalk, at the entrance to the limousine parking area of the airport. Plaintiff was taken to the hospital for emergency treatment, and thereafter he required continuous treatment for serious injuries to his back.

“It was later determined that the limousine had been left in the area with the keys in the ignition, and that a young boy from the Devereux School, in attempting to steal the vehicle, ran down the plaintiff. The limousine area at the time of this accident, was an open lot adjacent to the northern part of the airport terminal, and several hundred feet from the main entrance to the terminal building. This area was bounded by the building on one side and by sidewalks on the other sides. No fences or other devices were provided to keep persons out of the area. There was evidence that airport police were in the area frequently, but security officers were not stationed in the area constantly-

“The evidence disclosed that on several occasions in the past, vehicles had been stolen from the airport public parking lot a short distance from the rental area. That rental services such as Avis, Hertz and National Car Rental had all had vehicles stolen in the period before this occurrence. There was also evidence that youngsters had on numerous occasions vandalized the vehicles in the several parking lots and the limousine area, stealing hub caps and other accessories. There were numerous thefts from the area where the accident occurred, and occasional auto thefts, Young persons and juveniles were a usual problem in and about the airport, and they would break into the ears and steal accessories.

“The defense introduced evidence that, because of the small size of this area, it was the usual practice to leave keys in the ignition to move the cars about. Also, that there were no auto thefts from this area, but only from the parking lots, the closest of which was 700 to 800 feet away”.

A majority of the court is of the opinion that this appeal is controlled by the recent decision of our Supreme Court in Liney v. Chestnut Motors, Inc., 421 Pa. 26, 218 A. 2d 336. In that case the automobile of a customer had been delivered to the defendant’s garage for repairs. This automobile was permitted to remain outside the garage building, double parked in the street and with the key in the ignition. Some three hours later it was stolen by an adult stranger and driven so carelessly as to strike and injure a pedestrian. An order of the trial court sustaining preliminary objections to the pedestrian’s complaint in trespass was affirmed on the ground that it failed to state a cause of action. Mr. Justice Eagen made the following pertinent statement (citations omitted) :

“Assuming that defendant’s employees were negligent in permitting the automobile to remain outside in the street under the circumstances described, it is clear that the defendant could not have anticipated and foreseen that this carelessness of its employees would result in the harm the plaintiff suffered. . . In other words, the defendant violated no duty owed to the plaintiff. This being so, the plaintiff was not harmed by the defendant’s negligence. . . Assuming also that the defendant should have foreseen the likelihood of the theft of the automobile, nothing existed in the present case to put it on notice that the thief would be an incompetent or careless driver. Under the circumstanees, the thief’s careless operation of the automobile was a superseding cause of the injury suffered, and defendant’s negligence, if such existed, only a remote cause thereof upon which no action would lie”.

At the time of the order that judgment be entered in the case at bar, February 25, 1966, the court below did not have the benefit of the decision in the Liney case, the opinion in which was filed March 22, 1966. Appellant’s petition for reargument was denied. The case of Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171 A. 2d 771, upon which the lower court placed reliance, was distinguished by Mr. Justice Eagen in the Liney case. We find no evidence in the instant record to charge this appellant with notice, or cause it to foresee, that a fourteen year old boy would steal and undertake to operate the large airport limousine here involved.

Judgment reversed and here entered for the appellant.