Epstein v. Mediterranean Motors, Inc.

• Decision Date: 08 July 1985
• Citation: 491 N.Y.S.2d 391,109 A.D.2d 340
• Parties: , 70 A.L.R.4th 267 Lawrence EPSTEIN, et al., Respondents, v. MEDITERRANEAN MOTORS, INC., Appellant (and a second title).
• Court: New York Supreme Court — Appellate Division

Page 391

491 N.Y.S.2d 391

109 A.D.2d 340, 70 A.L.R.4th 267

Lawrence EPSTEIN, et al., Respondents, v. MEDITERRANEAN MOTORS, INC., Appellant (and a second title).

Supreme Court, Appellate Division Second Department.

July 8, 1985.

Alexander, Ash, Schwartz & Cohen, P.C., New York City (Sheldon Bunin, New York City, of counsel), for appellant.

Lipsig, Sullivan & Liapakis, P.C., New York City (Pamela Anagnos Liapakis and Stephen C. Glasser, New York City, of counsel), for respondents.

Before MANGANO, J.P., and BROWN, NIEHOFF and LAWRENCE, JJ.

NIEHOFF, Justice.

This is an exceptionally tragic case. On March 12, 1978, at approximately 12:30 P.M., plaintiff Rhonda Epstein, age seven, and her father, plaintiff Lawrence Epstein, were loading or unloading the trunk of the Epstein car on 21st Drive near 20th Lane, Brooklyn. Suddenly, a new, light-green Fiat owned by defendant sped into the block and struck them. The Fiat then struck the Epstein vehicle which in turn struck plaintiff Elizabeth Epstein, Lawrence's wife and Rhonda's mother. As a result of the accident, Rhonda became a spastic quadriplegic with brain damage. Lawrence was forced to undergo amputation of his left leg above the knee. Elizabeth suffered traumatic shock, soft tissue injury and traumatic neurosis.

The driver of the Fiat, 15-year-old Ciro Vuolo, and the passenger, 14-year-old Nick Forte, had stolen the vehicle from defendant. After the accident, Vuolo and Forte left the scene, but were apprehended, arrested and charged, inter alia, with burglary, reckless endangerment and unlawful operation of a motor vehicle. The pair have not been sued by plaintiffs.

Understandably plaintiffs would like to be able to look to a financially responsible defendant for monetary recompense. Not surprisingly, therefore, they have brought suit against the defendant owner of the stolen vehicle. The issue presented by the case may be summarized as follows:

May persons who sustain personal injury at the hands of a driver of an automobile which the driver stole from the car dealer owner maintain a cause of action against said owner on a theory of negligence based on a claim that the owner did not take sufficient measures to prevent the theft where the undisputed facts are that (1) the car was stolen from a locked storage garage, and (2) prior to the theft the keys to the car had been removed by the owner and placed in the showroom premises which was not broken into? In denying defendant's motion for summary judgment dismissing the complaint and holding that the case was one for a jury to decide, Special Term wrote, in part:

"This Court is not unmindful of the fact that generally in a stolen car situation the owner who has not given permission "This Court will not stand upon procedural formalities in attempting to resolve serious and unique problems between litigants (Mastey v. Mancusi, 122 Misc.2d 119 ). The questions to be determined here are: Was the defendant negligent in the maintenance of its storage facility? Was such negligence, if any, a proximate cause of the incident? Was it foreseeable? And was defendant's security of its facility reasonable under the circumstances herein? All of these triable issues will be part of plaintiff [sic ] burden of proof in a novel and unique theory of negligence when plaintiffs receive their day in court.

for the use of said vehicle is not held accountable as a result of any accidents or injuries resulting from the use of the stolen car; however, summary judgment, if granted is a harsh remedy which would not afford these plaintiffs their day in court.

"The case at bar may be analogous to a recent decision by the New York Court of Appeals (Strunk v. Zoltanski, [62 N.Y.2d 572, 479 N.Y.S.2d 175, 468 N.E.2d 13] Appeal No. 355, NYLJ, July 5, 1984, Page 1 Column 3) wherein the Court held that a landlord may be held responsible to a third party in a case where they found that the landlord failed to take protective action which might have prevented the particular occurrence. In that case a landlord was found to be liable to a youth who was bitten by a tenant's German shephard because, the Court found, the Landlord had knowledge of the dog's prior vicious behavior when he rented the premises to the tenant."

While we are truly sympathetic to plaintiffs' plight, on the facts of this case there is no basis under the present state of the law upon which to predicate a cause of action for negligence against the victim owner of the stolen vehicle. Therefore, the complaint must be dismissed.

THE FACTS

Defendant is a dealer of new and used Fiat automobiles. Its showroom is located at 86-99 18th Avenue, Brooklyn, which property is owned by defendant. In addition, it stored new and used automobiles at a leased indoor garage located at 86-81 18th Avenue, the same block as its showroom.

At approximately 2:30 P.M. on the day of the accident defendant's president was notified by the police that one of defendant's Fiats had been stolen and involved in a accident. Prior to the accident, the Fiat in question had been kept in the indoor garage.

The only means of access to the storage garage were two wooden garage doors located on the side of the building. One of the garage doors had a smaller door built into it to permit exit and entry, a sort of "door within a door". Both garage doors were locked from the inside, while the small "door within a door" was secured by a key-activated padlock on the outside. Defendant used the same padlock in 1978 as it had used when it first began leasing the premises in 1971. Once an individual entered the small "door within a door", he or she could open the garage doors by merely pulling poles/rods attached to chains and a spring. The storage garage was not protected by an alarm system. At the time of the accident, the retail value of each of the new Fiats stored in the garage area was between $5,000 and $7,000.

Upon arriving at the storage garage, the defendant's president, Ralph LaGamba, noticed that the garage door which contained the small "door within a door" was wide open, as was the small door itself. The doors were not damaged, but the padlock was missing and the "bracket was pulled". After taking an inventory, he determined that two new Fiats, including the one which had been involved in the accident, were missing. He proceeded to the showroom, and determined it had not been broken into. He then checked the closet where the keys to defendant's vehicles were stored, and determined that none of them was missing.

LaGamba later examined the green Fiat at the police station, where it had been

towed after the accident. According to LaGamba, "[i]t was a total loss". The front was badly damaged, and the ignition wires were cut. Moreover, "the car had a license plate that was stolen from another car that was a Mercedes". No keys were found in the car. According to LaGamba, both sets of defendant's keys to the car were still in the showroom closet.

ANALYSIS OF THE LAW

At common law the owner of a stolen vehicle was not liable, as a matter of law, for the negligence of a thief on the basis that the use of the car by the thief intervened between the occurrence of the negligence of the owner and the unskillful driving of the car by the thief (Podstupka v. Brannon, 54 A.D.2d 692, 387 N.Y.S.2d 544, lv. denied 42 N.Y.2d 803, 397 N.Y.S.2d 1027, 366 N.E.2d 884; Lotito v. Kyriacus, 272 App.Div. 635, 74 N.Y.S.2d 599, lv. dismissed 297 N.Y. 1027, 80 N.E.2d 542; Walter v. Bond, 267 App.Div. 779, 45 N.Y.S.2d 378, affd. 292 N.Y. 574, 54 N.E.2d 691; Mann v. Parshall, 229 App.Div. 366, 241 N.Y.S. 673).

An exception to this general rule of nonliability was created by Vehicle and Traffic Law § 1210(a), commonly referred to as the "key in the ignition statute". At the time of the events herein that statute read as follows: "No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the vehicle, and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highway".

Section 1210 is found under article 33 of title 7 of the Vehicle and Traffic Law. Vehicle and Traffic Law § 1100(a) provided at the time of the accident that the provisions of title 7 "apply upon highways and upon private roads open to public motor vehicle traffic except where a different place is specifically referred to in a given section".

Because the "key in the ignition" exception to the common-law rule of nonliability on the part of the owner of a stolen vehicle applied only where the vehicle was stolen from a highway or a private road open to public motor vehicle traffic the cases hold that no liability attaches to the owner where the stolen vehicle was left unattended with the key in the ignition on a parking lot or a private driveway (see, Podstupka v. Brannon, supra; Albouyeh v. County of Suffolk, 96 A.D.2d 543, 465 N.Y.S.2d 50, affd. 62 N.Y.2d 681, 476 N.Y.S.2d 522, 465 N.E.2d 29; Zwerdling v. Gillis, 99 A.D.2d 564, 470 N.Y.S.2d 952, appeal discontinued 62 N.Y.2d 804; General Accident Group v. Noonan, 66 Misc.2d 528, 321 N.Y.S.2d 483). ^* Accordingly, Vehicle and Traffic Law § 1210(a) as it read at the time of the events in issue has no application to this case because here the vehicle in question was stolen from a locked garage on private property. Indeed, ...