Kim v. Budget Rent A Car Systems, Inc.

• Decision Date: 25 January 2001
• Docket Number: No. 67352-7.,67352-7.
• Court: Washington Supreme Court
• Parties: Tae KIM, limited guardian for the Estate of Peter Kim; Ki Young Kim; and Won Sook Kim, Appellants, v. BUDGET RENT A CAR SYSTEMS, INC., a Delaware corporation, Respondent, Demicus Young, Defendant.

15 P.3d 1283

143 Wash.2d 190

143 Wn.2d 190

Tae KIM, limited guardian for the Estate of Peter Kim; Ki Young Kim; and Won Sook Kim, Appellants, v. BUDGET RENT A CAR SYSTEMS, INC., a Delaware corporation, Respondent, Demicus Young, Defendant.

No. 67352-7.

Supreme Court of Washington, En Banc.

Argued March 1, 2000.

Decided January 25, 2001.

As Amended January 31, 2001.

Charles Kenneth Wiggins, Kenneth Wendell Masters, Bainbridge Island, Christopher Cyrus Pence, Richard Andrew Bergh, Seattle, for Appellants.

Phillips & Webster, K.C. Webster, Ralph Glenn Phillips, Woodinville, for Respondent.

MADSEN, J.

In this case we are asked to decide whether plaintiff Peter Kim may maintain a negligence action against Budget Rent A Car for injuries sustained by plaintiff after one of Budget's vehicles, with the keys left in its ignition, was stolen by a third party and used to commit a vehicular assault against plaintiff. The trial court dismissed this case on summary judgment. We accepted direct review, and affirm, holding that Budget did not owe a duty of care to plaintiff and that Budget's negligence was not the proximate cause of plaintiff's injuries.

FACTS

On the night of September 6, 1991, Demicus Young, an accomplished thief, went to Pacific Highway South in the city of Sea Tac for the purpose of stealing a vehicle. Young trespassed onto Budget's Seattle Region Administrative Facility parking lot, which is located off Sea Tac airport property. No vehicles are rented from Budget's administrative facility and it has no fences, barriers, lights, security personnel, or cameras. On Budget's administrative parking lot Young found an unlocked Dodge minivan with the keys in its ignition and stole the vehicle. There is no evidence in the record that prior to Young's theft a vehicle had ever been stolen from Budget's administrative facility.

Young drove home and went to sleep. Then, the next day, he consumed alcohol and smoked marijuana. He then attempted to drive the minivan, and while pulling out of his driveway struck a telephone pole. Concerned observers contacted the police to report Young's suspicious behavior. When Young saw the police, he attempted to speed away, believing the police were pursuing him. He then ran a stop sign and caused the accident severely injuring plaintiff.

Plaintiff filed suit against Young and Budget. The trial court granted Budget's motion for summary judgment. Plaintiff petitioned this court for direct review, which we granted.

ANALYSIS

I

"It is an elementary principle that an indispensable factor to liability founded upon negligence is the existence of a duty of care owed by the alleged wrongdoer to the person injured...." Routh v. Quinn, 20 Cal.2d 488, 491, 127 P.2d 1, 3 (1942); see also Folsom v. Burger King, 135 Wash.2d 658, 671, 958 P.2d 301 (1998)

. The existence of duty is a question of law. Folsom, 135 Wash.2d at 671,

958 P.2d 301 (citing Pedroza v. Bryant, 101 Wash.2d 226, 228, 677 P.2d 166 (1984)). Plaintiff asks us to hold that Budget owed a duty of care to plaintiff to prevent Young from stealing its vehicle and committing a vehicular assault. Under the facts of this case, we are unwilling to do so.

Plaintiff contends that "Washington courts recognize that defendants have a duty to protect against the criminal acts of third persons where the defendant's action or omission involves an unreasonable risk of harm to the plaintiff via the conduct of the tort-feasor." Pl.Br. at 35. This is an overly broad statement of our prior cases.

"`The general rule at common law is that a private person does not have a duty to protect others from the criminal acts of third parties.'" Nivens v. 7-11 Hoagy's Corner, 133 Wash.2d 192, 199, 943 P.2d 286 (1997) (quoting Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash.2d 217, 223, 802 P.2d 1360 (1991)). This is an expression of the policy that "one is normally allowed to proceed on the basis that others will obey the law." Hutchins, 116 Wash.2d at 236, 802 P.2d 1360. In a case factually similar to the case at bar, Justice Traynor noted

[i]n one sense the problem presented involves the duty of the owner of an automobile so to manage it as not to create an unreasonable risk of harm to others. It bears emphasis, however, that when [the defendant] left the car it was in a position where it could harm no one, an[d] no harm occurred until it had been taken by a thief. Thus a duty to prevent such harm would involve more than just the duty to control the car, it would involve a duty to prevent action of a third person. Ordinarily, however, in the absence of a special relationship between the parties, there is no duty to control the conduct of a third person so as to prevent him from causing harm to another.

Richards v. Stanley, 43 Cal.2d 60, 65, 271 P.2d 23, 27 (1954).

Plaintiff asks us to depart from this general rule, relying in part on the Restatement (Second) of Torts § 302B (1965), which states:

An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.

This section does not support imposition of a duty in this case. As comment e to the section explains, a duty to guard against third party conduct may exist where there is a special relationship to the one suffering the harm, or "where the actor's own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable [person] would take into account." Restatement (Second) of Torts § 302B cmt. e (1965). This does not mean that any risk of harm gives rise to a duty. Instead, an unusual risk of harm, a "high degree of risk of harm," is required. Id. There is nothing in the facts of this case indicating that a high degree of risk of harm to plaintiff was created by Budget's conduct of leaving the keys in the ignition of an automobile in an area where Budget had never had a prior vehicle theft.

Our case law does not support imposition of a duty either. Generally, our cases, involving a duty to protect a party from the criminal conduct of another, have fallen into one of two categories. We have found a duty where there is a "special relationship" with the victim. See, e.g., Nivens, 133 Wash.2d 192,

943 P.2d 286 (business to business invitee); Niece v. Elmview Group Home, 131 Wash.2d 39, 929 P.2d 420 (1997) (party entrusted with the care of a dependant); Gurren v. Casperson, 147 Wash. 257, 265 P. 472 (1928) (innkeeper to guest). And second, we have imposed a duty where there is a "special relationship" with the criminal. See, e.g., Hertog v. City of Seattle, 138 Wash.2d 265, 979 P.2d 400 (1999) (state—probationer); Petersen v. State, 100 Wash.2d 421, 671 P.2d 230 (1983) (psychotherapist—patient); Bernethy v. Walt Failor's, Inc., 97 Wash.2d 929, 934, 653 P.2d 280 (1982) (customer—store owner).

For instance, in Hutchins we held that a landowner was not liable for a trespasser's perpetration of a criminal act against a noninvitee on the owner's land. Hutchins, 116 Wash.2d at 226, 802 P.2d 1360. In Nivens, we held that a business may under some circumstances be liable for a third party's criminal acts against an invitee. Our holding in Nivens was predicated explicitly on the fact that "a special relationship exists between a business and an invitee because the invitee enters the business premises for the economic benefit of the business." Nivens, 133 Wash.2d at 202, 943 P.2d 286. Similarly, in Passovoy v. Nordstrom, Inc., 52 Wash. App. 166, 758 P.2d 524 (1988), the Court of Appeals held that Nordstrom could be liable for injuries sustained by its patrons caused by an actively pursued and fleeing shoplifter. The consistent theme in these cases is that no duty exists absent a special relationship with either the criminal or victim. Id. at 172-73, 758 P.2d 524. Neither circumstance is present here.¹

Even if we were to adopt a very broad reading of our duty cases and hold that a defendant has an obligation to guard against all foreseeable third party criminal conduct, we would not find a duty on these facts. Budget could not foresee a theft from its administrative facility any more than any other private business owner would foresee a theft from its parking lot. If Young had stolen the minivan from Budget's "rental lot," an argument could be made that the theft was potentially foreseeable, as Budget, as well as other car rental companies, often experience thefts from their rental facilities. But this is not the case here. There is nothing in the record indicating that Budget had ever had a car stolen from its administrative facility and we believe "`[i]t would be unjust to require one to anticipate that a crime will be committed unless there has been a warning or unless a previous criminal act occurred in the same premises.'" Prosser and Keeton on The Law of Torts § 33, at 201 n. 78 (W. Page Keeton ed., 5th ed.1984) (quoting Brogan Cadillac-Oldsmobile Corp. v. Cent. Jersey Bank & Trust Co., 183 N.J.Super. 333, 443 A.2d 1108, 1110 (1981), aff'd, 190 N.J.Super. 500, 464 A.2d 1141 (1983)).

Plaintiff also relies on the rule found in comment e, section G to Restatement § 302B. Pl.Br. at 36. That section states that a duty of care is created "[w]here property of which the actor has possession or control affords a peculiar temptation or opportunity for intentional interference...." Restatement § 302B cmt. e, § G. Although we have never utilized this comment to impose a tort duty, we noted in Hutchins,

cases where this exception to the general rule (of no liability for the criminal acts of third parties) is applied involve some condition of the property which, by its nature, is quite out of the ordinary, i.e., presenting a special or peculiar temptation or opportunity, and involve a high degree of risk of harm.

Hutchins, 116 Wash.2d at 232, 802...