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Keith v. Valdez2/20/1997
d drugs among its employees.
Under these circumstances, there would be a risk that a Keystone van could be stolen or "borrowed" without permission by Keystone employees or guests. The alleged twenty-four hour a day access to van keys would make it more likely that a van would be taken by an unauthorized person. Further, a van could be taken by someone with a good driving record but in an impaired state, as occurred here, or by anyone, perhaps even one not licensed to drive, who had access to the room in which the keys to the vans were stored.
Given the youth of Keystone's seasonal employees and the "party-like" atmosphere alleged to be present, coupled with the easy access to the vehicles, it would be foreseeable that someone would be tempted to take a vehicle for unauthorized personal use under circumstances in which he or she would pose a danger to the public. The foreseeability and likelihood of such injury may well outweigh the social utility of Keystone's alleged conduct in providing unrestricted and unmonitored access to the keys of its vehicles.
Finally, neither the magnitude of the asserted burden of guarding against harm, nor the consequences of placing the burden on Keystone of acting with reasonable care in restricting and monitoring the use of its vehicles, are so great that it would be improper to find that a duty would exist under the circumstances alleged to be present. See Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo. 1987) (fast food restaurant in high crime area has legal duty to take security measures to protect patrons from criminal acts).
We note that, generally, one who leaves keys inside a vehicle is not liable to a person injured by the negligence of a thief who steals it. See Annot., Liability of Motorist Who Left Keys in Ignition for Damage or Injury Caused by Stranger Operating Vehicle, 45 A.L.R.3d 787 (1972). However, some jurisdictions have applied the "special circumstances doctrine" to create an exception to this general rule and have imposed a duty of care in circumstances similar to those alleged to be present here, i.e., where there is a foreseeable risk of theft of vehicle keys accompanied by likelihood of injury resulting from unauthorized use of the vehicle. See Illinois Farmers Insurance Co. v. Tapemark Co., 273 N.W.2d 630 (Minn. 1978) (defendant under duty to prevent injury if aware or should be aware of circumstances that increase probability car will be stolen, thief likely to operate car negligently, and consequent injury to third party will result); Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252 (Utah 1996) (although vehicle owner not ordinarily liable to third parties injured by negligent driving of a thief, liable if theft and subsequent negligent driving foreseeable).
Thus, we conclude that if on remand Keith proves her allegations, Keystone owed her a common law duty to exercise reasonable care to avoid the injuries she sustained. If, on retrial, Keith establishes some, but not all, of her allegations, the trial court must then determine, on the basis of the principles set forth herein, whether Keystone owes her a legal duty. See Taco Bell, Inc. v. Lannon, supra. If a duty is found to exist, then the finder of fact must determine whether there was a breach of such duty.
Because of our Disposition, we need not address the other issues raised by Keith.
The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.
JUDGE CRISWELL and JUDGE MARQUEZ concur.
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