909 P.2d 1252 (Utah 1996), 940399, Cruz v. Middlekauff Lincoln-Mercury, Inc.

Docket Nº:940399.
Citation:909 P.2d 1252
Opinion Judge:HOWE, Justice:
Party Name:Francisco Javier CRUZ and Melody Cruz, Plaintiffs and Appellants, v. MIDDLEKAUFF LINCOLN-MERCURY, INC., a Delaware corporation, Defendant and Appellee.
Attorney:Robert B. Sykes, Matthew H. Raty, Salt Lake City, for plaintiffs and appellants. Aaron Alma Nelson, Clifford J. Payne, Salt Lake City, for defendant and appellee.
Case Date:January 10, 1996
Court:Supreme Court of Utah

Page 1252

909 P.2d 1252 (Utah 1996)

Francisco Javier CRUZ and Melody Cruz, Plaintiffs and Appellants,


MIDDLEKAUFF LINCOLN-MERCURY, INC., a Delaware corporation,

Defendant and Appellee.

No. 940399.

Supreme Court of Utah.

January 10, 1996

Page 1253

Robert B. Sykes, Matthew H. Raty, Salt Lake City, for plaintiffs and appellants.

Aaron Alma Nelson, Clifford J. Payne, Salt Lake City, for defendant and appellee.

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.

  1. FACTS

    Middlekauff is a car 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 Middlekauff 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 cars 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 Middlekauff's petition for interlocutory appeal.


    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.

    Page 1254

    In Rollins, an escapee of a mental hospital found an unattended car 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 car 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 case. 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 plaintiff's 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" cases 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. Danne, 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).

    Page 1255

    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 plaintiff's vehicle[,] 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 cases, 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...

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