Dix v. Motor Market, Inc., 36978

• Decision Date: 13 July 1976
• Docket Number: No. 36978,36978
• Parties: Linda Sue DIX, etc., et al., Plaintiffs-Appellants, v. MOTOR MARKET INC., a corp., et al., Defendants-Respondents. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 927

540 S.W.2d 927

Linda Sue DIX, etc., et al., Plaintiffs-Appellants, v. MOTOR MARKET INC., a corp., et al., Defendants-Respondents.

No. 36978.

Missouri Court of Appeals, St. Louis District, Division Two.

July 13, 1976.

Motion for Rehearing or Transfer Denied Aug. 18, 1976.

Application to Transfer Denied Oct. 12, 1976.

Arthur H. Slonim, St. Louis, for plaintiffs-appellants.

Evans & Dixon and Ralph C. Kleinschmidt, A. G. Holtkamp, Holtkamp & Beckemeier, E. Thomas Liese, St. Louis, for defendants-respondents.

DOWD, Judge.

An auto is stolen from a parking garage where the keys were left in the ignition, and the thief being chased by the police collided with an auto operated by plaintiffs' decedent. Plaintiffs sue the person leaving the auto in the parking garage, his employer, and the operator of the parking garage.

Plaintiffs appeal the trial court's dismissal of their wrongful death petition for failure to state a claim upon which relief may be granted. We affirm.

In considering the sufficiency of a petition on a motion to dismiss, we give the averments a liberal construction and accord the petition those reasonable inferences fairly deducible from the facts stated. Scheibel v. Hillis, 531 S.W.2d 285, 289 (Mo. Banc 1976).

The petition alleges the following: On August 10, 1973, defendant Thomas Kletzker, an employee of defendant Central Apex Engraving Co., parked a 1973, Cadillac in defendant Motor Market's parking garage. Kletzker left the keys in the ignition, failed to lock the auto doors, and left the auto in an open, exposed and readily accessible place.

The petition further alleges that both Kletzker and Motor Market should have known that the theft of the Cadillac was a realizable likelihood. Kletzker knew or should have known--and Motor Market did know--that other autos had recently and frequently been stolen from the parking garage and from the vicinity.

Motor Market is charged with negligently and carelessly (1) failing to warn its customers to remove the keys from the ignition and to lock the doors of the auto; (2) failing to remove the auto keys from the Cadillac's ignition; (3) parking or permitting the parking of the auto in an open, exposed, and readily accessible place; and (4) failing otherwise to provide reasonable safeguards against the theft of the Cadillac.

It is further alleged that defendants knew or should have known that because of their negligence a thief or an unauthorized person would take the auto and operate it in an unlawful, negligent, and careless manner, by fleeing from pursuing law officers and thus endanger other motorists.

Plaintiffs are the widow and four children of the decedent, who was killed on August 11, 1973, when the auto he was driving was struck by the stolen Cadillac negligently driven by a thief. The thief, who had stolen the Cadillac the day before from Motor Market's garage, was fleeing from the police when the accident occurred. It is alleged that the decedent's death was the direct and proximate result of the carelessness, negligence, and recklessness of the defendants.

The defendants moved to dismiss the petition. Defendant Kletzker filed an affidavit in support of his motion to dismiss. In the affidavit Kletzker admitted parking the car at the garage, but he stated he was required to leave the keys with Motor Market's agent as a condition precedent to the agreement between he and Motor Market, whereby Kletzker promised to pay money for the privilege of parking his auto in Motor Market's garage.

The trial court dismissed the petition for failure to state a claim upon which relief may be granted.

The issue in this case is whether a motorist who left the keys in the ignition of his parked auto, and a parking garage proprietor who neglected both to remove the keys from the auto's ignition and to otherwise safeguard against auto thefts, can be liable for a death caused by a thief who stole the car and negligently operated it when the defendants knew or should have known of recent auto thefts from the garage and the vicinity. This subject has been exhaustively annotated at 45 A.L.R.3d 787 (1972). ¹

The only Missouri case relative to the issue here is Gower v. Lamb, 282 S.W.2d 867 (Mo.App.1955). ² In that case the defendant parked his car on a St. Louis street with the key in the ignition. A thief stole the car and drove it a block before colliding with and causing damage to the plaintiff's parked auto. The trial court sustained defendant's motion for judgment and on an agreed stipulation of facts.

The plaintiff relied chiefly on the fact that defendant had violated Section 304.150 RSMo 1949, ³ and contended that the violation constituted negligence per se. The court found this theory untenable because of the exclusionary clause contained at the very end of the statute.

But the Gower court also treated the case as an attempt to plead and prove common law negligence. Relying principally on the language contained in Zuber v. Clarkson Construction Co., 363 Mo. 352, 261 S.W.2d 52 (Mo.1952), ⁴ the court affirmed the trial court's ruling and concluded (at 871--72);

'In the case at bar the defendant's car was not placed in operation by a curious intermeddler, but by a thief. While under certain circumstances even this intervening act might be expectable . . . yet the criminal nature of the act certainly lessens its realizable likelihood and requires that the evidence of foreseeability of the theft be clear and convincing. Following the holding in the Zuber case, we believe that the defendant was under no duty to discover the presence of a thief or thieves in the vicinity where he parked his car, and that there was no fact stipulated which pointed to actual knowledge by defendant of the presence of a thief or thieves in the vicinity. We hold that as a matter of law plaintiff failed to adduce sufficient evidence of negligence or of proximate causation to make a submissible case.'

The Court in Gower concluded that plaintiff had not proved the foreseeability of the theft. Thus, the court did not specifically reach the issue here of whether, under common law negligence, plaintiffs state a claim upon which relief can be granted by alleging facts as to foreseeability of the theft and the foreseeability that the thief would operate the stolen auto negligently.

Likewise, it is interesting to note that the legislature by Section 304.150 made it a misdemeanor to leave keys in a motor vehicle unattended on a highway but provided that a violation of this statute could not be used in any way in any civil action. This clearly shows that it was the legislative intent to prevent thefts but not make it a basis for any civil action predicated on a violation of this statute. Said another way, the legislature saw fit not to make a violation of this statute negligence per se.

Circumstances similar to those of our case have long troubled courts throughout the nation. See the many cases included at 45 A.L.R.3d 787 (1972). A clear majority of the jurisdictions have decided that it was not reasonably foreseeable that an intermeddler would both take the auto and then negligently operate it. No liability was found in these cases even though there sometimes was an ordinance or statute prohibiting leaving an unlocked car on a public way with the key in the ignition or with an open ignition switch. Some of these cases found no duty of the car owner to the injured plaintiff, while others found as a matter of law no proximate cause. Some courts combined both the duty and proximate cause concepts to find no liability. See, e.g., Hill v. Yaskin, 138 N.J.Super. 264, 350 A.2d 514 (App.Div.1976); Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23 (banc 1954).

But a minority of jurisdictions have held that these circumstances present at least jury questions as to duty, negligence and proximate cause. See, e.g., ZINCK V. WHELAN, 120 N.J.SUPER. 432, 294 A.2D 727 (APP.DIV.1972)⁵; Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (banc 1970). These courts have utilized developing crime statistics pertaining to auto thefts and accidents involving stolen cars.

The defendants contend that the trial court in this case correctly held as a matter of law that the petition failed to state a claim upon which relief may be granted. Defendants on appeal urge (1) defendants were under no duty to protect plaintiff from the unforeseeable actions of a thief; (2) the defendants could not reasonably have foreseen the thief's negligent operation of the stolen auto; and (3) the thief's subsequent negligent operation of the car was the independent intervening cause of plaintiff's injury. We agree with defendants.

These concepts of duty, negligence, proximate cause and independent intervening cause all depend essentially on the issue whether it was reasonably foreseeable on the part of the defendants that an auto with the keys in the ignition would be stolen and operated negligently by a thief. Having reviewed the contents of the petition, plus the applicable case law both in Missouri and other jurisdictions, we have concluded that the trial court correctly dismissed the petition for failure to state a claim upon which relief may be granted.

Three elements are necessary for a case of actionable negligence: (1) there must exist a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) the defendant must fail to perform that duty; and (3) the injury to the plaintiff must proximately result from such failure. Nichols v. Blake, 418 S.W.2d 188(5) (Mo.1967). If a reasonable man could not find that under the circumstances all three elements are present, then the trial court correctly dismissed the petition for failure to state a claim upon which relief may be granted.

The element with which we are here concerned is the scope of the duty owed by the defendants. Before an act is said to be negligent, there must exist a duty to the individual complaining, the...