Labrecque, Kolovsky and Matthews. The opinion of the court was delivered by Labrecque, P.J.A.D. Kolovsky, J.A.D. (concurring).
Plaintiff Sylvia McClain appeals from a judgment in favor of defendant Eugene Jones based upon an order granting summary judgment.
Plaintiff sued for injuries sustained when she was struck by an automobile owned by Jones and driven by defendant Robert Ponczek. Considered in the light most favorable to plaintiff the facts are that Jones had parked his 1959 Cadillac in a shopping center parking lot in Jersey City at about 5 P.M. while he transacted some business in one of the stores. Some time thereafter Ponczek, who was 14 years old, noticed the car door unlocked. When he entered the car he found that, while the key had been removed from the ignition lock, the lock itself was in such a position that he was able to turn it by means of a screwdriver and get the car started. After taking his girl friend for a ride he parked the car overnight near his home. In doing so he turned the ignition switch "all the way off," thus locking it.
When Ponczek sought to start the car the following morning he was unable to turn on the ignition through the use of the screwdriver. After a search with the aid of a flashlight he found a key under the front seat which fitted the ignition switch. He then started the motor and drove off with three companions. Later, in the afternoon, he drove the car onto the sidewalk, striking and severely injuring plaintiff.
The key was never produced. Immediately after the accident Ponczek told the police that he had left it in the ignition, but in his deposition he testified that he had taken it out of the ignition and did not recall what he had done with it.
In granting summary judgment the trial judge followed Saracco v. Lyttle , 11 N.J. Super. 254 (App. Div. 1951).
Plaintiff argues that that case has since been overruled, in part at least, by Zinck v. Whelan , 120 N.J. Super. 432 (App. Div. 1972), which mandates a reversal.
In Zinck c. Whelan defendant-owner's car was left parked with the key in the ignition switch. Early on the following morning Whelan, a 17-year-old, found the key in the ignition and appropriated the car. Two days later, while the car was being driven by Whelan some 50 miles from the scene of the theft, he collided head-on with the plaintiffs. In that case, after a review of the authorities, it was noted:
A study of the authorities cited above makes it evident that basically the key to duty, negligence and proximate cause in the fact-pattern under review is the foreseeability vel non to a reasonable man of an unreasonably enhanced hazard , when a motor vehicle is left unlocked in a public place with key in the ignition, of both the theft or misappropriation of the vehicle and an ensuing mishandling of it by the taker with death, injury or destruction of property of others lawfully using the highways as the result. If there is such foreseeability, then, on principle, particularly in the light of the minimal social utility of the causative conduct of the possessor of the car, a duty arises toward the members of the public using the highways, its breach is negligence, and the injury is the proximate result of the breach, or so a jury should be permitted to find in the generality of the cases. See, generally, Prosser, Torts (3d ed. 1964), 148, 149, 151, 173, 311 et seq.
Nothing stated hereinabove is intended to imply that a factfinder could not reasonably return a verdict for defendants in the present case or that the evidence in some comparable situations might not possibly justify even a judgment for defendant as a matter of law. Findings as to either negligence or proximate cause, whether by factfinder or by the court as a matter of law, must depend on the entire circumstantial spectrum revealed by the proofs in a particular case.
Whether considered from the standpoint of negligence or proximate cause, we are convinced that Zinck v. Whelan does not apply and that the grant of summary judgment was proper. Here ...