Defense Digest

Stolen Cars: If It Looks Like A Duck And Quack Likes A Duck, It's An "Ugly" Duck

On August 15, 2000, Ugly Duckling Car Sales, purchased a number of vehicles at Garden Spot Auto Auctions in Pennsylvania. After the vehicles were purchased, they were moved to Garden Spot's "dealer parking area" to wait for pick up by Ugly Duckling. The dealer area was an unfenced parking lot where Garden Spot permitted buyers to park their purchased cars. Other auto auctions had comparable dealer parking areas where vehicles were parked in unfenced areas. The vehicles' doors were all locked, and the keys were put under a paper floor mat in a pick up truck that had also been purchased. This was a common practice for dealers like Ugly Duckling who purchased vehicles at Garden Spot.

On the evening of August 16-17, 2000, a group of juveniles, all under the age of 18, but for one, walked to the Garden Spot Auto Auction. While trespassing they came upon the pick up truck with the keys in it. They noticed that the floor mat was "bunched," by what appeared to be some type of a bag. One of the group then forced the rear cab windows apart, thereby allowing him to crawl into the truck.

Once inside the truck, the individual discovered the bag and the keys to the various cars on the lot. They kept two sets and left the other keys in the truck. The delinquents then stole two license plates from two cars parked in a nearby neighborhood, returned to Garden Spot, attached the stolen license plates to two Honda Accords Ugly Duckling had purchased, and drove off without drivers licenses and with the knowledge that driving without a license was illegal. The two groups drove to a nearby gas station, pumped gas, and drove away without paying for the gas.

At that time, Officer Tom Pavone of the Derry Township Police Department was in the vicinity and noticed the speeding vehicles that were approaching his direction. After pulling out and following the delinquents, Officer Pavone noticed that the front vehicle was weaving into oncoming traffic while the rear vehicle turned its lights off and on as if it were attempting to signal the front vehicle. The officer then activated the overhead lights on his vehicle. As the lights were activated, the vehicles sped away in an attempt to flee the police.

Plaintiff Tim Roche was also on duty for the Derry Township Police Department and received a call to assist Officer Pavone. Officer Pavone reported that the vehicles were increasing speed and were not going to pull off of the road. In an effort to stop the vehicles, Officer Roche parked his cruiser on the side of the road and stepped into the roadway in an effort to deploy a set of "stop sticks." After seeing a vehicle with its lights on approach, Officer Roche determined that he could move a little further into the roadway to position the sticks. Unfortunately, a second suspect vehicle was rapidly approaching and struck Officer Roche, causing severe injury.

The plaintiff filed suit against Ugly Duckling and Garden Spot, alleging that the defendants were jointly responsible for negligently allowing the group of juveniles to steal the vehicle that struck him. Separately, Ugly Duckling and Garden Spot filed motions for summary judgment. In Roche v. Ugly Duckling Car Sales, Inc., 2005 PA Super 225; 2005 Pa. Super. Lexis 1504 (Pa. Super. 2005), the trial court concluded that both Ugly Duckling and Garden Spot could not foresee the plaintiff's harm and, therefore, owed no duty of care to the plaintiff.

The court's decision was based on the relationship and duty owed to the plaintiff by the defendants. The elements of a negligence-based cause of action are a duty, a breach of that duty, and a causal relationship between the breach and the resulting injury/actual loss. When considering the question of duty between parties, it is necessary to determine whether a defendant is under any obligation to the plaintiff and the relationship that exists between the parties at the time. Where the parties are strangers to each other, there is simply the general duty not to place others at risk of harm through your own actions. The scope of this duty is limited to those risks which are reasonably foreseeable by the actor and the circumstances. In general, a person is not liable for the criminal conduct of another without the presence of a special relationship imposing a pre-existing duty.

The court analogized the facts of this case to those in Liney v. Chestnut Motors, Inc., 421 Pa. 26, 218 A.2d 336 (Pa. Super. 1966) and Jamison v. Philadelphia, 355 Pa. Super. 376, 513 A.2d 479 (Pa. Super. 1986). The defendant in Liney was an auto repair garage. After the owner of a car delivered his car to Chestnut Motors for repairs, the garage's employees allowed the car to remain double-parked in the street outside the garage with the keys in the ignition. Three hours later, the car was stolen by an adult who drove it carelessly, striking the plaintiff-pedestrian on a sidewalk. The garage was located in an area that had a high rate of car thefts. The court concluded that, even assuming that the employees were negligent, the garage could not have foreseen that its employees' carelessness would result in harm to the plaintiff; therefore, the defendant garage owed no duty to the plaintiff. Additionally, the garage could not have foreseen that the thief would be an incompetent driver. Similarly, in Jamison, a thief stole a car from the defendant's parking lot and engaged police in a high-speed chase, resulting in a collision between the stolen car and another car, causing injury to a passenger in the latter car. The court stated that "one is not to be held liable for all possible consequences" and that, although the injury was a possible consequence of theft, "it was no more probable than the consequence that the thief would drive carefully so as not to attract attention."

The court distinguished the Roche case from Anderson v. Bushong Pontiac Co., 404 Pa. 382, 171 A.2d 771 (Pa. 1961), in which the defendant in Anderson was the owner of a used car lot. A fourteen-year-old boy stole the keys to a car that was on the lot. The used car lot reported the theft to police, but it did not secure the car from which its keys were stolen. At the time the keys were stolen, young boys were known to play around the lot. Two days after the keys were stolen, another boy used the keys to drive the car out of the lot while the lot was unattended. The Pennsylvania Supreme Court concluded that those facts were enough to state a cause of action against the used car lot. In its opinion, the Court stated that it was common knowledge that children lacked maturity to safely drive a car and the used car lot knew that the keys to the car had been stolen. Despite knowing these facts, the used car lot did nothing to secure the car other than to report the key theft to police. Thus, with regard to forseeability on the part of the used car lot, the Court stated, "After the keys had been stolen and such fact was known, it did not require much imagination to realize that the car itself might well be next on the list." The Court concluded that it was reasonably foreseeable that a teenager might steal the car and that the plaintiff pedestrian was within the class of persons who may be endangered by the defendant's negligence.

Although there were police records involving vehicles stolen from Garden Spot, only a few implicated juveniles and only a few involved crimes, such as trespassing and vandalism. Unlike in Anderson, in which the car lot knew that teenager boys frequently played around the area and that keys had been stolen two days prior to the vehicle itself, which the lot failed to secure after the keys were stolen, the evidence the plaintiff presented was insufficient to support the plaintiff's contention that the defendant should have foreseen that a juvenile would steal a car off the lot and drive it carelessly. Garden Spot and Ugly Duck could not foresee the theft and careless operation of the cars.

Officer Roche argued that he presented sufficient evidence to establish that the defendants should have foreseen that juveniles might steal cars and drive them carelessly. Additionally, he argued that the court improperly focused upon whether the defendants should have reasonably foreseen that leaving the keys to its purchased vehicles in a separately locked pick up truck would eventually lead to the plaintiff being injured as the result of a high speed chase after the two vehicles were stolen by the delinquents. The court should have focused on whether the defendants should have foreseen that (1) the vehicles might be stolen (2) by incompetent or careless drivers and argued that the defendants owed him a legal duty under Sections 448 and 449 of the Restatement (Second) of Torts. These Sections provide as follows:

However, it is only where the defendant is under a duty to the plaintiff, because of some relationship between them, to protect against harm, or the defendants conduct has created the risk of harm through misconduct, that he becomes negligent. The duty must also attach before either Section 448 or 449 can apply. Since the court concluded that the defendants did not owe a duty of care to the plaintiff, the two Restatement were inapplicable.

*Matt is an associate in our Philadelphia, PA office. He can be reached at (215) 575-2744 or mnoble@mdwcg.com.