Lynch, Larner and Fulop. The opinion of the court was delivered by Larner, J.A.D. Fulop, J.s.c. Temporarily Assigned (concurring).
Plaintiff William E. Hill sustained personal injuries as a result of an automobile accident which occurred on October 8, 1971. The vehicle allegedly responsible for the accident was owned by defendant Judith A. Yaskin and operated by an unknown person who had stolen the same from a commercial parking lot operated by defendant Camden Parking Services, Inc. The trial judge granted summary judgment in favor of both defendants on the basis of the undisputed facts revealed by the police report and depositions.
The operative facts follow. During the morning of October 7, 1971 defendant Yaskin, pursuant to her customary practice, parked her vehicle in the parking lot owned and operated by Camden Parking Services, Inc. Although she was a monthly parker, she had no designated parking space.
She left the keys in the car so that it could be moved whenever necessary by an attendant who was present on the lot from 8 A.M. to 5 P.M.
The lot itself was closed regularly at 5 P.M. when the attendant would leave. If there were cars remaining at that time the attendant would leave them unlocked, remove the keys from the ignition and place them either above the sun visor or under the front seat. The inference from this evidence of customary practice is that the same procedure was carried out with respect to the Yaskin vehicle at the end of the work day on October 7.
Yaskin returned to the lot at approximately 7:30 to 8 P.M. and found that her car was gone. It was recovered after it had collided with plaintiff's vehicle on October 8 at 3:15 P.M. with the key in the ignition.
The parking lot, located in a "high crime area," is bounded on three sides by a building and fencing. One side is open to the street.
Plaintiff asserts that the trial judge committed error in granting summary judgment, urging that the foregoing facts spell out a prima facie case of negligence on the part of both defendants and proximate cause connecting that negligence with the occurrence of the accident. Reliance is placed on the opinion of this court in Zinck v. Whelan , 120 N.J. Super. 432 (App. Div. 1972).
In that case the court reversed a summary judgment entered in favor of the owner of a vehicle where plaintiff's injuries were caused by a thief's operation of the vehicle. The basis for the reversal was the conclusion that there was a prima facie basis for a factual finding of negligence and proximate cause arising from the proof that defendant left the unlocked car on a public street during the night with the key in the ignition.
The Zinck opinion is in conflict with an earlier opinion of the Appellate Division in Saracco v. Lyttle , 11 N.J. Super. 254 (App. Div. 1951). See, also, the concurring opinion of Judge Kolovsky in McClain v. Jones , 121 N.J. Super. 38, 42
(App. Div. 1972). Since the issue has not been determined by the Supreme Court, we are free to arrive at a conclusion based upon our independent view ...