Flannery v. Sample Hart Motor Co., 39880
| Decision Date | 03 July 1975 |
| Docket Number | No. 39880,39880 |
| Citation | 231 N.W.2d 339,194 Neb. 244 |
| Parties | Jacquelyn FLANNERY, Appellant, v. SAMPLE HART MOTOR COMPANY, a Nebraska Corporation, et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. An ordinance proscribing leaving a motor vehicle on any street unattended without locking the ignition and removing the key is not applicable where the vehicle is left on private property.
2. In the absence of an applicable statute or ordinance, a motorist or bailee having control of a motor vehicle who leaves the vehicle unattended on private property without locking the ignition and removing the key is not liable to a third person when the vehicle is taken by a thief or other unauthorized person who drives it negligently and causes personal injury and property damage to such third person.
3. In the absence of applicable statutes or ordinances, the failure of a person having charge of a motor vehicle to remove the ignition key does not constitute a negligent omission or the breach of a duty owed to a third person in the position of the plaintiff here.
Thomas R. Wolff, Omaha, for appellant.
Michael A. Fortune, Erickson, Sederstrom, Johnson & Fortune, Omaha, for appellees.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.
The plaintiff, Jacquelyn Flannery, brought this action for personal injuries sustained in an automobile accident which was caused by the negligence of the unidentified driver of an automobile stolen from the repair lot of the defendant, Sample Hart Motor Company. At the conclusion of the testimony, the District Court sustained defendant's motion for directed verdict, and plaintiff has appealed.
In the early part of February 1971, a Ford automobile owned by Carl Anderson was involved in an accident. The right front wheel was bent in under the car at a 20 to 30 degree angle and there was substantial other damage. The car was not in condition to be driven. It was towed to Anderson's home. On February 16, 1971, Anderson employed Neff Towing Service, Inc., to pick up the car and tow it in for repairs. On February 17, 1971, Neff Towing Service, Inc., towed the car to the Sample Hart garage and placed the car on the open repair lot. The driver for Neff Towing Service, Inc., unhooked the car from the tow truck, removed the key, and locked the car. It was then 5:30 p.m., after business hours. The driver made out the tow ticket and placed the ticket and the key in an envelope and deposited the envelope in a drop box provided for that purpose in the side door of the Sample Hart building. At some time between 5:30 p.m. February 17th and 2 p.m. February 20, 1971, the automobile was stolen.
On February 20, 1971, at approximately 2 p.m., the plaintiff was a passenger in a car being driven by her husband on Florence Boulevard in Omaha, Nebraska. A car occupied by two unidentified negro males, approximately 14 or 15 years of age, struck plaintiff's car in attempting to pass. The other car went on down the street in an erratic fashion until it struck a stop sign. The driver and the passenger jumped out and ran. They were never located or identified. The car was the Anderson car, which had been stolen from the Sample Hart repair lot. Plaintiff's husband testified that the keys were in the ignition of the car but he did not remember whether there were two keys or a key and a tag. Plaintiff's injuries were sustained in the hit-run accident.
The plaintiff filed this action against Sample Hart Motor Company; Neff Towing Service, Inc.; Carl Anderson, the owner of the car; and Allstate Insurance Company, the owner's insurance carrier. Demurrers of the owner and his insurance carrier were sustained before trial. Motion to dismiss by Neff Towing Service, Inc., was sustained at the conclusion of plaintiff's evidence, and motion to dismiss by Sample Hart Motor Company was sustained at the conclusion of all the evidence. Plaintiff has appealed.
The plaintiff's cause of action rests on the allegation that Sample Hart was negligent as to the plaintiff in leaving the keys of the Anderson car in the ignition while the car was...
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