General Acc. Group v. Noonan

• Decision Date: 25 May 1971
• Citation: 321 N.Y.S.2d 483,66 Misc.2d 528
• Parties: GENERAL ACCIDENT GROUP, Plaintiff, v. Michael R. NOONAN et al., Defendants.
• Court: New York Supreme Court

Page 483

321 N.Y.S.2d 483

66 Misc.2d 528

GENERAL ACCIDENT GROUP, Plaintiff, v. Michael R. NOONAN et al., Defendants.

Supreme Court, Special Term, Nassau County, Part III.

May 25, 1971.

Rivkin, Leff & Sherman, Freeport, for plaintiff by Leonard Rivkin, freeport.

Joel H. Cohen, for defendant Noonan by Sheldon Sanders, Mineola.

Cordes, Purcell, Jewell & Ingrao, Mineola, for defendants Kirscheim and State Farm by Stephen Fritz, Mineola.

MEMORANDUM

BERTRAM HARNETT, Justice.

You leave your key in the ignition of your car standing in your own driveway. The car is stolen and becomes the cause of an accident. Are you liable?

It is perhaps surprising that this question has not been answered in New York in any reported decision. While some cases have touched on it, none address themselves directly to this seeming garden variety of legal question.

At first blush, one would wonder why a question of liability would exist. This traces to section 1210(a) of the Vehicle and Traffic Law which reads 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, provided, however, the provision for removing the key from the vehicle shall not require the removal of keys hidden from sight about the vehicle for convenience or emergency.' (emphasis added).

The pertinent statutory portion provides then that the owner of a car shall not permit it to stand unattended without removing the key from the ignition.

Strictly speaking, section 1210(a) is regulatory and punitive, and, under the statute, the penalty for its violation is a fine of not more than fifty dollars or fifteen days imprisonment or both. Vehicle and Traffic Law, § 1800(a), (b).

However, the statute contains the seed of two conceivable bases on which to predicate an owner's civil liability for a thief's auto accident. The first point is that by leaving the key in the car, the owner was negligent and, if his negligence is a proximate cause of the accident, then he may be liable. Secondly, the leaving of the key may constitute an implied consent to the operation of the car by the user, thus setting the stage for liability in the event of negligence by the user.

With respect to negligence, the courts have found that a violation of the statute is negligence at least in the creation of an opportunity for a thief to steal the car and may be the basis for liability on the part of the owner. Matter of Smith (MVAIC), 34 A.D.2d 629, 309 N.Y.S.2d 536; Padro v. Knobloch, 28 Misc.2d 898, 214 N.Y.S.2d 216. In Guaspari v. Gorsky, 36 A.D.2d 225, 319 N.Y.S.2d 708, the Appellate Division, Fourth Department, found that a violation of the 'key in the ignition' statute was actionable negligence which, combined with proximate causation, served as a basis for holding an owner liable. The Court specifically noted that the accident there was caused by the thief's negligence in operating the car. It ruled that an owner who violates the 'key in the ignition' statute is liable for negligent harm done by a thief in the operation of the stolen car. Cf. Small v. Tyres, 33 A.D.2d 1055, 308 N.Y.S.2d 730.

On the other hand, if it were assumed that a breach of the statute created an implied consent to operate the car, the liability of the owner would necessarily rest on the negligent operation of the car by the presumably permitted operator. Under Vehicle and Traffic Law § 388, the negligence of an operator with permission is attributable to the car owner. Therefore, in this case, there is little effective difference if the statutory breach is considered negligence by the owner or a constructively permitted use of the car. There is no case known which holds that a breach of section 1210(a) is a constructive permission to operate a car.

In this case, which involves a requested ruling as to an insurer's liability for coverage, the negligence of the operator is a matter to be reserved for later proof. The carrier's duty to defend would include the trial of the issue of the negligence of the thief operator which, in turn, would determine the liability, if any, of the insured statute-violating owner. See, Downey v. Merchants Mut. Ins. Co., 30 A.D.2d 171, 291 N.Y.S.2d 726, affd. 23 N.Y.2d 989, 298 N.Y.S.2d 998, 246 N.E.2d 757.

Accordingly, the basic question of the case is whether the conduct of the car owner was a violation of the 'key in the ignition' statute. The facts show that on the evening of June 20, 1970, Louis Kirscheim left his station wagon unattended in the driveway of his home on his own private property, about 30 feet off the public highway. The car was unlocked, the rear window was open and the key was in the ignition. Shortly after, during that night, the car was stolen by someone still unknown, and was involved in a collision with a car owned and operated by Michael Noonan. As a result of that accident, Mr. Noonan commenced a lawsuit against Mr. Kirscheim based in negligence.

State Farm Mutual Automobile Insurance Company (State Farm), which had issued an automobile insurance policy covering the Kirscheim vehicle, disclaimed coverage on the theory that the accident was occasioned solely by the operation of the vehicle by an unknown third party without permission of the owner. Noonan then filed a claim under the Uninsured Motorist endorsement of his own automobile policy issued by the General Accident Group (General). Subsequently, General Commenced this action against State Farm, Noonan and Kirscheim to determine the validity of the State Farm disclaimer.

The Vehicle and Traffic Law applies upon highways, and upon private roads open to public motor vehicle traffic. This is stated in section 1100(a), which goes on to create exceptions only where specifically refered to in a given secti...