Torts - No Duty to Tort Victim for Failure to Secure Unattended Vehicle

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Delci v. Guiterrez Trucking Co., 632 Az. Adv. Rep. 8 (App. Div. I, April 19, 2012) (J. Hall)

NO DUTY FOR FAILURE TO SECURE VEHICLE RESULTING IN THEFT OF VEHICLE AND ULTIMATE INJURY AND DEATH TO PLAINTIFFS IN AUTO ACCIDENT CAUSED BY THIEF

Defendant driver left his employer's tractor trailer unlocked with the keys under the floor mat in an unfenced field. A thief drove the tractor trailer into plaintiffs' vehicle killing one occupant and injuring another. Thief left scene and was never found. Plaintiffs sued for failure of defendants to reasonably secure the tractor trailer. Trial court granted defendants judgment on the pleadings and the Arizona Court of Appeals affirmed.

In Shafer v. Monte Mansfield Motors, 91 Ariz. 331, 372 P.2d 333 (1962) a thief stole a car from defendant's auto dealership then caused an auto accident in the stolen car injuring plaintiff. The Arizona Supreme Court held the dealership owed no duty to plaintiff because 1) there was no statute or ordinance prohibiting one from leaving the keys in a car unattended and 2) there was no proof the theft was foreseeable.

The court of appeals here held that to the extent the supreme court relied upon foreseeability to find no duty, Gipson v. Kasey, 214 Ariz. 141, 150 P.3d 228 (2007) tacitly overruled it. Gipson has made it clear that foreseeability is no longer relevant to determining the existence of duty--foreseeability is a question for the jury. However, the court of appeals found Shafer binding so far as its requirement that there be a statute, ordinance, common law, special relationship or public policy reason to find a duty and this is a question of law for the court.

Of equal importance, the court of appeals expressly rejected the Third Restatement of Torts position that all persons owe a duty to exercise reasonable care at all times as to all others. The court found that Arizona does not look to the Restatement except where it has no common law on point and on this issue Arizona in reliance upon the Second Restatement established a common law rule in Shafer and later in Gipson. Finally the court of appeals found that to follow the Third Restatement on this point would result in increased litigation and would remove the court as arbiter of when society should recognize a duty to exercise care to others.

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