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Lorang v. Heinz

MAY 22, 1969.

JOHN P. LORANG AND CLARE LORANG, PLAINTIFFS-APPELLEES,

v.

DONALD A. HEINZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County, Sixteenth Judicial Circuit; the Hon. JOHN CHIVARI, Judge, presiding. Reversed.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.

This is an interlocutory appeal from a judgment on a jury verdict of liability in a separated trial.

The action was brought by plaintiffs to recover damages from defendant for injuries received when their automobile was struck by defendant's car, being driven by a thief who had stolen it some ten days prior to the accident. Defendant's car, when stolen, had been left unoccupied in a parking lot of a shopping center with the keys in the ignition and the motor running.

The cause went to trial on the amended complaint which charged common-law negligence in leaving the automobile unattended, with the motor running and the key in the ignition. (The original complaint had charged a violation of section 92 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1963, c 95 1/2, par 189). *fn1 This was dismissed on motion which alleged that the acts charged were on private property and thus not within the statute. No appeal has been taken from the order striking the original complaint.)

Plaintiffs rely principally on authorities decided under the statute, supra, to support their view that the foreseeability of theft and resulting injury to another, arising out of leaving a car unattended, with the key in the ignition and the motor running in a private as well as in a public area, raises a common-law duty, the breach of which constitutes negligence. They contend that the question of whether such negligence was the proximate cause of the injuries to plaintiffs became a jury question and that the verdict of the jury is properly supported by the record.

Defendant argues that, absent the statute, there is no duty to so manage a motor vehicle, in the circumstances found here, to anticipate the independent crime of a thief and his willful or negligent driving thereafter "absent special knowledge of probable imminent theft if he leaves his keys in the ignition." Defendant further argues that the evidence clearly negates any such special knowledge; and that, in any event, there was no proximate causal connection between the acts of negligence charged and an accident ten days later.

We agree with the defendant and will reverse the judgment below.

While leaving the ignition key in an unattended motor vehicle in a place frequented by the public, though privately owned, without other special circumstances may impose a duty to proprietary interests in the vehicle based on the reasonable foreseeability of car thefts, we do not find a similar common-law duty to one injured by the thief who drives the vehicle.

[1-4] A classic principle of tort law, often stated in the Illinois cases, is that every person owes a duty to every other person to exercise ordinary care to guard against injury which may naturally flow as a reasonable, probable and foreseeable consequence of his acts. The duty does not rest on contract, privity of interest or the proximity of the relationship between the parties, but extends to remote and unknown persons. Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95, 103, 197 N.E. 578 (1935); Allegretti v. Murphy-Miles Oil Co., 363 Ill. 137, 140, 1 N.E.2d 389 (1936); Kahn v. James Burton Co., 5 Ill.2d 614, 622, 126 N.E.2d 836 (1955). Questions of breach of duty and proximate cause of injuries are usually questions of fact, but whether any duty exists is a question of law. Allegretti v. Murphy-Miles Oil Co., supra, pages 141, 142.

Obviously, every risk which is foreseeable does not create a duty to an injured person. In addition, the likelihood of injury, the magnitude of the burden guarding against it, and the desirability of placing the burden upon a defendant must also be considered. Lance v. Senior, 36 Ill.2d 516, 518, 224 N.E.2d 231 (1967).

In the Lance case the Supreme Court affirmed the action of the trial judge in dismissing a complaint which charged the defendant with negligently and carelessly permitting and allowing a nine-year-old child to play with a needle, with the resulting injury when it was swallowed. In Pitts v. Basile, 35 Ill.2d 49, 52, 53, 219 N.E.2d 472 (1966) no duty was raised by the sale of darts to grocery stores as a matter of law although the complaint alleged a propensity of darts to cause serious injuries, as demonstrated by the injuries suffered by the infant plaintiff in that case. Similarly, giving of a boomerang for use of a child imposed no liability as a matter of law, notwithstanding the foreseeability of injury. Maramba v. Neuman, 82 Ill. App.2d 95, 104, 227 N.E.2d 80 (1967).

It might well be argued that it is reasonably foreseeable that entrusting a motor vehicle to another, particularly to a minor or an aged person, will result in accidents, noting the high rate of accidents in those age brackets. However, our courts have ruled that a motor vehicle is not a dangerous instrumentality per se, and that the owner is not liable to one injured at the hands of a third person absent an agency relationship or absent authorization to such person, known to be incompetent or reckless, to drive a car. Arkin v. Page, 287 Ill. 420, 428, 123 N.E. 30 (1919); Barton v. Williams, 4 Ill. App.2d 266, 269, 124 N.E.2d 356 (1955); Brill v. Davajon, 51 Ill. App.2d 445, 452, 201 N.E.2d 253 (1964).

In the case of Richards v. Stanley, 271 P.2d 23 (1954), a case substantially similar to this case on its facts, the court stated on pages 26, 27:

"The problem is not answered by pointing out that there is a foreseeable risk of negligent driving on the part of thieves. There is a foreseeable risk of negligent driving whenever anyone drives himself or lends his car to another. That risk has not been considered so unreasonable, however, that an owner is negligent merely because he drives himself, or lends his car to another, in the absence of knowledge on his part of his own or the other's incompetence. Moreover, by leaving the key in the car the owner does not assure that it will be driven, as he does when he lends it to another. At most he creates a risk that it will be stolen and driven. The ...


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