Tae Kim v. Budget Rent A Car Systems, Inc.

15 P.3d 1283, 143 Wash. 2d 190
CourtWashington Supreme Court
DecidedJanuary 25, 2001
DocketNo. 67352-7
StatusPublished
Cited by76 cases

This text of 15 P.3d 1283 (Tae Kim v. Budget Rent A Car Systems, Inc.) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tae Kim v. Budget Rent A Car Systems, Inc., 15 P.3d 1283, 143 Wash. 2d 190 (Wash. 2001).

Opinion

Madsen, J.

In this case we are asked to decide whether plaintiff Peter Kim may maintain a negligence action against Budget Rent A Car for injuries sustained by plaintiff after one of Budget’s vehicles, with the keys left in its [194]*194ignition, was stolen by a third party and used to commit a vehicular assault against plaintiff. The trial court dismissed this case on summary judgment. We accepted direct review, and affirm, holding that Budget did not owe a duty of care to plaintiff and that Budget’s negligence was not the proximate cause of plaintiff’s injuries.

FACTS

On the night of September 6, 1991, Demicus Young, an accomplished thief, went to Pacific Highway South in the city of Sea-Tac for the purpose of stealing a vehicle. Young trespassed onto Budget’s Seattle Region Administrative Facility parking lot, which is located off Sea-Tac airport property. No vehicles are rented from Budget’s administrative facility and it has no fences, barriers, lights, security personnel, or cameras. On Budget’s administrative parking lot Young found an unlocked Dodge minivan with the keys in its ignition and stole the vehicle. There is no evidence in the record that prior to Young’s theft a vehicle had ever been stolen from Budget’s administrative facility.

Young drove home and went to sleep. Then, the next day, he consumed alcohol and smoked marijuana. He then attempted to drive the minivan, and while pulling out of his driveway struck a telephone pole. Concerned observers contacted the police to report Young’s suspicious behavior. When Young saw the police, he attempted to speed away, believing the police were pursuing him. He then ran a stop sign and caused the accident severely injuring plaintiff.

Plaintiff filed suit against Young and Budget. The trial court granted Budget’s motion for summary judgment. Plaintiff petitioned this court for direct review, which we granted.

ANALYSIS

I

“It is an elementary principle that an indispensable factor to liability founded upon negligence is the [195]*195existence of a duty of care owed by the alleged wrongdoer to the person injured . . . .” Routh v. Quinn, 20 Cal. 2d 488, 491, 127 P.2d 1, 3 (1942); see also Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998). The existence of duty is a question of law. Folsom, 135 Wn.2d at 671 (citing Pedroza v. Bryant, 101 Wn.2d 226, 228, 677 P.2d 166 (1984)). Plaintiff asks us to hold that Budget owed a duty of care to plaintiff to prevent Young from stealing its vehicle and committing a vehicular assault. Under the facts of this case, we are unwilling to do so.

Plaintiff contends that “Washington courts recognize that defendants have a duty to protect against the criminal acts of third persons where the defendant’s action or omission involves an unreasonable risk of harm to the plaintiff via the conduct of the tort-feasor.” Pl. Br. at 35. This is an overly broad statement of our prior cases.

“ The general rule at common law is that a private person does not have a duty to protect others from the criminal acts of third parties.’ ” Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 199, 943 P.2d 286 (1997) (quoting Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 223, 802 P.2d 1360 (1991)). This is an expression of the policy that “one is normally allowed to proceed on the basis that others will obey the law.” Hutchins, 116 Wn.2d at 236. In a case factually similar to the case at bar, Justice Traynor noted

[i]n one sense the problem presented involves the duty of the owner of an automobile so to manage it as not to create an unreasonable risk of harm to others. It bears emphasis, however, that when [the defendant] left the car it was in a position where it could harm no one, an[d] no harm occurred until it had been taken by a thief. Thus a duty to prevent such harm would involve more than just the duty to control the car, it would involve a duty to prevent action of a third person. Ordinarily, however, in the absence of a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing harm to another.

[196]*196Richards v. Stanley, 43 Cal. 2d 60, 65, 271 P.2d 23, 27 (1954).

Plaintiff asks us to depart from this general rule, relying in part on the Restatement (Second) of Torts § 302B (1965), which states:

An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.

This section does not support imposition of a duty in this case. As comment e to the section explains, a duty to guard against third party conduct may exist where there is a special relationship to the one suffering the harm, or “where the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable [person] would take into account.” Restatement (Second) of Torts § 302B cmt. e (1965) (emphasis added). This does not mean that any risk of harm gives rise to a duty. Instead, an unusual risk of harm, a “high degree of risk of harm,” is required. Id. There is nothing in the facts of this case indicating that a high degree of risk of harm to plaintiff was created by Budget’s conduct of leaving the keys in the ignition of an automobile in an area where Budget had never had a prior vehicle theft.

Our case law does not support imposition of a duty either. Generally, our cases, involving a duty to protect a party from the criminal conduct of another, have fallen into one of two categories. We have found a duty where there is a “special relationship” with the victim. See, e.g., Nivens, 133 Wn.2d 192 (business to business invitee); Niece v. Elmview Group Home, 131 Wn.2d 39, 929 P.2d 420 (1997) (party entrusted with the care of a dependent); Gurren v. Casperson, 147 Wash. 257, 265 P. 472 (1928) (innkeeper to guest). And second, we have imposed a duty where there is a “special relationship” with the criminal. See, e.g., Hertog v. City of Seattle, 138 Wn.2d 265, 979 P.2d 400 (1999) [197]*197(state-probationer); Petersen v. State, 100 Wn.2d 421, 671 P.2d 230 (1983) (psychotherapist-patient); Bernethy v. Walt Failor’s, Inc., 97 Wn.2d 929, 934, 653 P.2d 280 (1982) (customer-store owner).

For instance, in Hutchins we held that a landowner was not liable for a trespasser’s perpetration of a criminal act against a noninvitee on the owner’s land. Hutchins, 116 Wn.2d at 226.

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Bluebook (online)
15 P.3d 1283, 143 Wash. 2d 190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tae-kim-v-budget-rent-a-car-systems-inc-wash-2001.