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Hewitt v. Avis Rent-A-Car System10/25/2005
oreseeable, the defendant owed a duty to the plaintiffs to take adequate precautions to prevent the theft of its cars. Id. at 1256-57.
The court next turned to the question whether the theft broke the chain of causation between the defendant's alleged negligence and the plaintiff's injury. It observed that the criminal conduct of a thief would not necessarily preclude a finding of proximate cause if the intervening agency was itself a foreseeable act. As a consequence, the special circumstances alleged, if true, could have placed the defendant on notice that its cars were targeted by thieves, yet it continued its key-in-ignition policy, and other negligent practices. Once the car was stolen, it may have been foreseeable that it would be operated in a manner hazardous to the public. Id. at 1257.
Because of the combination of special circumstances that exist in the case at bar, i.e., the high number of thefts at Avis's downtown facility during the short span of time preceding the accident; the general access its employees had to the vehicles' keys; the absence of any safeguards by management against theft; management's failure to take prompt action despite its awareness that its employees were involved in criminal activity; its failure to promptly report vehicle thefts to law enforcement; and the knowledge that Avis had, or should have had, of the harm that often occurs from the careless operation by thieves of stolen vehicles, we conclude the question whether the defendant's conduct created a foreseeable zone of risk, giving rise to a duty to lessen the risk by taking precautions to protect others from such risk, is one reserved for the fact finder.
We conclude, for the same reasons, that although plaintiff's injuries were the immediate result of an intervening criminal act, the fact finder must also resolve the question whether such act broke the causative chain between Avis's purported negligence and plaintiff's injuries. Appellee argues that because it was not shown how the thief came to possess the vehicle, his criminal agency must be considered a superseding, intervening cause which relieved Avis from any liability. We cannot agree. "If an intervening cause is foreseeable the original negligent actor may still be held liable." Gibson v. Avis Rent-A-Car System, Inc., 386 So. 2d 520, 522 (Fla. 1980). Although it was not foreseeable that the particular automobile involved in the accident would be stolen and cause injury, such facts do not break the causative chain. " foreseeable zone of risk means conduct that foreseeably creates a broader zone of risk that poses a general threat of harm to others, rather than the extent to which such conduct may foreseeably cause the specific injury that actually occurred." Hernandez v. Tallahassee Med. Ctr., Inc., 896 So. 2d 839, 841 (Fla. 1st DCA), rev. denied, 905 So. 2d 125 (Fla. 2005). In other words, if the type of harm has in the past so frequently resulted from the same type of negligence, then "`in the field of human experience' the same type of result may be expected again." Pinkerton-Hayes Lumber Co. v. Pope, 127 So. 2d 441, 443 (Fla. 1961). The rule is moreover clear that foreseeability, as it relates to proximate cause, is generally left to the trier of fact, and if reasonable persons could differ as to whether the facts establish proximate cause, then the resolution of the issue must be left to the fact finder. Deese v. McKinnonville Hunting Club, Inc., 874 So. 2d 1282, 1287 (Fla. 1st DCA 2004).
REVERSED and REMANDED.
WOLF and WEBSTER, JJ., CONCUR.
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