A car slams into a number of other vehicles stopped at a red light, only to quickly flee the scene. This fact scenario almost always involves operating under the influence or a stolen vehicle. In the case of a stolen vehicle, rarely is a thief considerate enough to take out insurance covering his operation of the stolen vehicle before it is stolen. This leaves claims and subrogation professionals struggling to find a source of subrogation for the injuries and/or property damage. In claims involving personal injury or property damage caused by the negligent operation of a stolen vehicle, operated by the thief who stole the vehicle, we are instantly confronted by the issue of whether the owner of the stolen vehicle is responsible for the subsequent negligence and damage caused by the theft. Finding independent negligence by and liability on the owner of a stolen vehicle usually means the existence of liability insurance, and a subrogation recovery. However, like negligent entrustment, such liability is usually not automatic or vicarious. Some states have vicarious liability laws or statutes which make a vehicle owner liable for injuries or property damage that are caused by the negligent operation of a motor vehicle by a permissive user. But, what if the vehicle is stolen?
Common Law Rule
The majority common law 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 that causes injury or property damage. This is because the vehicle was taken without the consent of the owner, who did not cause the accident. 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, from a legal perspective, is that a vehicle owner will not be liable for damages resulting from his stolen vehicle, if the negligent act of the thief resulting in the injury and in the death could not be reasonably foreseen and is sufficient to break the chain of causation. Unless there is a state statute or municipal ordinance that prohibits an owner from leaving keys in an unlocked vehicle, or otherwise holds the owner liable, the liability of the owner will usually depends on the facts of the case. However, the general rule is that the theft breaks the chain of causation between the owner’s alleged negligence and the injury or damage.
Whether liability can be imputed to a vehicle owner for injuries caused by a thief is based on questions of foreseeability. States approach this differently, but most states note several factors that may lead a jury to impose a legal duty on the owner, including whether the vehicle is one that may attract those who lacked the skill and knowledge to operate it safely, whether the vehicle is one that would inflict more injury and damage than an ordinary vehicle, and whether prior occurrences should have indicated that additional security measures were required to prevent theft. Just leaving of keys in a vehicle’s ignition is generally not a proximate cause of injuries resulting from a thief’s negligent operation of the vehicle. However, liability may exist in special circumstances when the vehicle is left in an area with the keys that would make a theft likely. Some states will allow the owner of a stolen vehicle to be found liable when the owner’s negligence made the theft a foreseeable consequence.
Anti-Theft “Key In The Ignition” Statutes
Of course, what good is a common law rule without exceptions? The general rule of owner non-liability when stolen vehicles are involved has exceptions. Many states and municipalities have begun fighting the state anti-theft or “key in the ignition” 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 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, 380 A.2d 1107 (N.J. 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, 180 N.W.2d 11 (Mich. 1970).
Claims and subrogation professionals must know the law involving liability resulting from stolen vehicles if they are to competently handle claims and seek recovery of those claims dollars from a third party responsible for the loss. If a claim is paid due to property damage or personal injury caused by a thief operating a stolen vehicle, the owner of the vehicle usually offers a more realistic opportunity for recovery than the guy behind bars. A chart that takes a closer look at the specific laws and regulations in each state can be found HERE. If you should have questions regarding this article or subrogation in general, please contact Gary Wickert at gwickert@mwl-law.com.
