Illinois Farmers Ins. Co. v. Tapemark Co.

• Decision Date: 17 November 1978
• Docket Number: No. 48348.,48348.
• Citation: 273 NW 2d 630
• Parties: ILLINOIS FARMERS INSURANCE COMPANY, a member of Farmers Insurance Group, Appellant, v. TAPEMARK COMPANY, Respondent.
• Court: Minnesota Supreme Court

273 N.W.2d 630 (1978)

ILLINOIS FARMERS INSURANCE COMPANY, a member of Farmers Insurance Group, Appellant, v. TAPEMARK COMPANY, Respondent.

No. 48348.

Supreme Court of Minnesota.

November 17, 1978.

Jardine, Logan & O'Brien and Richard T. Dolezal, St. Paul, for appellant.

Cragg & Bailly and Robert L. McCollum, Minneapolis, for respondent.

Heard before SHERAN, C. J., and ROGOSHESKE, PETERSON, YETKA, and WAHL, JJ., and considered and decided by the court en banc.

YETKA, Justice.

Appeal by plaintiff Illinois Farmers Insurance Company, a member of Farmers Insurance Group, from an order of the Ramsey County District Court granting defendant Tapemark Company's motion for summary judgment, and from judgment entered on September 30, 1977.

On June 20, 1973, between 1 and 1:30 p. m., Peter D. Ochsner, salesman for defendant, drove a 1972 Chevrolet, owned by defendant and provided to Ochsner as a company car, to the Como Golf Course in St. Paul. Ochsner is not sure whether he had previously played at this course or, if he had, whether it was before or after the accident. Ochsner parked the car in the public parking lot across from the club-house. He opened the trunk of the car by pushing a trunk-release button located inside the glove compartment. He then got out of the car, removed his golf equipment from the trunk, tossed the car keys into the trunk, closed the trunk lid, and went to play golf. He left the car doors and the glove compartment unlocked. Whether Ochsner observed young people in the parking lot is in dispute. When Ochsner returned to the parking lot between 5 and 5:30 p. m., he found the car was missing. He called defendant and was told that the car had been reported as stolen and that it had been involved in an accident.

At approximately 5 p. m. of the same day, Joseph H. Rivard, plaintiff's insured, was driving west on Larpenteur Avenue in St. Paul. Approximately one-fourth to one-half mile east of Lexington Parkway, the 1972 Chevrolet owned by defendant turned left onto Larpenteur, forcing Rivard to move to the right. Rivard passed the car on the right and proceeded to the intersection of Larpenteur and Hamline where he came to a full stop at the stop sign. While Rivard was stopped at the stop sign, the defendant's car rammed into the rear end of Rivard's car, pushing it into the intersection. The defendant's car swung around Rivard's car on the left and went through the intersection. Rivard pursued the car in his own car, but lost the driver when the driver left the car on a side street and fled on foot. The driver of defendant's car has never been identified or apprehended. Rivard described the driver as in his late teens or early twenties, with a swarthy complexion and long red hair and wearing glasses, cut-off jeans, and a t-shirt. The keys to the car were found and returned to Ochsner.

The impact of defendant's car on Rivard's car caused the seat rails in Rivard's car to break loose, and Rivard was tossed around the inside of the car. As a result, Rivard suffered injuries to his lower back, right shoulder, and neck. Rivard was insured by plaintiff Farmers Insurance Company on the day of the accident and submitted a claim for his personal injuries under the uninsured motorist provision of his policy. Plaintiff settled with Rivard in the sum of $27,500 and commenced this action against defendant to recover that sum.

The legal issues raised on appeal are:

1. Did the trial court err in granting defendant's motion for summary judgment?

2. Did the trial court err in ruling that, as a matter of law, defendant could not be found liable?

3. Did violation of a St. Paul ordinance requiring the removal of keys from a motor vehicle when parked constitute negligence per se?

Rule 56.03, Rules of Civil Procedure, provides that summary —

"judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law."

In Sauter v. Sauter, 244 Minn. 482, 484, 70 N.W.2d 351, 353 (1955), this court stated:

"A motion for summary judgment may be granted * * * only if, after taking the view of the evidence most favorable to the nonmoving party, the movant has clearly sustained his burden of showing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law." (Foot-notes omitted.)

On a motion for summary judgment, the court is to determine only whether a genuine issue of fact exists; it is not to resolve any factual issue. Anderson v. Twin City Rapid Transit Co., 250 Minn. 167, 186, 84 N.W.2d 593, 595 (1957). A motion for summary judgment should be denied if reasonable persons might draw different conclusions from the evidence presented. Id. at 186, 84 N.W.2d at 595.

In the present case, defendant argues that the operative facts are not in dispute. Plaintiff argues that there are factual issues regarding negligence and proximate cause.

As a general matter, issues of negligence and proximate cause are questions of fact and are not susceptible to summary adjudication. See, Sauter v. Sauter, supra, 244 Minn. at 486, 70 N.W.2d at 354; 2 Hetland & Adamson, Minnesota Practice, Civil Rules Ann. at 574. In an appropriate case, however, "where the material facts are undisputed and as a matter of law compel only one conclusion," Sauter v. Sauter, supra, 244 Minn. at 486, 70 N.W.2d at 354, summary judgment may be granted. In the present case, the principal fact in dispute is whether defendant's employee knew or should have known that young people frequented the parking lot where he left the car and that there had been problems with thefts and vandalism in the parking lot.¹ This is a genuine issue of fact in that reasonable persons could disagree on its resolution and its resolution depends to some extent on credibility of witnesses. Whether it is a material fact depends upon the law applicable to this case. It is material only if its resolution will affect the outcome of the case. 2 Hetland & Adamson, supra, at 571.

Even if there is no genuine issue of material fact, summary judgment is to be granted only if, as a matter of law, either party is entitled to judgment. Thus, in order to determine whether the trial court erred in granting defendant's motion for summary judgment, it is first necessary to determine the applicable rule of law.

Until recently, the general rule in this jurisdiction, and a majority of other jurisdictions, had been that the negligent driving of a stolen car by a thief is an intervening efficient cause that interrupts the causation between the initial negligent act and the resulting injury. State Farm Mutual Automobile Insurance Co. v. Grain Belt Breweries, Inc., 309 Minn. 376, 379, 245 N.W.2d 186, 188 (1976); Annotation, 45 A.L. R.3d 787 (1972). In Grain Belt, however, we recognized the trend of several courts to consider the peculiar facts of these cases and adopted the "special circumstances" rule:

"`* * * Special circumstances which impose a greater potentiality of foreseeable risk or more serious injury, or require a lesser burden of preventative action, may be deemed to impose an unreasonable risk on, and a legal duty to, third persons.

* * * * * *

"`* * * Each case must be considered on its own facts to determine whether the joint effect of them in toto justifies the conclusion that the foreseeable risk of harm imposed is unreasonable, and that the defendant owner or one in charge of a vehicle has a duty to third persons in the class of the plaintiffs to refrain from subjecting them to such risk.\'" 309 Minn. at 380, 245 N.W.2d at 189, quoting Hergenrether v. East, 61 Cal.2d 440, 444, 39 Cal.Rptr. 4, 6, 393 P.2d 164, 166 (1964).²

Although this court did not expressly overrule previous cases holding that the negligence of a thief is an intervening efficient cause relieving the owner of liability,³ by adopting the special circumstances rule it shifted the emphasis of the inquiry to whether the negligence of the thief was reasonably foreseeable by the owner. This emphasis on foreseeability is consistent with other Minnesota cases finding a defendant liable for injury caused by the actions of a third party when the injury was a reasonably foreseeable result of the defendant's own negligent conduct.⁴

This approach is also consistent with that of other courts applying the special circumstances rule. These courts have generally focused on whether, given the particular circumstances, the theft of the car and the subsequent negligent operation of the car by the thief were foreseeable by the defendant.⁵ See, e. g., Enders v. Apcoa, Inc., 55 Cal.App.3d 897, 127 Cal.Rptr. 751 (1976) (the purpose of the special circumstances test is to establish that the tortious conduct was foreseeable to defendant); Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla.1977); Hill v. Yaskin, 75 N.J. 139, 144, 380 A.2d 1107, 1110 (1977); cf. England v. Mapes Produce Co., 238 Cal.App.2d 120, 47 Cal.Rptr. 506 (1965) (applying the special circumstances test, but finding no liability because behavior of thief was not foreseeable). As stated by a New Jersey appellate court —

"* * * basically the key to duty, negligence and proximate cause * * * is the foreseeability vel non to a reasonable man of an unreasonably enhanced hazard, when a motor vehicle is left unlocked in a public place with key in the ignition, of both the theft or misappropriation of the vehicle and an ensuing mishandling of it by the taker with death, injury or destruction of property of others lawfully using the highways as a result." Zinck v. Whelan, 120 N.J.Super. 432, 445, 294 A.2d 727, 734 (1972), cited with approval in Hill v. Yaskin, 75 N.J. 139, 144, 380 A.2d 1107, 1110 (1977).

The factors emphasized in Grain Belt also indicate that foreseeability is key to a defendant's...