Stu Price: We’re in a stolen cop car with what is sure to be a missing child in the back. What part of this is cool?
Alan Garner: I think the cop car part is pretty cool.
Quote from The Hangover
Unfortunately, all too often life mimics art. Your insured’s vehicle is safely and legally parked on a city street when it is struck and seriously damaged by a driver operating a stolen vehicle involved in a high-speed chase. The vehicle was stolen when the owner left the keys in the car at a gas station while he went inside to pay. The thief is caught and is serving time in jail, but is otherwise judgment-proof and without assets. Do you have subrogation potential against the owner of the stolen vehicle? Knowing the law in this area can make the difference between a full subrogation recovery and no recovery at all.
The majority rule among the 50 states is that the owner of a stolen vehicle will not be held liable for damages when the vehicle is stolen and then involved in an accident. This is because the vehicle was taken without the consent of the owner. Under the “permissive use doctrine”, an owner is liable for personal injury or property damage resulting from negligence in the operation of a vehicle by any person using the vehicle with the permission of the owner. Liability is dependent on the express or implied permission of the owner. Since the owner of a stolen vehicle has clearly not given permission for their vehicle to be used, they are generally not responsible for the actions of the thief. They owe no duty to the owner of the legally-parked vehicle owned by your insured.
The general rule of non-liability has exceptions. Some states hold the owner of a stolen vehicle liable when the owner’s negligence made the theft a foreseeable consequence. Courts have found owner liability under state anti-theft statutes. In New York, for example, § 1210 of New York’s Vehicle and Traffic Law provides:
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, and effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highway, provided, however, the provision for removing the key from the vehicle shall not require the removal of keys hidden from sight about the vehicle for convenience or emergency.
Other states and municipalities have similar statutes on the books which make it illegal for an owner of a vehicle to leave his/her keys in an unattended car. The goal of these statutes is not only to prevent motor vehicles from rolling away but, more importantly, to make unattended motor vehicles more difficult to steal. It is based upon the idea that a running motor, with the key in the ignition, and no driver is not only an easier target, but also an attractive target. In these special circumstances, the vehicle owner may be found liable for injuries from an accident involving a stolen vehicle. This is based on the theory that it is a reasonable and foreseeable consequence that an individual would be enticed to try and steal the vehicle. One such case out of New Jersey involved a vehicle owner who left her keys inside of her vehicle, parked in a lot with a known history of prior thefts. The court found the subsequent theft of the vehicle to have been a foreseeable consequence. The owner and lot operator should have foreseen the hazard of theft and, therefore, had a duty to protect other drivers from the actions of a thief. Hill v Yaskin, 75 NJ 139, 380 A2d 1107 (1977). Michigan courts have also found liability when the vehicle owner’s employee left the keys in the ignition of the vehicle outside of a middle school and a group of minors later stole the vehicle, subsequently killing one individual and severely injuring five others. The court felt it was reasonable to expect a minor to be curious about a vehicle and the keys already inside the vehicle could foreseeably entice a minor. Davis v. Thorton, 384 Mich. 138, 180 N.W.2d 11 (1970).
The goal of anti-theft statutes is to protect the health, safety, and welfare of the public. To depart from the principle that an owner is not responsible for the actions of a thief “involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” Kiick v. Levias, 113 Cal. App.3d 399, 403, 169 Cal. Rptr. 859, 861 (Ct. App. 1980). Courts have found that the burden placed on the car owner in exercising due care is slight and may increase owner diligence. However, society and courts, by and large, do not want to hold the owner of a vehicle liable for the actions of a third person – the thief.
While the general principle is that an owner will not be held responsible for the actions of an unauthorized user, an owner may be held responsible for his or her own negligence. American jurisprudence dictates that vehicle owners take the steps necessary to protect themselves from liability by making sure they do not make their vehicle an attractive mark to those on the lookout for an easy target. When they do, it is the responsibility of the subrogation professional to recognize this liability as the recovery opportunity that it is.
If you should have any questions regarding this article or subrogation in general, please contact Sara Schmeling at sschmeling@mwl-law.com.
