Cars get stolen all the time. Its not uncommon. It’s a criminal act. But what happens when the person who stole the car, meets with an accident, damaging third party property. Could the car owner be held liable for such an incident? Also, if held liable, would your auto insurer cover that liability?
In Rankin (Rankin’s Garage & Sales) v. J.J., 2018, two friends, both minors, made their way to a commercial car garage that was not secured after they had been smoking marijuana and drinking. They stole a vehicle from the unlocked garage after finding its keys in the car ashtray. Without a driver’s licence or any previous driving experience, one of the boys drove the car (with the other boy in the passenger seat) out of the garage, and the car crashed on the highway. The boy in the passenger seat suffered a catastrophic brain injury. An action was brought by the boy who suffered the injury against, inter alia, the car garage in negligence. At trial, it was held that the garage owed a duty of care to the boy. However, the Supreme Court of Canada dismissed the claim against the garage. Presented below are a few points that were discussed by the Supreme Court of Canada in reaching this interesting, but not unanimous conclusion:
While the risk of theft was reasonably foreseeable, the evidence did not establish that it was foreseeable that someone could be injured by the stolen vehicle.
A business will only owe a duty to someone who is injured following the theft of a vehicle when, in addition to theft, the unsafe operation of the stolen vehicle was reasonably foreseeable.
In Richard v. Manuel et al, 2019, the Court of Queen’s Bench of New Brunswick discussed a similar situation.
In the evening of March 31st 2017, at around 2100 hours, one of the defendants, Mr. Gorman, left his taxi (operated under Gorman Taxi) unattended in the driveway of the garage/car wash for few seconds, with keys inside, while closing the garage/car wash premises owned/operated by the taxi owner, at the end of his work day.
After securing the premises, he came out to observe his vehicle beginning to move forward in front of the garage. He opened the passenger door and realized the operator was someone he did not know, and that person was in the process of stealing his car. In-spite of his attempts to stop the vehicle from being stolen, the vehicle quickly sped up causing Mr. Gorman to fall out onto the parking lot as the thief drove away. The matter was immediately reported to the local authorities and a police pursuit began.
During the police chase, the thief lost control over the vehicle and the same was rammed into a third-party home, causing significant damages to the home of the plaintiff.
Mr. Gorman had no theft insurance on his car to compensate him for the accident that happened after the theft took place. That accident resulted in his vehicle being damaged beyond repair.
The uninsured home owner brought an action against, inter alia, Mr. Gorman.
SUMMARY JUDGMENT MOTION
A summary judgment motion was brought by Mr. Gorman, asking that he be relieved of any further involvement in this action, i.e., requesting dismissal of action against him.
POSITION OF THE PARTIES
Mr. Gorman has tortuous liability for having had his car stolen.
He is not liable for this incident that occurred after theft of the vehicle.
Should Mr. Gorman be granted summary judgment as there is no genuine issue requiring trial?
Under tortuous liability, the test of foreseeability and proximity go hand in hand. The question(s) is/are:
· Could Mr. Gorman have reasonably foreseen that his vehicle could have been stolen by leaving his vehicle unattended for a few seconds? and If so,
· Could he have reasonably foreseen that the driver would drive dangerously while being pursued by police and would ram it into a third-party property damaging it seriously?
The court analysed the case based on the test outlined in Rankin (Rankin’s Garage & Sales) v. J.J., 2018.
The court stated that the question is not simply whether the theft of the vehicle was reasonably foreseeable but:
The proper question to be asked in this context is whether the type of harm suffered – personal property injury - was reasonably foreseeable to someone in the position of the defendant [Mr. Gorman] when considering the security of the vehicles stored at the garage (Rankin at paragraph 24) or in this instance left momentarily unattended but shut off in the private driveway of Gorman’s Taxi?
The owner of a motor vehicle, or farm tractor is liable as well as the driver thereof to an action for tort as a result of negligence in the operation of the motor vehicle or farm tractor unless the motor vehicle or farm tractor was at the time of the negligent operation thereof in the possession of some person other than the owner without the owner’s consent.
Granting the summary judgment and dismissing the action against Mr. Gorman, Fred Ferguson J.C.Q.B., writing for the court, stated:
The effort to ensnare Mr. Gorman in this litigation fails the test of reasonable foreseeability and proximity.
Reasonable foreseeability of harm and proximity operate as crucial limiting principles in the law of negligence. They ensure that liability will only be found when the defendant ought reasonably to have contemplated the type of harm the plaintiff suffered, in this instance the combined effect of theft of the vehicle, later loss of control of the vehicle by the thief operating it and the damage causing crash of it, unfortunately, into the uninsured home of the Plaintiff, Mr. Richard.
There is an interesting decision that I came across while reviewing this one. In Provost v Bolton, 2017, the Supreme Court of British Columbia held the car dealership liable to an extent who was found to have breached the standard of care in leaving the truck running and unlocked. The truck was stolen and caused injuries, inter alia, to the constable who was chasing the truck to apprehend the thief. The constable alleged that the dealership and an employee was negligent in leaving the truck available to be stolen. The Truck was left outside the dealership detail bay by an employee with the keys in the ignition, the engine running, and the doors unlocked.
The above case was before the time of Rankin. Could the result be different now, based on a different set of tests provided by the SCC in Rankin?