Cruz v. Middlekauff Lincoln-Mercury, Inc.

909 P.2d 1252, 281 Utah Adv. Rep. 51, 1996 Utah LEXIS 4, 1996 WL 10371

• Court: Utah Supreme Court
• Decided: January 10, 1996
• Docket: No. 940399
• Status: Published

Opinions

HOWE, Justice:

We granted defendant Middlekauff Lincoln-Mercury, Inc.’s petition for interlocutory appeal after the trial court denied its motion to dismiss plaintiffs’ complaint for failure to state a claim upon which relief can be granted. Utah R.Civ.P. 12(b)(6). The propriety of a trial court’s decision to grant or deny a motion to dismiss under rule 12(b)(6) is a question of law that we review for correctness. St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 196 (Utah 1991). In reviewing the trial court’s ruling, we accept the factual allegations in the complaint as true and draw all reasonable inferences from those facts in a light most favorable to plaintiffs. Roark v. Crabtree, 893 P.2d 1058, 1059-60 (Utah 1995) (citing Prows v. State, 822 P.2d 764, 766 (Utah 1991); St. Benedict’s Dev. Co., 811 P.2d at 196). We recite the facts accordingly.

I. FACTS

Middlekauff is a ear dealership located in Salt Lake County engaged in the business of selling new and used cars. In the early evening of May 16, 1992, a thief walked onto the dealer’s premises, got into a 1991 Lincoln Towncar, turned the key that had been left in the ignition by Middlekauff employees, and drove the car out of the lot, all without being challenged. At about 8:00 that evening, police located and pursued the stolen car. The thief, seeking to evade the police, sped through a red light and crashed into the car of plaintiffs Francisco Javier Cruz and Melody Cruz. As a result of the accident, the Cruzes suffered severe medical injuries, as well as the loss of their unborn child with whom Mrs. Cruz was five months’ pregnant.

Middlekauff had a management policy to leave the keys in the ignitions of certain cars parked on its lot, and it customarily did so. Numerous other Middlekauff cars with keys in the ignitions had been stolen prior to this incident, including several thefts by this particular thief. The public had easy access to the cars, which were parked in a location that permitted them to be driven off the lot without attracting attention. Middlekauff provided no surveillance or security for the cars. The car that was stolen in this case was left unattended during the early evening hours when there were numerous customers on the lot, and the theft was not immediately noticed by Middlekauff.

The Cruzes filed this action against Mid-dlekauff for medical expenses, lost wages, and various other types of damages, including punitive damages. The complaint alleges that Middlekauff is liable for negligence and negligent infliction of emotional distress because it was foreseeable that its thief-operated ears would be recklessly or negligently driven and cause injury and death to members of the public. In response, Middlekauff filed a rule 12(b)(6) motion to dismiss. The trial court denied the motion, and we granted Middlekauffs petition for interlocutory appeal.

II. ANALYSIS

We examine whether, under the facts alleged, Middlekauff may be liable for injuries caused by the thief on the theory that it was negligent in leaving keys in the car that was stolen. Middlekauff contends that the case of Rollins v. Petersen, 813 P.2d 1156 (Utah 1991), precludes this action because it stands for the principle that a vehicle owner has no duty to protect an injured plaintiff from the negligent driving of a thief. The Cruzes counter that Rollins is not applicable because the plaintiffs in that case sued the car owners on the sole theory that a statute, Utah Code Ann. § 41-6-105, created a duty owed by the vehicle owner, without examining or ruling on whether a common law duty existed.

In Rollins, an escapee of a mental hospital found an unattended ear with its engine running on a nearby residential street. Id. at 1158. He stole the car and while fleeing police, collided head-on with another vehicle, killing the decedent. The decedent’s estate brought an action against, among others, the owners of the car, alleging that “they negligently failed to secure their automobile and that [the decedent’s] death proximately resulted.” Id. The trial court granted summary judgment for the owners, finding that they owed no duty of care to the decedent.

On appeal, the estate argued that “section 41-6-105 of the Code, which requires owners of cars to secure their vehicles when left unattended, creates a duty owed by the [owners] to [the decedent].” Id. We further identified the issue as follows:

Plaintiffs base their claim of a duty on the fact that section 41-6-105 of the Code imposes a duty on operators of motor vehicles to turn off the engine, lock the ignition, and remove the key when they leave the car unattended....

... The [owners] admit to violating section 41-6-105. Therefore, the question is whether we should view the requirement of section 41-6-105 as establishing a tort duty owed to any person who might be injured in an accident involving one who steals a car as a result of the statute’s violation.

Id. at 1162-63. We then proceeded to analyze the “circumstances under which it is appropriate for a court to adopt a statutory standard of conduct as that of a reasonable person and to impose a tort duty to act toward a person in accordance with that standard.” Id. at 1163. We concluded that the statute was not intended “to create a duty to the decedent to protect him from the harm which befell him” and therefore “section 41-6-105 imposes no duty on the [owners] that is actionable by [the estate].” Id. at 1164. As a result, we affirmed the trial court’s grant of summary judgment for the ear owners. Id.

The articulated issue, analysis, and holding in Rollins all indicate that we examined only the narrow question of “whether the legislative standard imposes a duty recognizable in tort as the standard of a reasonable person.” Id. at 1164 n. 4. We did not address whether a vehicle owner may, under certain circumstances, owe a common law duty to plaintiffs injured by the owner’s stolen vehicle. Therefore, Rollins does not govern the resolution of this ease.¹

To prevail on a negligence claim, a plaintiff must establish that the defendant owed the plaintiff a duty, that the defendant breached that duty, that the breach was the proximate cause of the plaintiffs injury, and that the plaintiff, in fact, suffered injuries or damages. Hunsaker v. State, 870 P.2d 893, 897 (Utah 1993). Most courts that have examined “key-in-ignition” eases have denied relief to the plaintiff by holding either that the car owner owed no duty to the victim injured by the thief, see, e.g., Lorang v. Heinz, 108 Ill.App.2d 451, 248 N.E.2d 785, 789 (1969); Flannery v. Sample Hart Motor Co., 194 Neb. 244, 231 N.W.2d 339, 342 (1975); Liney v. Chestnut Motors, Inc., 421 Pa. 26, 218 A.2d 336, 338 (1966), or that the theft constituted an unforeseeable, intervening criminal act that broke the chain of causation between the negligence of the car owner and the injuries of the plaintiff. See, e.g., J.C. Lewis Motor Co. v. Giles, 194 Ga. App. 472, 391 S.E.2d 19, 20 (1990); Kalberg v. Anderson Bros. Motor Co., 251 Minn. 458, 88 N.W.2d 197, 198 (1958); Pendrey v. Barnes, 18 Ohio St.3d 27, 479 N.E.2d 283, 284 (1985). See generally William H. Darme, Annotation, Liability of Motorist Who Left Key in Ignition For Damage or Injury Caused by Stranger Operating the Vehicle, 45 A.L.R.3d 787 (1972 & Supp.1995); 8 Am. Jur.2d Automobiles & Highway Traffic § 919 (1980).

One Utah case, Nellsch v. Westland Ford, Inc., 646 P.2d 736 (Utah 1982) (per curiam), echoes those decisions. In that case, “[t]he plaintiff sued the defendant for damages to her car allegedly caused when the latter negligently left the keys in a car placed on its used-car lot. Unknown persons stole [the] defendant’s car, ran it into the plaintiffs vehiele[,] and then fled the scene of the accident.” Id. at 737. In affirming the trial court’s grant of the defendant’s motion to dismiss, we held:

The generally accepted authorities deny recovery under such circumstances. One having a lawful right to the possession of property, such as an automobile, although negligent in leaving the keys therein, has no duty to respond in damages caused by a thief who takes it and runs into a third party’s vehicle. In all but the most unusual circumstances, there is no proximate cause between the negligence of the one having such right to possession and that of a thief whose negligent driving is an independent, intervening cause of the damage.

Id. (footnotes omitted) (emphasis added).

While Nellsch correctly identifies the general rules of law applicable to generic key-in-ignition eases, we do not believe that it precludes this action. Holding otherwise would apply the rules broadly to all cases without regard to specific circumstances. Significantly, in Nellsch there were no allegations of previous thefts, lax surveillance, or any other special factors which would increase the foreseeability of risk to others. In addition, the court in Nellsch acknowledged that although the plaintiff had not alleged sufficient circumstances, “most unusual circumstances” could arise which would render theft and subsequent negligent operation of the car foreseeable, subjecting the owner to liability. The Cruzes contend that this is just such a case.

Middlekauff relies on Rollins and Nellsch and urges us to hold that (1) it did not have a duty to the Cruzes and (2) the theft broke the chain of causation between its alleged negligence and the Cruzes’ injuries. The key to both of these issues is the foreseeability of the theft and the thief s subsequent negligent operation of the car resulting in injuries to the Cruzes. See Steffensen v. Smith’s Management Corp., 862 P.2d 1342, 1346 (Utah 1993) (foreseeability is required to establish both negligence and proximate cause).

A Middlekaujfs Duty to the Cruzes

Many jurisdictions have held that under “special” or “unusual” circumstances, a duty may exist where a defendant should reasonably anticipate that its conduct will create an unreasonably enhanced danger to one in the position of the injured plaintiff. If such danger is foreseeable, then a duty arises to exercise reasonable care for the safety of others. See David H. Friedland, Torts: Negligence: Car Owner Leaving Key in Vehicle Has a Duty to Third Person Injured by Thief, 12 UCLA L.Rev. 1260, 1261 (1965); Malan v. Lewis, 693 P.2d 661, 672 n. 15 (Utah 1984) (duty to exercise reasonable care toward safety of others is essential to physical security and safety of all persons in civilized society). Each case must be considered on its own facts to determine whether they result in a foreseeable risk of harm to third persons in the class of plaintiffs and thus create a duty to refrain from subjecting them to such risk. Palma v. U.S. Indus. Fasteners, Inc., 36 Cal.3d 171, 203 Cal.Rptr. 626, 635, 681 P.2d 893, 902 (1984); Hergenrether v. East, 61 Cal.2d 440, 39 Cal.Rptr. 4, 7, 393 P.2d 164, 167 (1964).

The “special circumstances” under which courts have permitted key-in-ignition actions to go forward have included (1) significant criminal activity in the area in which the vehicle was left, see, e.g., Palma, 203 Cal. Rptr. at 635, 681 P.2d at 902 (truck with open window in high-crime industrial area); Vining v. Avis Rent-A-Car Sys., Inc., 354 So.2d 54, 55 (Fla.1977) (rental car at Miami airport lot known as high crime area); Hill v. Yaskin, 75 N.J. 139, 380 A.2d 1107, 1108 (1977) (parking lot in high crime area); (2) prior thefts of the defendant’s vehicles, see, e.g., Enders v. Apcoa, Inc., 55 Cal.App.3d 897, 127 Cal.Rptr. 751, 755 (1976) (parking lot continued policy requiring patrons to leave keys in ignitions despite history of thefts); Vadala v. Henkels & McCoy, Inc., 397 A.2d 1381, 1383 (Del.Super.Ct.1979) (previous thefts from storage yard); Hill, 380 A.2d at 1108 (parking lot had history of thefts); (3) irresponsible or reckless nature of people frequenting the area, see, e.g., Palma, 203 Cal.Rptr. at 634, 681 P.2d at 901 (extremely high transient population); Hergenrether, 393 P.2d at 167 (truck left in “skid row5’ area known to attract drunken idlers); Richards v. Stanley, 43 Cal.2d 60, 66, 271 P.2d 23, 27 (1954) (potential liability for leaving car in front of school where children could be expected to tamper with it); (4) lack of surveillance of the vehicle, see, e.g., Murray v. Wright, 166 Cal.App.2d 589, 333 P.2d 111, 113 (1958) (used car lot unenclosed and unguarded, despite common knowledge of key-in-ignition policy); Vadala, 397 A.2d at 1383 (no security measures); (5) vehicle left for extended period of time, see, e.g., Palma, 203 Cal.Rptr. at 634, 681 P.2d at 901 (overnight); Hergenrether, 393 P.2d at 167 (overnight); and (6) type and size of vehicle uniquely attractive or capable of inflicting serious damages, see, e.g., Richardson v. Ham, 44 Cal.2d 772, 285 P.2d 269, 271 (1955) (bulldozer parked on top of mesa); Vadala, 397 A.2d at 1382 (dump truck). Other special circumstances include the vehicle’s access to public highways, its accessibility to the public, its operational condition, and the time of day or night the vehicle was taken. Alberone v. King, 26 Conn.Super. 98, 213 A.2d 534, 535 (1965); McClenahan v. Cooley, 806 S.W.2d 767, 776 (Tenn.1991).²

The Cruzes allege special circumstances that, if proved, may have made the theft of Middlekauffs car foreseeable, distinguishing this case from a traditional key-in-ignition ear theft. Obviously a vehicle is more likely to be stolen if it is unlocked and its key is in its ignition. However, the Cruzes point to other conditions that significantly increased the likelihood of the theft. These include the numerous prior thefts of Middlekauffs key-in-ignition cars,³ the public’s unlimited access to the cars, Middlekauffs management policy of leaving keys in the ignitions of cars parked for lengthy periods of time in a commercial area, the cars’ location permitting their unobstructed exit, and Middlekauffs lack of surveillance or security, even during evening hours. If these unusual circumstances can be proved, a fact finder could determine that the theft was foreseeable.

The foreseeability of the theft alone, however, does not create a duty by Middlekauff to the Cruzes. The duty arises only if it was also foreseeable that Middlekauffs thief-operated cars would be recklessly or negligently driven and cause injury and death to members of the public. The Cruzes allege that it was foreseeable “that a thief who took one of Middlekauf[f]’s cars would attempt to evade capture by fleeing a police officer at high speed, which would result in a serious accident to an innocent motorist.” Other courts have observed that thief-driven vehicles often collide with third parties, causing injury and death. See McClenahan, 806 S.W.2d at 776; Mary Dee Perkins, Tort Law — McClenahan v. Cooley: The Impact of Automobile Theft on Proximate Cause Issues, 21 Mem.St. U.L.Rev. 595, 597 (1991). A thief primarily concerned with avoiding detection and arrest may disregard traffic laws, endangering pedestrians and motorists alike. Also relevant in this case is the relatively short time — a few hours at most — between the theft of the car and the accident injuring the Cruzes. The Cruzes should be given the opportunity to produce evidence of the foreseeability of the thiefs negligent driving. We conclude that because the theft of the ear and its negligent operation may have been foreseeable, Middlekauff may have owed a duty to the Cruzes to take adequate precautions to prevent the theft of its cars.

B. Proximate Carnation

We next turn to whether the theft broke the chain of causation between Mid-dlekauffs alleged negligence and the Cruzes’ injuries. Proximate causation is generally a matter of fact to be determined by a jury. McCorvey v. Utah State Dep’t of Transp., 868 P.2d 41, 45 (Utah 1993); Godesky v. Provo City Carp., 690 P.2d 541, 544 (Utah 1984). To establish proximate cause, the Cruzes must prove that Middle-kauffs conduct was “a substantial causative factor” leading to their injuries. McCorvey, 868 P.2d at 45. An intervening, independent, and efficient cause ordinarily severs whatever connection there may be between the defendant’s negligence and the plaintiffs injuries, unless the intervening cause was foreseeable. Godesky, 690 P.2d at 544-45. Thus, the fact that the instrumentality which produced the Cruzes’ injuries was the criminal conduct of a third person “would not preclude a finding of proximate cause if the intervening agency was itself a foreseeable act.” Mitchell v. Pearson Enters., 697 P.2d 240, 246 (Utah 1985) (footnote omitted) (finding no direct evidence linking guest’s murder with hotel’s alleged inadequate security); see also Steffensen, 820 P.2d 482, 488 (Utah Ct.App.1991); Restatement (Second) of Torts § 302B (1965). In this case, the thiefs criminal acts, though intervening, do not preclude a finding of proximate cause if the acts were foreseeable. The alleged facts of this case, if proved, may have made the theft of the car and the thiefs subsequent negligent and injurious driving foreseeable.

III. CONCLUSION

A vehicle owner ordinarily is not liable to third parties injured by the negligent driving of a thief, even if the owner leaves the key in the vehicle’s ignition. However, this is allegedly not a typical key-in-ignition case. Special circumstances are alleged that, if true, may have put Middlekauff on notice that its cars were targeted by thieves; yet it continued its key-in-ignition policy and other loose practices. Once the ear was stolen, it may have been foreseeable that it would be operated in a manner hazardous to the public. Middlekauffs burden of securing the keys to its parked vehicles was slight, especially when compared to the severe damages which might — and here did — result from the theft of one of them.

We conclude that the trial court properly denied Middlekauffs rule 12(b)(6) motion to dismiss because under the alleged facts and the reasonable inferences therefrom, the complaint states a claim upon which relief can be granted.⁴

DURHAM, J., concurs in Justice HOWE’s opinion.

1 . Middlekauff notes that as a closing comment in Rollins, we explained that our holding "is in harmony with past cases of this court holding that mere ownership of an automobile does not render the owner liable for the negligent actions of the driver.” Rollins, 813 P.2d at 1164 (citing Wilcox v. Wunderlich, 73 Utah 1, 23-24, 272 P. 207, 223 (1928); McFarlane v. Winters, 47 Utah 598, 155 P. 437, 441 (1916) (both holding parents not liable for the negligent driving of their minor children)). We are not persuaded that this broad statement demonstrates that Rollins considered the existence of a common law duty.

2 . Cf. Avis Rent A Car Sys., Inc. v. Superior Court, 12 Cal.App.4th 221, 15 Cal.Rptr.2d 711, 719 (1993); Archer v. Sybert, 167 Cal.App.3d 722, 213 Cal.Rptr. 486, 491 (1985); Hosking v. Robles, 98 Cal.App.3d 98, 159 Cal.Rptr. 369, 373 (1979); Smith v. Shaffer, 395 N.W.2d 853, 856 (Iowa 1986); Elliott v. Mallory Elec. Corp., 571 P.2d 397, 401 (Nev.1977); Felty v. City of Lawton, 578 P.2d 757, 762 (Okla.1977) (all finding insufficient special circumstances to send cases to jury).

3 . In Dwiggins v. Morgan Jewelers, 811 P.2d 182, 183 (Utah 1991), we held that one prior robbery five years earlier was insufficient to make a subsequent robbery reasonably foreseeable. We contrasted the facts of Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46-49 (Colo.1987), wherein the Colorado Supreme Court held that ten prior armed robberies at the restaurant over a three-year period resulted in reasonably foreseeable harm to customers. Dwiggins, 811 P.2d at 183 n. 1. This case is more like Taco Bell than Dwiggins.

4 . In his dissent, Justice Russon characterizes this opinion as “imposing liability on Middlekauff.” Similarly, Chief Justice Zimmerman's concurring opinion states that this opinion allows all creatively pleaded cases "to get to a jury.” Both characterizations are inaccurate. Our conclusion is merely that the complaint is sufficient to survive a 12(b)(6) motion to dismiss and that the Cruzes should be given the opportunity to produce evidence of the foreseeability of the theft and the thief's negligent driving.