*1 HILL, WIFE, WILLIAM HILL AND KAYTRINE HIS E. PLAINTIFFS-APPELLANTS, v. JUDITH AND YASKIN SERVICES, INC., JOINTLY, CAMDEN PARKING SEV ALTERNATIVE, ERALLY IN THE DEFEND AND/OR ANTS-RESPONDENTS. Arguеd April 5, 1977—Decided December Mr. Barry the cause for argued appellants Hockfield Associates, A., Asbell & (Joseph P. attorneys). Owens, III, respon- cause for F. Herbert argued
Mr. Kisselman, Mon- Deighan, (Messrs. A. Yaskin dent Judith *2 Summers, & tano attorneys). Cam John A. for respondent
Mr. Fratto the cause argued & Bleakly, Stochwell Services, (Messrs. den Inc. Parking Zink, attorneys). was by court delivered opinion
The the Hill,1 po- Plaintiff William Camden Clifford, J. E. officer, 8, on October 1971 when his police liсe was ve- was The car with a which he pursuing. collided vehicle Yaskin, had A. been stolen hicle, owned defendant Judith from defendant lot day operated the previous Services, was Inc. Suit (Camden Parking). Camden Parking bottomed commenced Yaskin and Camden against Parking left in on fact had been ignition key the admitted that the the vehicle while it was lot. Specifically, the the parked defendant Yaskin “so Complaint negligently charged * * * unattended, her allowed motor carelessly allow unknown use same.” so as to the driver to take and the the As Camden Parking to defendant was that charge unattended, Yaskin vehicle had been with the keys placed owner, the specific on ignition, instructions on this conduct con- and that of Camden part Parking negligence. stituted in favor court
The granted trial affirmed, Division both and the Appellate defendants certification. J. This Super. (1976). granted Court 70 N. 279 (1976). police from essentially unrevealing report,
Aside us flesh out allega- factual information before of the comes the depositions of the Complaint tions Kaytrine loss of 1 Plaintiff Hill sues for services consortium “plaintiff” opinion her in this husband. Reference to hereafter plaintiff William Hill. 1971, reveal These that on October defendant parties. lotj her car in Camden Yaskin defendant parked Parking’s area, located crime across the from the street high office; in which her law that although she maintained building re- customer, she was monthly designated space her; served she leave obliged in the so the neces- attеndant could move it when learn further sary. We that inasmuch as the lot closed regu- p.m:., larly 5:00 at which time the attendant departed, any in the lot hour at that was left remaining under mat visor, the floor or over the car doors unlocked. It is inferred to be was followed practice day When Yaskin question.2 went to 8:00 p.m., about 7:30 or her re- car was there and she The ported duty, it stolen. nеxt day plaintiff, patrol while on *3 ensued, with the car some in it. A spotted youngsters chase in a collision between the two ending vehicles.
The also depositions disclose that defendant Yaskin was familiar with the parking routine described In addi- above. tion, the fact despite that she had set of extra she keys, “never of” thought instructing the attendant to lock her event vehicle the did not return she for it he before de- The parted. manager of Camden admitted in his Parking dep- osition that the past there been had problems van- and of cars from dalism theft this lot. And while Yaskin it, disputed testimony there that her auto- indicating had been previously mobile stolen from this same lot on at occasion least one prior before. perhaps twice precisеly stolen, as to when the 2The record silent likely and it is not that the exact time can be established absent a attorney’s argument reliable statement the thief. Plaintiff’s summary judgment on the for was based on the motion leaving key car, of “the enhanced hazard of in a somewhere after * * hours, (emphasis supplied). in an unattended assumed, Appellate Super, The Division 138 N. J. as do wе purposes opinion, for that the occurred theft after 5:00 P.M. when the lot was unattended. 142 “in absence of Division held the
The Appellate factors, an of a stolen vehicle owner is not distinguishing acts of thief the liable the therein.” 138 he his car parked key because merely Parking, to Camden With reference N. J. at 268. Super, right had the operator that court concluded that neither certain hours business during conduct its p.m. to leave arrangement time nor closing the 5:00. could be “considered late customers keys to accommodate party stranger third of a breach context a felon.” 138 J. Su- act of intervening per. to consider occasion not had yet Court has
While this Division our Appellate two decisions of are there question, aof liability per regarding are in direct conflict which with the street public a car on parks son who stolen and becomes car is thereafter and the the ignition involved, N. J. Lyttle, 11 Su In Saracco in an accident. issue jury held 1951) 254 Div. it was per. (App. reasonably as was not antic liability was presented drive car an intermeddler would ipated However, it. operate would later away but also negligently Whelan, 1972), N. J. Div. Super. Zinck v. (App. Saracco's rationale later, rejected years decided some was- liability jury question presented instead held that unlocked, with car overnight, defendant parked where and be left in the was stolen in an accident. came involved *4 In of re case, owner present absolving the Division stated that it sponsibility, Appellate disagreed Zinck, supra, with the it was decision and added was fair to hold an owner just not convinced it or responsible acts of car thief. N. J. 138 We Super, reverse.
What us the issue before comes down to whether is there was a owed to plaintiff by either defendant or both of them. Our is approach this taken with question abiding awareness that summary should be dispositions up- held fact, where there exist no issues material Jud- son v. Co., Bank & Peoples Trust 74 67, 17 (1954), all inferences legitimate must be drawn in favor — of the party resisting motion here, the plaintiff. In order ascertain the existence vel non of a owed by either defendant us, in the circumstances before is it necessary determine or whether harm to one probable position plaintiff, policе officer pur suit of the automobile, stolen reasonably been from anticipated defendant’s conduct. The issue of foresee ability in this must sense from the issue of distinguished foreseeability as that concept may be said to relate to the question of whether the act or omission of the specific de fendant was such that the ultimate injury plaintiff fpreseeable was a as reasonably. result so to constitute proximate cause the injury. the distinction is Simply put, between foreseeability as impacts determination and as it is sometimes applied proximate cause—a critical distinction too often too overlooked.3 (because easily) Edelman, 393, N. Y. S. 781, See Pulka 40 2d 390 N. Y. 2d 1019, E. Green, 358 N. Leon (1976). Professor 2d in his Rationale Proximate Camе tidy little' (1927), make the failure to this distinction “un characterizing as confusion,” of “interminable pardonable” productive Salmond, Law Torts us comment gives pointed Ed.): “To as a question treat remoteness .(6th what is as to existence really question negligence Green, other fault a fertile source confusion.” cit. op at 82-83. surrounding this distinction Dean Pros heated discussion 3 Of the perhаps says in the law of “[t]here ser no one issue controversy raged, concerning much which so has
torts over deluge (cid:127)'*’*'*, great legal writing [T]he so which has heen there way one of causation and never until causa arises (4th Prosser, Torts 43 at 250 § tion has been established.” ed. James, Harper (1956). 1971). Torts also & 20.5 at 1134 § See *5 basic text is as a statement as The from a following good — as emphasize to concept foreseeability of the we seek any a determinant: “duty” legally protected by probability injury interest to of one The duty to avoid such for law’s creation is basis
of another injury, duty foresight of the to lies at the foundation of harm negligence negligence. broad test The care therefore use person reasonably prudent would would foreseе do what a is Negligence light foresight of this under circumstances. the clearly injury knowledge risk of to the of the relative reference reasonably perceived apprehended. risk to be defines the to be The range obeyed; reasonably ap- within the be is the risk to person, injury prehension, taken into account another to determining In in words, damages of the tо ecxercisa care. existence injury resulting act of from an reasonably may prudent and be if a careful defendant person recovered anticipated, under same or similar circum- stances, injury plaintiff or to the those in like situation probably negligence, most common would result. The test of there- wrongful fore, alleged is whether the of the act were reasonably injurious coming foreseen as within others range of such acts. Foresight, hindsight, by not is the standard which one’s judged. negligence depends, is to care The existence actionable upon happened, reasonably actually upon what but what expected happen. Negligence upon have been must be determined they time, appeared by as thе facts at the and not consquences apprehended by pru- actual which were not then to be competent reasonably dent and generally man. What was to be foreseen is jury. for the Negligence [57 Am. 2d (footnotes Jur. (1970) 58§ omitted).] “duty”
This concisely set aspect forth context, Conford, in the stolen vehicle Zinck Judge Whelan, wherein he noted: supra, [Bjasically duty, negligenсe proximate cause in pattern foreseeability vel to a fact under review is the non reason- unreasonably hazard, a motor able man enhanced place ignition, public unlocked in a in the of both ensuing misappropriation the theft or handling of the vehicle and an mis- injury death, of it destruction the taker *6 property using lawfully highways of others the as the result. If then, foreseeability, principle, particularly light there is such in utility posses- of the minimal social the of of causative conduct the car, public using sor the a arises toward the members the highways, negligence, injury proxi- the its breach is and the is the breach, jury permitted mate a result the or so should be to find generality in the of cases. (emphasis original).] [Id. at 445 in
The Zinck court its fortified “enhanced hazard” approach by reference to data empirical the involved indicating danger in leaving ignition keys vehicles. unattended Super, 446-49. The validity such continuing may data be recognized by reference a recent study conducted the Law Enforcement Assistance Administration [L.E.A.A.]. A Preliminary entitled the report Study of Efectiveness of Inst, Auto Devices of Law (Nаfl Enforcement Anti-Theft L.E.A.A., Justice, and Crim. U. S. of Justice Dept, 1975) LEAA in at indicates Study] least [hereinafter 24%4 considered, cases means a thief to mobilize used a stolen car a LEAA key. Study at 4-5. The con- study’s clusion on this point was significant
a number of the cars stolen recovered involved (under lock or concealed in a mat visor, example). appear for above the sun It would thus that owner/ operator may directly very large propor- action have contributed to tion these thefts. [Id. 4.] the accident rate further concluded that study This same than rate for times the general is 47 greater stolen cars Id. at public. information as of statistical array
With
impressive
this
hesitancy
concluding
we
backdrop,
de-
favor of
not have been
either
entеred
there were
those cases where
to take into account
4 If one were
figure
inferentially
lock,
showing
key,
of a
use
on the
no marks
Study
A A
at 4—5.
LE
could rise
57%.
Parking,
accept
fendant. As to defendant Camden
while we
has the
fix the
proposition
that a
operator
right
business,
we
fact
sight
hours
cannot lose
lot was
located in
crime area
had
high
experienсed
circumstances
special
of vandalism. Under these
history
de
enhanced hazards attendant upon
unreasonably
Park
fendant
are clear. Camden
lot’s method
operation
from all
which a
determine
had
ing
duty,
jury might
breached,
evidence
the highways
users
protect
left in the vehicle
who uses the keys
action of
thief
fashion, re
in a
mobilize
then to
operatе
it and
Restatement
(Second)
See
injuries.
sulting
plaintiff’s
*7
Cal. 2d
v.
61
East,
Torts
302B
Hergenrether
(1965);
§
of
Richards
but see
440,
4,
39 Cal.
As to defendant Yaskin a similar duty should be borne by — her as is cast upon the lot. It not appear does — yet, at least, present posture record the likelihood of theft and the subsequent occur- unhappy rence was any less foreseeable Yaskin than her by co- defendant. While quite different had situation p.m., 5:00 theft occurred this defendant knew the prior p.m., at 5:00 that her closed in it was thereafter, unattended and for we aught know point may fully have been aware the character of the Once neighborhood. we ex- acknowledge сonceptually the istence of a predicated on of an increased hazard of theft and subsequent automobile, mishandling it should then the jury’s become task to determine whether under the facts of this case de- violated fendant Yaskin and her conduct a substantial causative factor in the plaintiff’s injury.
To be more specific, we would anticipate that at somе point in the trial defendant Yaskin would be interrogated about her awareness of the unsavory character of the neighborhood which she her parked vehicle and her about of any knowledge previous acts vandalism. (Significantly, for our purposes reviewing propriety favor,, her there was not one to her put depositions regard- *8 ing subjects these than those dirеcted' other in- cidents of theft of her own vehicle.) The trial would, judge at the time, instruct appropriate jurors they should consider whatever information elicited response to such questions, all other together evidence on the subject, Yaskin’s including defendant awareness acquiescence the modus operandi of the lot her pos- session of extra keys, sеt whether she determining should have that her foreseen conduct enhanced unreasonably automobile, the hazard of theft of her thus to a amounting so, breach of her If and if duty. plaintiff’s injury proximatély therefrom, Mere statement would follow. liability resulted well for a room as ample of these demonstrates propositions defendant’s verdict. our search acknowledgеd it should
Finally, area, In this one for policy. desirable essentially here William in Hill’s plaintiff whether the issue being the rule within the protection which falls is one terest an excursion into “altogether our function invokes, he Green, Or, cit. at as op. See of policy.” domain Weintraub, Chief Justice succinctly by “[wjhether more put of fairness.” Gold ultimately question exists is Newark, supra, Auth. at 583. As we berg Sousing unfair in there is defend matter, nothing requiring view the whether they to trial on go ants of Yaskin’s automobile un leaving have foreseen that unreasonably recited above under the circumstances attended hazard mishandling of its theft subsequent increased the (cid:127) — n where that hazard could have so been easily particularly eliminated, if reduced, resort entirely substantially keys, minimal burden аt worst. extra set Law reversed. remanded to the Judgment The cause trial as to defendants. Division for both Costs to abide event.
SunLivAN, (concurring part dissenting part). majority opin- I am in full agreement part ion which holds that should not in favor of been Camden Its method of granted Parking. ve- business rise to the foreseeable risk doing gave would be stolen and thereafter be- custody in its hicle involvеd in an accident. Therefore a duty come it had take risk. precautions reasonable guard against breached that was a Whether it jury question. I with the company majority part holds Yaskin, car, Judith had a the owner similar to Legal that cast lot. upon responsibility for in a cir- leaving depends *9 cumstanees. It one a car on a thing park pub overnight lic car unlockеd key doors and the street Whelan, Zinck v. 120 N. J. the ignition, Super. (App. 1972); Div. it is else a car in a something garage to park or lot parking and be the attendant to leave the required by car keys order facilitate the vehicles. shifting
The majority apparently assump- bases its on the holding p.m. tion that the car was 5:00 stolen the lot after the attendant left. that “it suggests It quite different situation had the theft occurred to 5:00 prior p.m." fact, In there evidence when the car indicating was taken and, in my opinion, inferable that equally the theft took while place the attendant was on but cars or moving his attention was otherwise distracted.
Moreover, since majority’s legal position seems to leaving in the car and the foreseeable therefrom rise to give which care it would the car impose owner, absence presence or of an attendant on the lot would not be controlling would make owner’s conduct less more negligent.
Many parking lots be left with the require car in order facilitate the business of lot. Absent shown, extreme I situation, not hold a car here would owner her car in a who parks parking and leavеs the at the direction of the attendant is not as a matter of law for the responsible consequences flowing from a theft of the car and its the thief. I operation by would hold con- requirement causal trolling factor.
Justices Mountain join in this opinion. Pashman Hughes For reversal and remandment —Chief Justice Clifford, Justices and Handler —4. Schreiber Concurring part dissenting part Moun- —Justices tain, and Pashman —3. Sullivan