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Hewitt v. Avis Rent-A-Car System10/25/2005
egligently operates the stolen vehicle. In Vining v. Avis Rent-A-Car Systems, Inc., 354 So. 2d 54 (Fla. 1977), an Avis rental car left unattended in its parking lot at an airport with its keys in the ignition, its door open and the car lights flashing, was stolen, and later collided with plaintiff's vehicle. The area around the airport had the highest incidence of auto theft in the county; Avis had had vehicles stolen in the past; and statistics showed a strong correlation between automobile thefts and automobile accidents. In concluding that the complaint alleged facts sufficient to establish a cause of action, the court concluded, under the circumstances, that risk of injury to another person was foreseeable. Id. at 56.
Although Vining predicated its decision in part on Florida's unattended-motor-vehicle statute, section 316.097, Florida Statutes (1975), directing all operators of vehicles in the state not to leave a vehicle unattended without removing the key, we do not read Vining as precluding a plaintiff from bringing a common-law right of action based upon a defendant's conduct which foreseeably creates a zone of risk to the plaintiff. In reaching its decision, the court cited Nicholas v. Miami Burglar Alarm Co., Inc., 339 So. 2d 175, 177 (Fla. 1976), which involved a negligence action brought by the owner of a tobacco warehouse against a burglar alarm company for damages sustained in the burglary of the warehouse when the alarm company failed to inform police of a telephone-circuit disruption signal which its employees had received. The court reasoned that if an intervening criminal act is foreseeable, the chain of causation is not broken and the original negligence may be the proximate cause of the damages suffered. Id.
The analysis of the Utah Supreme Court in Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252 (Utah, 1996), appears to be consistent with Florida law on the questions of whether Avis owed a duty to plaintiff, and, if so, whether the breach of such duty proximately caused plaintiff's injuries. There, in addressing the issue of a car owner's liability in a key-in-ignition action, the court commented, similar to Florida courts, that a duty may exist where a defendant should reasonably anticipate that its conduct would create an unreasonably enhanced danger to one in the position of the injured plaintiff.
The facts in Cruz show that in addition to the automobile dealer leaving its automobile, which was involved in the accident, unlocked with its key in the ignition, numerous prior thefts of vehicles on the lot had occurred, and that no surveillance or security existed, even during evening hours. The court concluded: "If these unusual circumstances can be proved, a fact finder could determine that the theft was foreseeable." Id. at 1256. The court noted that the foreseeability of the theft did not by itself create a duty the automobile dealer owed to the plaintiffs, but that a duty arises only if it is foreseeable that the thief-operated car would be recklessly or negligently driven and cause injury or death to members of the public. Id. Plaintiffs had alleged it was foreseeable that a thief who took one of the defendant's cars would attempt to evade capture by fleeing a police officer at high speed, which could result in serious injury to an innocent motorist. The court observed that evidence established in other cases showed that thief-driven vehicles often collide with third persons, causing injury and death, because a thief primarily concerned with avoiding detection and arrest often disregards traffic laws, endangering pedestrians and motorists alike. The court thereupon concluded that because the theft of the car and its negligent operation may have been f
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