Lavo v. Medlin, s. 48368
| Decision Date | 14 January 1986 |
| Docket Number | 48378,Nos. 48368,s. 48368 |
| Citation | 705 S.W.2d 562 |
| Parties | Lawrence LAVO, and Robert Lavo, Plaintiffs-Respondents, v. George MEDLIN, Thomas Kwiatkowski, Terrence Brogan and Allstate Insurance Company, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Godfrey, Vandover & Burns, Inc., Samuel T. Vandover, St. Louis, for defendants-appellants.
Gary A. Growe, Clayton, for plaintiffs-respondents.
Appellants Brogan and Kwiatkowski appeal from an adverse judgment entered in favor of respondents Lawrence and Robert Lavo in an action arising from the negligent operation of Kwiatkowski's car by Medlin, a thief. We reverse and remand.
On March 17, 1978, Brogan and Kwiatkowski were celebrating St. Patrick's Day. During the course of the evening, the two traveled together in Kwiatkowski's car and visited several drinking establishments. Around 10:30 p.m., they arrived at a night spot called "Ziggy's." Several hours later Brogan asked Kwiatkowski for the keys to his car. He explained that he was tired and wanted to sleep. Kwiatkowski then gave his keys to Brogan who retired to the car which was parked in the adjacent lot. Brogan turned on the ignition to start the heater and then fell asleep in the front passenger seat with the keys still in the ignition. Later, Brogan did not recall whether he turned the motor off before falling asleep.
Sometime thereafter, Medlin also left Ziggy's. Although Medlin knew neither Kwiatkowski nor Brogan and did not have permission to drive Kwiatkowski's car, he nevertheless entered the car and drove off with Brogan still asleep in the passenger's seat. After driving for only a short distance, Medlin negligently collided with a vehicle driven by respondent Lawrence Lavo.
Lawrence Lavo and his father Robert Lavo then brought suit against Kwiatkowski, Brogan, Medlin, and Allstate Insurance Company, the Lavo's uninsured motorist carrier. Their suit alleged (1) that Kwiatkowski negligently entrusted his keys to Brogan, whom he knew or should have known to be under the influence of alcohol and, therefore, incompetent to assume responsibility of the vehicle; (2) that Brogan negligently left the car keys in the ignition when he knew or should have known that a person under the influence of alcohol would take the car and negligently operate it; and (3) that Medlin negligently operated the vehicle.
The trial court entered judgment in favor of Lawrence and Robert Lavo. It then overruled Kwiatkowski and Brogan's motions for a directed verdict or for a new trial. This appeal followed. 1
On appeal, Kwiatkowski and Brogan argue that they breached no duty owed by them to the Lavos nor did they proximately cause Lawrence Lavo's injuries. We agree.
Three elements must exist for a case of actionable negligence: (1) a duty owed by defendant to protect plaintiff from the injury of which he complains; (2) a failure by defendant to perform that duty; and (3) injury proximately caused by defendant's failure. Dix v. Motor Market, Inc., 540 S.W.2d 927, 932 (Mo.App.1976).
The concept of duty depends upon the issue of reasonable foreseeability. Id. at 931. If it is reasonably foreseeable that an automobile with keys left in the ignition would be stolen and negligently operated by a thief, then one would have a duty to protect third parties from this conduct. In this state, however, we have held, as a matter of law, that "in the absence of special circumstances or special relationships affecting foreseeability, one who leaves a vehicle unlocked with keys in the ignition does not owe a duty to a third parties [sic] arising from accidents involving thieves." Id. at 932.
In Dix, we cited Hergenrether v. East, 61 Cal.2d 440, 39 Cal.Rptr. 4, 393 P.2d 164 (1964) as illustrative of special circumstances which were held...
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