Mitchell v. Collier

Filed 11/28/07 Mitchell v. Collier CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, David T. McEachen, Judge. Affirmed.

Law Offices of Charles R. Weldon and Laila Havre Jacobsma for Appellant.

Bullard Brown & Beal, Patrick E. Naughton and John W. Roddy for Respondent.

* * *

In April 2004 Becky Mitchell sustained serious injuries in an auto collision with a stolen Papa Johns pizza delivery truck. The truck was a blue 2003 Chevrolet Silverado, stolen from a parking lot in Fullerton. The delivery driver left the trucks key in the ignition, and it was subsequently stolen by someone variously described as a vagrant, transient and car thief. Mitchell sued Shawn and Robert Collier, the franchisees of that particular Papa Johns location. The trial court sustained the Colliers demurrer to Mitchells first amended complaint, without leave to amend and Mitchell now appeals. (There is no issue in this appeal concerning any claims that Mitchell might have presented to her own insurance company based on her uninsured motorist coverage; we doubt that the car thief has his own insurance.)

The authoritative Supreme Court case on the issue of keys-left-in-the-ignition is Richards v. Stanley (1954) 43 Cal.2d 60, which stated unequivocally that a car owners duty to exercise reasonable care in the management of his or her vehicle, absent special circumstances, does not include a duty to protect third parties from negligent driving by someone who steals the car. (Id. at p. 66.) The case thus turns on whether Mitchells complaint shows any special circumstances.

Special circumstances have been found in the following situations:

-- Failure to lock a 26-ton bulldozer, which attracted intermeddlers and could not be safely operated by the average person. (Richardson v. Ham (1955) 44 Cal.2d 772, 776-777.)

-- Keys were purposely left in vehicles in a used car lot to encourage the public to inspect and drive them regardless of the competence of any potential driver. (Murray v. Wright (1958) 166 Cal.App.2d 589, 592.)

-- A 2-ton partially-loaded truck was left unlocked, keys in the ignition, in the skid row area of town populated by drunks and criminals. (Hergenrether v. East (1964) 61 Cal.2d 440, 442-443.)

-- Parking lot attendants regularly left cars in their care unlocked, with keys in the ignition, even though the lot had a history of prior thefts. (Enders v. Apcoa, Inc. (1976) 55 Cal.App.3d 897, 904-905.)[1]

-- A commercial flat-bed stake truck was left overnight, in a high-crime area, unlocked and with keys in the ignition. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 184).

It is pretty obvious from the cases that special circumstances have been found when a vehicle with keys in the ignition is (a) left in a high crime area; (b) deliberately left for passers-by to drive regardless of their competence; or (c) the nature of the vehicle made it safe only for specialist drivers to operate. (See Palma, supra, 36 Cal.3d at p. 185.)[2]

None of these special circumstances are to be found in the case before us. What we do have is this: The parking lot was located in a business district and in close proximity to several college campuses. And the pickup is a large one. There was a bright Papa Johns sign attached to it.

But those particular circumstances can hardly be called special. The stolen truck was a common passenger pickup of a type driven by numerous residents of Southern California, despite (or perhaps because of) its size.[3] And despite what one might be tempted to say about the behavior of college students, it is a wild stretch to assert that Fullerton is populated by drunks and criminals because of its proximity to various college campuses, or that its business district is a high crime area.

More importantly, Mitchell squarely avoids addressing a case that is on point -- Hosking v. San Pedro Marine, Inc. (1979) 98 Cal.App.3d 98. The defendant in Hosking left his employers truck in an alley at night, one half-block from a high school, keys in the ignition, door open, lights on and engine running, and yet, was found not to owe a duty to a third party injured when the truck was stolen. (Id. at pp. 100, 104.) The Hosking court concluded that such a situation did not pose any greater foreseeable risk than that posed by any other unlocked car with keys left in the ignition and thus, no special circumstances were present. (Ibid.) The Hosking court also observed that the driver intended to leave the truck only for a minute or two (ibid) -- as was likely the case for the Papa Johns driver.

There is no issue in this case that Mitchell possesses any additional facts that she could add to her complaint. Accordingly, the trial court was correct in sustaining the Colliers demurrer to Mitchells first amended complaint and in denying her another opportunity to amend. The judgment is thus affirmed; respondents are to recover their costs on appeal.

SILLS, P. J.

WE CONCUR:

BEDSWORTH, J.

ARONSON, J.

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Analysis and review provided by San Diego County Property line attorney.

[1] We note, however, that the court in Avis Rent a Car System, Inc. v. Superior Court (1993) 12 Cal.App.4th 221, 232-233, disagreed that Enders, supra, 55 Cal.App.3d 897 presented adequate special circumstances, since the vehicles in question were ordinary automobiles, capable of safe operation by the average driver.

[2]Palma specifically stated: Factors which distinguished the conduct in Hergenrether. . . included the area in which the truck had been parked -- one frequented by persons who had little respect for the rights of others, and populated by alcoholics; the intent that the truck remain in the location for a relatively long period of time -- overnight; the size of the vehicle -- rendering it capable of inflicting more serious injury or damage if not properly controlled; and the fact that safe operation of a half-loaded two-ton truck was not a matter of common experience. (Palma, supra, 36 Cal.3d at p. 185.)

[3] It is not uncommon, of course, that delivery drivers are required to furnish their own vehicles for use in delivery.