Felty v. City of Lawton, 50151

• Decision Date: 31 May 1977
• Docket Number: No. 50151,50151
• Citation: 1977 OK 109,578 P.2d 757
• Parties: Jennifer Ann FELTY, Deceased, by Michael C. Felty, and Deborah Sue Felty, natural father and mother and next friend, and Michael C. Felty, Individually, Appellants, v. The CITY OF LAWTON, Oklahoma, a Municipal Corporation, and Leon G. Burks, Appellees.
• Court: Oklahoma Supreme Court

Page 757

578 P.2d 757

Jennifer Ann FELTY, Deceased, by Michael C. Felty, and Deborah Sue Felty, natural father and mother and next friend, and Michael C. Felty Individually, Appellants, v. The CITY OF LAWTON, Oklahoma, a Municipal Corporation, and Leon G. Burks, Appellees.

No. 50151.

Supreme Court of Oklahoma.

May 31, 1977.

As Corrected on Denial of Rehearing May 15, 1978.

Appeal from the District Court of Comanche County; Jack Brock, Trial Judge.

This opinion involves an appeal seeking review of an order of the trial court which sustained a demurrer to the petition for failure to state a cause of action. The essence of the allegations plead against the defendants were that the defendants left a marked police patrol car on an open highway with the keys in the ignition and the motor running, in violation of statute, and that leaving the patrol car unattended in such a manner was the proximate cause of bodily injury which occurred when the thief who took the car negligently operated it causing an automobile collision.

In analyzing the law and facts before us, we find that the leaving of a patrol car on a public street, unattended, with the keys in the ignition and the motor running, merely created a condition and was not the proximate cause of the injuries alleged. Additionally, we find that no special circumstances were plead which would give rise to a special duty to prevent the acts of third persons. Thus, we hold that the petition before us did not state a cause of action, for (1) no duty existed, and (2) the acts alleged did not constitute the proximate cause of the injuries alleged. As the absence of either element duty or causation made the petition demurrable, we affirm the order of the trial Judge who sustained the demurrer to the petition. AFFIRMED.

Burton & Hamlin, by Joe W. Hamlin, Lawton, for appellants.

Jack Atkinson, Lawton City Atty., and Walker, Jackman & Livingston, by J. Warren Jackman, Tulsa, for appellees.

DAVISON, Justice:

Appellants, plaintiffs below, brought an action for wrongful death and damages in the District Court of Comanche County against the City of Lawton and a Lawton police officer, Leon G. Burks, alleging that the negligence of Officer Burks, while acting as an agent of the City, was the proximate cause of the death of their daughter, Jennifer Ann Felty, in an automobile accident. Both the City's negligence and Officer Burks' negligence is based upon Officer Burks having left his marked police cruiser unattended with the keys in the ignition and with its motor running, which allegedly enabled one Ricky Lynn Overstreet to steal the police car and in driving that vehicle in a reckless and careless manner, cause the injury and ultimate death of the appellants' daughter.

The defendants filed a general demurrer to the petition, which was sustained. It is from the order sustaining the demurrer that the appellants appeal.

There is no dispute that the appellants plead sufficient facts to show jurisdiction, venue, standing, damage, negligence on the part of Officer Burks and negligence on the part of the alleged car thief, Ricky L. Overstreet. The question presented is whether the facts alleged in the petition are sufficient to constitute an act of negligence on the part of the defendant which would constitute the proximate cause of the plaintiff's injury. The allegations in appellants' petition alleging negligence on the part of the defendants are as follows:

"That on May 4, 1976, in the City of Lawton, Comanche County, State of Oklahoma, the defendant, Leon G. Burks, was on duty as a police officer for the City of Lawton; that between the hours of 3:30 and 4:00 P.M. on said day, the defendant, Leon G. Burks, pursuant to his said employment aforesaid and in furtherance of the interests of the defendant, City of Lawton, responded to an 'attempted arson' call at 526 Southwest 'G' Avenue; that the defendant, Leon G. Burks, upon arriving at said location, stopped his police cruiser, a 1976 Plymouth police car equipped with red and blue lights, sirens and bright distinctive markings, on a public highway, to-wit: 526 Southwest 'G' Avenue; that upon his departure from said police car, the defendant, Leon G. Burks, failed to remove the ignition keys from said automobile and failed to turn the motor of said automobile off; the defendant, Leon G. Burks, thus left said police cruiser unlocked, unguarded, exposed and out of his view; that the defendant, Leon G. Burks, while in the residence at 526 Southwest 'G' Avenue, first became aware that his police cruiser was missing when alerted by Fire Marshal Ray Catlin, who had also come to investigate the 'attempted arson'; that during the time said vehicle was negligently left unattended, it was taken without authorization or consent by Ricky L. Overstreet, who left the area of 5th and Southwest 'G' Avenue at approximately 4:05 P.M.; that your plaintiffs have no knowledge of the route Ricky L. Overstreet drove while said automobile was in his possession, but that at approximately 5:00 P.M., the stolen police cruiser driven by Ricky L. Overstreet was seen heading South on U.S. Highway 277 just North of the intersection of Rogers Lane and U.S. Highway 277 at approximately 100 miles per hour; that after passing through said intersection, said vehicle proceeding southerly, Ricky L. Overstreet negligently, carelessly and wantonly lost control of said stolen police cruiser whereupon said vehicle struck a concrete abutment on the West shoulder of U.S. Highway 277, careened across the southerly lanes of traffic some 280 feet, crossed the 90 foot grassy center median, 'bottomed out' and went airborne nearly 65 feet as it diagonally crossed the northerly lanes of traffic on U.S. Highway 277 and thereupon collided, head-on, with a vehicle being driven northerly by Ruby A. Dudark, deceased; that plaintiffs' intestate was riding in the front seat of said north bound automobile and was pinned in the wreckage; that after a substantial length of time, plaintiffs' intestate was removed from said wreckage and was then taken by ambulance, still alive, to the Comanche County Memorial Hospital where after attempts to save Jennifer Ann Felty, she was pronounced dead.

"That the defendants were negligent in that:

(a) the defendant, Leon G. Burks, while investigating the incident aforesaid at approximately 3:30-4:00 o'clock P.M., stopped his said police cruiser on a public highway, i. e. 526 Southwest 'G' Avenue in Lawton, Comanche County, Oklahoma;

(b) that thereupon the defendant, Leon G. Burks, negligently and carelessly left the ignition keys in said ignition of the automobile, with the door unlocked; that said automobile was therefore left unguarded and exposed in an area heavily traveled by pedestrians and the motoring public, the defendant, Leon G. Burks, knowing that such exposure created extreme risks;

(c) that the defendant, Leon G. Burks, was negligent in failing to turn off the motor of said automobile upon his departure therefrom in violation of 47 Oklahoma Statutes Annotated, Section 11-1101, which provides as follows:

'The person driving or in charge of a motor vehicle shall not permit it to stand unattended without first stopping the engine, and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highway.'

and in violation of a valid existing ordinance of the City of Lawton, Oklahoma, said being Article 15, Section 20-142, as follows:

'Brakes: motor not to be left running; animals

Adequate brakes shall be set on all parked vehicles. No driver of a motor vehicle shall leave any vehicle with the motor running while parked. Animals left or parked on the streets shall be securely hitched.'

and, further, in violation of Lawton Police Department's Rules and Regulations, Chapter 111, Section 362(A), as follows:

'Members of the Department, when driving vehicles of any description, private or of the City, shall not violate the traffic laws except in cases of absolute emergency, and then only in conformity with the law or order regarding the same. They shall set a good example for other persons in the operation of their vehicle.'

and Section 364(C) as follows:

'When operating any City vehicle the provisions of State Laws, Section 11-101, shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.'

That the above acts are in violation of the Statutes of the State of Oklahoma, and the Ordinances of the City of Lawton, Oklahoma, and are negligence per se.

"Further, that the defendant, Leon G. Burks, was negligent and careless by failing to lock said automobile upon his departure therefrom and removing the ignition keys thereby drastically and assuredly enhancing the likelihood of personal injury to others; that the defendants, Leon G. Burks and City of Lawton, knew, or should have known, that failure to remove ignition keys from an automobile markedly increased the probability of said automobile being stolen; that the defendant, Leon G. Burks, and defendant, City of Lawton, knew, or should have known, that stolen automobiles result in personal injury to other motorists some 200 times more often as non-stolen automobiles.

"That said resultant theft and wrongful death to plaintiffs' intestate was foreseeable; that such theft and resultant...