Guaspari v. Gorsky

Del Vecchio, J. P. This is an appeal by defendant in three actions from judgments for personal injuries, medical expenses, property damages, and wrongful death. The actions arose out of an accident which occurred when an automobile owned by defendant Gorsky and operated by a thief, Donald Smith, collided with an automobile operated by plaintiff Richard Guaspari in which his wife and infant daughter were passengers. No question is raised concerning Smith’s negligence in causing the accident. The actions against Gorski were based upon his failure to comply with the provision of subdivision (a) of section 1210 of the Vehicle and Traffic Law, which states: “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 ’ ’. Plaintiffs, having recovered judgments, are entitled to the most favorable view of the evidence, including reasonable inferences which may be drawn therefrom. (Owen v. Rochester-Penfield Bus Co., 304 N. Y. 457.) Both dissenting Justices would reverse and grant a new trial upon the ground that the jury’s finding that defendant left his keys in the ignition is against the weight of the evidence. One of them gives two additional grounds for reversal: (1) that the finding that violation of subdivision (a) of section 1210 was a proximate cause of the accident is also against the weight of the evidence, and (2) that the court erroneously charged that if defendant violated the provision of section 1210 such violation would constitute negligence. With regard to the keys in the ignition, defendant testified that on June 28, 1969 between 10:00 and 10:30 p.m. he attended a V. F. W. field day event, parked his car adjacent to the fire barn, removed his keys from the ignition and continued to the field; his keys “were on a ring, chain affair, linked ”; about one month previously he had put into the glove compartment [227] another set of keys belonging to his daughter, which were attached to a blue leather case. He also testified that his daughter’s keys had been delivered to him by Mastrangelo, his friend and former neighbor who he said did not see him put the keys in the glove compartment. According to the version testified to by Mastrangelo, defendant’s lifelong very good friend, he did see defendant put the keys in the glove compartment and that the alleged incident of delivery occurred about one week before the accident. The thief Smith, age 17, testified that he and other boys hitchhiked and attended the field day event that evening, and at about 11:30 p.m. he and one of the other boys, age 16, discussed taking a car; that they went looking for one with keys in the ignition; that he looked into one or two cars before he found defendant’s car with the keys in it and drove away. On direct examination he testified: “ Q. All right now, where were the keys? A. I think they were in the ignition. Q. The keys were in the ignition? A. I think so. Q. What were you looking for when you were looking into these other cars? A. We were looking for if the keys were in the ignition. Q. You were looking for the keys in the ignition? A. Yes. Q. Your best judgment is that the keys of the Gorski [sic] car were in the ignition? A. Yes.” On cross-examination: “ Q. What did they look like? Was it a single key or several keys? A. I think there was a couple other keys on it. Q. On a ring or string or what? A. Bing. Q. Keyring? A. Yes.” The court charged that if the jury found as a fact that the keys were in the glove compartment Gorsky did not violate the statute and there would be no recovery, but if they found as a fact that the keys were in the ignition, then Gorsky violated the statute and, further, that such violation constituted negligence on his part, but before they could find liability against Gorsky by reason of violation of this statute, they must also find that the violation of the statute was the proximate cause of the damages. Though the evidence was conflicting, its resolution was within the province of the jury. Only the jury is endowed with the right to pass on conflicting evidence, as well as credibility of witnesses. (Swensson v. New York, Albany Despatch Co., 309 N. Y. 497, 505.) It may not be said that the evidence on that issue preponderates so greatly in favor of defendant that a jury could not have reached the finding on any fair interpretation of the evidence. (Rapant v. Ogsbury, 279 App. Div. [228] 293.) In our opinion, the evidence was sufficient to support the finding that the keys had been left in the ignition switch. With regard to the proximate cause of the accident, defendant argues that there was no proximate cause shown between the violation of subdivision (a) of section 1210 and the damages. It is undisputed that the damages were sustained as a result of Smith’s negligent use of defendant’s stolen car. At common law the owner was not liable, as a matter of law, for the negligence of a thief, on the basis that the use of the car by the thief intervened between the occurrence of the negligence of the owner and the unskillful driving of the car by the thief. (Lotito v. Kyriacus, 272 App. Div. 635, mot. for lv. to app. dsmd. 297 N. Y. 1027; Walter v. Bond, 267 App. Div. 779, affd. 292 N. Y. 574; Mann v. Parshall, 229 App. Div. 366.) In recommending the enactment of what is now subdivision (a) of section 1210 of the Vehicle and Traffic Law, the Joint Legislative Committee on Motor Vehicle Problems pointed to the lack of a statutory duty to lock the ignition and remove the ignition key when leaving a vehicle unattended. The proposed law included such a requirement, “ designed to obviate the risk of a vehicle moving from the place where it was left parked and possibly injuring the person and property of others as well as itself being damaged. It serves to lessen the likelihood of theft.” (N. Y. Legis. Doc., 1954, No. 36, pp. 106-107). The statute changed the prior case law and it is now clear that the intervention of an unauthorized person no longer operates to break the chain of causation. Its purpose is twofold: (1) as a public safety measure designed to protect life and property of others by conferring a cause of action upon anyone damaged as a consequence of its violation and (2) as a deterrent to theft. (Matter of Smith [MVAIC], 57 Misc 2d 576, mod. 34 A D 2d 629; Padro v. Knobloch, 28 Misc 2d 898; Kass v. Schneiderman, 21 Misc 2d 518.) It appears that a substantial number of States which have similar statutes and which have passed on this question have taken the position that the intervention of the third party does not operate to break the chain of proximate causation. (Ann. 51 ALB 2d 639-643.) In Stock v. Buff (35 A D 2d 1076) we affirmed, without opinion, a judgment against a defendant who violated subdivision (a) of section 1210 of the Vehicle and Traffic Law. In that case the driver parked a car in a bus zone in front of a terminal behind a parked bus. It was undisputed that he left it unattended with the key in the ignition while delivering a package within the terminal. An unauthorized person entered the car [229] to move it and in doing so struck the back of the bus in which plaintiff was standing. Plaintiff was thrown to the floor and injured. In these circumstances the court directed a verdict of negligence and liability against the driver, based on the undisputed evidence of his violation of subdivision (a) of section 1210 of the Vehicle and Traffic Law. In so doing, the court decided as a matter of law (1) that the basic requirements of the section had been violated; and (2) that the alleged violation was a proximate cause of the accident and injury. In the instant case the court did not charge that violation of the statute was a proximate cause as a matter of law but submitted that question to the jury. It charged that if the jury found that defendant was negligent in violating the statute, even though the plaintiffs’ injuries were caused by the acts of Smith, defendant might be liable for those injuries if it made the further finding that a reasonably prudent person, situated as defendant was at the time and place involved, would have foreseen the possibility of a thief stealing his automobile if the keys were left in the ignition and would also have foreseen that a thief, having stolen the car, might have recklessly driven it, thereby endangering the lives of other people on the highway. In light of this charge, and upon the record before us, disclosing that the V. P. W. field day event was attended by “infants ”, the jury was entitled to conclude that defendant’s failure to remove the key from the ignition switch was one of the links of causation which resulted in damages to plaintiffs. (Cf. Waldorf v. Sorbo, 10 A D 2d 226, affd. 9 N Y 2d 703.) Under all the facts and circumstances we conclude that the issues of defendant’s negligence and proximate cause were properly submitted to the jury and that the verdicts are supported by the proof. (Connell v. Berland, 223 App. Div. 234, affd. 248 N. Y. 641.) With regard to the charge, it is contended that fundamental error requiring a new trial, even in the absence of an exception, was committed when the trial court charged that a violation of subdivision (a) of section 1210 of the Vehicle and Traffic Law would constitute negligence, on the ground that the section referred to is inapplicable because defendant’s car was not left on a highway or on a private road open to public motor vehicle traffic. The record, however, does not support this conclusion. None of the testimony establishes that the vehicle was left in a place other than a highway or private road open to public traffic. The case was tried on the theory that liability could attach to defendant if he violated subdivision (a) of [230] section 1210 by leaving his key in the ignition or other visible location within the vehicle. No suggestion was made by defendant’s counsel at any point in the trial that section 1100 of the Vehicle and Traffic Law made section 1210 inapplicable because the vehicle was parked off a highway or private road. When the court charged the effect of a violation of subdivision (a) of section 1210, no exception was taken by defendant. Finally, no contention has been made on this appeal, either in the brief or on oral argument, that the location of the vehicle removed defendant’s conduct from the ambit of the section charged. Of course, plaintiff has had no opportunity to respond to any such claim. In view of defendant’s consistent failure to assert the inapplicability of subdivision (a) of section 1210, and the lack of affirmative proof which establishes such inapplicability, we do not believe this court should reach out and identify as fundamental error that portion of the charge, given without exception, which instructed on the statutory prohibition against leaving a vehicle unattended without removal of the key. After the verdicts had been recorded defendant moved to set them aside ‘ ‘ on the grounds that same are contrary to the weight of the evidence, contrary to the law of the case, particularly as relates to proximate cause, and in particular their finding of negligence on the part of Mr. Gorski' [sic], contrary to the weight of credible evidence in this case. ” Decision on the motion was reserved. Four days later and after due deliberation the Trial Judge who saw' and heard the witnesses refused to set the verdicts aside. We see no reason for disturbing that determination. Accordingly, the judgments should be affirmed.