Guaspari v. Gorsky

• Decision Date: 08 April 1971
• Parties: Richard GUASPARI, as Administrator of the Goods, Chattels and Credits of Yolanda Guaspari, Deceased, Respondent, v. Chester M. GORSKY, a/k/a Chester M. Gorski, Appellant. Karen GUASPARI, an Infant, by Richard Guaspari, Her Father and Natural Guardian, Respondent, v. Chester M. GORSKY, a/k/a Chester M. Gorski, Appellant. Richard GUASPARI, Respondent, v. Chester M. GORSKY, a/k/a Chester M. Gorski, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 708

319 N.Y.S.2d 708

36 A.D.2d 225

Richard GUASPARI, as Administrator of the Goods, Chattels and Credits of Yolanda Guaspari, Deceased, Respondent, v. Chester M. GORSKY, a/k/a Chester M. Gorski, Appellant.

Karen GUASPARI, an Infant, by Richard Guaspari, Her Father and Natural Guardian, Respondent, v. Chester M. GORSKY, a/k/a Chester M. Gorski, Appellant.

Richard GUASPARI, Respondent, v. Chester M. GORSKY, a/k/a Chester M. Gorski, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Argued Feb. 9, 1971.

Decided April 8, 1971.

[36 A.D.2d 226] Donald L. Schoenwald, Syracuse, for appellant in each action.

Griffith & Pileckas, Rome, for respondent in each action (Paul L. Pileckas, Rome, of counsel).

Before DEL VECCHIO, J.P., and MARSH, GABRIELLI, MOULE, and HENRY, JJ.

OPINION

DEL VECCHIO, Justice Presiding.

This is an appeal by defendant in three actions from judgments for personal injuries, medical expenses, property damages, and wrongful death.

The actions arose out of an accident which occurred when an automobile owned by defendant Gorsky and operated by a thief, Donald Smith, collided with an automobile operated by plaintiff Richard Guaspari in which his wife and infant daughter were passengers. No question is raised concerning Smith's negligence in causing the accident. The actions against Gorsky were based upon his failure to comply with the provision of Vehicle and Traffic Law § 1210(a), which states: '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 * * *.'

Plaintiffs, having recovered judgments, are entitled to the most favorable view of the evidence, including reasonable inferences which may Both dissenting justices would reverse and grant a new trial upon the ground that the jury's finding that defendant left his keys in the ignition is against the weight of the evidence. One of them gives two additional grounds for reversal: (1) that the finding that violation of § 1210(a) was a proximate cause of the accident is also against the weight of the evidence, and (2) that the court erroneously charged that if defendant violated the provision of § 1210 such violation would constitute negligence.

be drawn therefrom. (Owen v. Rochester-Penfield Bus Co., 304 N.Y. 457, 108 N.E.2d 606.)

With regard to the keys in the ignition, defendant testified that on June 28, 1969 between 10:00 and 10:30 p.m. he attended a V.F.W. field day event, parked his car adjacent to the fire barn, removed his keys from the ignition and continued to the field; his keys 'were on a ring, chain affair, linked'; about one month previously he had put into the glove compartment another set of keys belonging to his daughter, which were attached to a blue leather case. He also testified that his daughter's keys had been delivered to him by Mastrangelo, his friend and former neighbor who he said did not see him put the keys in the glove compartment. According to the version testified to by Mastrangelo, defendant's lifelong very good friend, he did see defendant put the keys in the glove compartment and that the alleged incident of delivery occurred about one week before the accident.

The thief Smith, age 17, testified that he and other boys hitchhiked and attended the field day event that evening, and at about 11:30 p.m. he and one of the other boys, age 16, discussed taking a car; that they went looking for one with keys in the ignition; that he looked into one or two cars before he found defendant's car with the keys in it and drove away. On direct examination he testified: 'Q. All right now, where were the keys? A. I think they were in the ignition. Q. The keys were in the ignition? A. I think so. Q. What were you looking for when you were looking into these other cars? A. We were looking for, if the keys were in the ignition. Q. You were looking for the keys in the ignition? A. Yes. Q. Your best judgment is that the keys of the Gorski (sic) car were in the ignition? A. Yes.' On cross-examination: 'Q. What did they look like? Was it a single key or several keys? A. I think there was a couple other keys on it. Q. On a ring or string or what? A. Ring. Q. Key ring? A. Yes.'

The court charged that if the jury found as a fact that the keys were in the glove compartment Gorsky did not violate the statute and there would be no recovery, but if they found as a fact that the keys were in the ignition, then Gorsky violated the statute and, further, that such violation constituted negligence on his part, but before they could find liability Though the evidence was conflicting, its resolution was within the province of the jury. Only the jury is endowed with the right to pass on conflicting evidence, as well as credibility of witnesses. (Swensson v. New York, Albany Despatch Co., 309 N.Y. 497, 505, 131 N.E.2d 902, 906.) It may not be said that the evidence on that issue preponderates so greatly in favor of defendant that a jury could not have reached the finding on any fair interpretation of the evidence. (Rapant v. Ogsbury, 279 App.Div. 298, 109 N.Y.S.2d 737.) In our opinion, the evidence was sufficient to support the finding that the keys had been left in the ignition switch.

against Gorsky by reason of violation of this statute, they must also find that the violation of the statute was the proximate cause of the damages.

With regard to the proximate cause of the accident, defendant argues that there was no proximate cause shown between the violation of § 1210(a) and the damages.

It is undisputed that the damages were sustained as a result of Smith's negligent use of defendant's stolen car. At common law the owner 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. (Lotito v. Kyriacus, 272 App.Div. 635, 74 N.Y.S.2d 599, mot. for lv. to app. dism. 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.)

In recommending the enactment of what is now § 1210(a) of the Vehicle and Traffic Law, the Joint Legislative Committee on Motor Vehicle Problems pointed to the lack of a statutory duty to lock the ignition and remove the ignition key when leaving a vehicle unattended. The proposed law included such a requirement, 'designed to obviate the risk of a vehicle moving from the place where it was left parked and possibly injuring the person and property of others as well as itself being damaged. It serves to lessen the likelihood of theft.' (N.Y. Leg.Doc. 1954 No. 36, pp. 106--107.)

The statute changed the prior case law and it is now clear that the intervention of an unauthorized person no longer operates to break the chain of causation. Its purpose is two-fold: (1) as a public safety measure designed to protect life and property of others by conferring a cause of action upon anyone damaged as a consequence of its violation and (2) as a deterrent to theft. (Matter of Smith (MVAIC) 57 Misc.2d 576, 293 N.Y.S.2d 373, mod. 34 A.D.2d 629, 309 N.Y.S.2d 536; Padro v. Knobloch, 28 Misc.2d 898, 214 N.Y.S.2d 216; Kass v. Schneiderman, 21 Misc.2d 518, 197 N.Y.S.2d 979.) It appears that a substantial number of states which have similar statutes and which have passed on In Stock v. Buff et al., 35 A.D.2d 1076, 316 N.Y.S.2d 450, we affirmed without opinion a judgment against a defendant who violated § 1210(a) of the Vehicle and Traffic Law. In that case the driver parked a car in a bus zone in front of a terminal behind a parked bus. It was undisputed that he left it unattended with the key in the ignition while delivering a package within the terminal. An unauthorized person entered the car to move it and in doing so struck the back of the bus in which plaintiff was standing. Plaintiff was thrown to the floor and injured. In these circumstances the court directed a verdict of negligence and liability against the driver, based on the undisputed evidence of his violation of § 1210(a) of the Vehicle and Traffic Law. In so doing, the court decided as a matter of law (1) that the basic requirements of the section had been violated; and (2) that the alleged violation was a proximate cause of the accident and injury.

this question have taken the position that the intervention of the third party does not operate to break the chain of proximate causation. (51 A.L.R.2d 639--643.)

In the instant case the court did not charge that violation of the statute was a proximate cause as a matter of law but submitted that question to the jury. It charged that if the jury found that defendant was negligent in violating the statute, even though the plaintiffs' injuries were caused by the acts of Smith, defendant might be liable for those injuries if it made the further finding that a reasonably prudent person, situated as defendant was at the time and place involved, would have foreseen the possibility of a thief stealing his automobile if the keys were left in the ignition and would also have foreseen that a thief, having stolen the car, might have recklessly driven it, thereby endangering the lives of other people on the highway.

In light of this charge, and upon the record before us, disclosing that the V.F.W. field day event was attended by 'infants', the jury was entitled to conclude that defendant's failure to remove the key from the ignition switch was one of the links of causation which resulted in damages to plaintiffs. (Cf. Waldorf v. Sorbo, 10 A.D.2d 226, 198 N.Y.S.2d 555, affd. 9 N.Y.2d 703, 213 N.Y.S.2d 85, 173 N.E.2d 806.) Under all the facts and circumstances we conclude that the issues of defendant's negligence and proximate cause were properly submitted to the jury and that the verdicts are supported by the proof. (...