For reversal and remandment -- Chief Justice Hughes and Justices Clifford, Schreiber and Handler. Concurring in part and dissenting in part -- Justices Mountain, Sullivan and Pashman. The opinion of the court was delivered by Clifford, J. Sullivan, J. (concurring in part and dissenting in part). Justices Mountain and Pashman join in this opinion.
Plaintiff William E. Hill,*fn1 a Camden police officer, was injured on October 8, 1971 when his police car collided with a vehicle which he was pursuing. The vehicle, owned by defendant Judith A. Yaskin, had been stolen the previous day from a parking lot operated by defendant Camden Parking Services, Inc. (Camden Parking). Suit was commenced against Yaskin and Camden Parking bottomed on the admitted fact that the ignition key had been left in the vehicle while it was parked in the lot. Specifically, the Complaint charged that defendant Yaskin "so negligently and carelessly allowed her motor vehicle to be * * * unattended, so as to allow the unknown driver to take and use the same." As to defendant Camden Parking the charge was that the Yaskin vehicle had been left unattended, with the keys placed in the ignition, on the specific instructions of the lot owner, and that this conduct on the part of Camden Parking constituted negligence.
The trial court granted summary judgment in favor of both defendants and the Appellate Division affirmed, 138 N.J. Super. 264 (1976). This Court granted certification. 70 N.J. 279 (1976).
Aside from the essentially unrevealing police report, the only factual information before us to flesh out the allegations of the Complaint comes from the depositions of the
parties. These reveal that on October 7, 1971, defendant Yaskin parked her car in defendant Camden Parking's lot, located in a high crime area, across the street from the building in which she maintained her law office; that although she was a monthly customer, no designated space was reserved for her; and that she was obliged to leave the key in the ignition so the attendant could move it when necessary. We learn further that inasmuch as the lot closed regularly at 5:00 P.M., at which time the attendant departed, any car remaining in the lot at that hour was left with the key under the floor mat or over the visor, with the car doors unlocked. It is to be inferred that this practice was followed on the day in question.*fn2 When Yaskin went to the lot at about 7:30 or 8:00 P.M., her car was not there and she reported it stolen. The next day plaintiff, while on patrol duty, spotted the car with some youngsters in it. A chase ensued, ending in a collision between the two vehicles.
The depositions also disclose that defendant Yaskin was familiar with the parking routine described above. In addition, despite the fact that she had an extra set of keys, she "never thought of" instructing the attendant to lock her vehicle in the event she did not return for it before he departed. The manager of Camden Parking admitted in his deposition that in the past there had been problems with vandalism and theft of cars from this lot. And while Yaskin disputed it, there was testimony indicating that her automobile had previously been stolen from this same lot on at least one prior occasion and perhaps twice before.
The Appellate Division held that "in the absence of other distinguishing factors, an owner of a stolen vehicle is not liable for the consequences of the negligent acts of a thief merely because he parked his car with the key therein." 138 N.J. Super. at 268. With reference to Camden Parking, that court concluded that the lot operator had the right to conduct its business during certain hours and that neither the 5:00 P.M. closing time nor the arrangement to leave the keys to accommodate late customers could be "considered in the context of a breach of duty to a third party stranger injured by the intervening act of a felon." 138 N.J. Super. at 269.
While this Court has not yet had occasion to consider the question, there are two decisions of our Appellate Division which are in direct conflict regarding the liability of a person who parks a car on a public street with the key left in the ignition and the car is thereafter stolen and becomes involved in an accident. In Saracco v. Lyttle, 11 N.J. Super. 254 (App. Div. 1951) it was held that no jury issue of liability was presented as it was not reasonably to be anticipated that an intermeddler would not only drive the car away but also would later negligently operate it. However, Zinck v. Whelan, 120 N.J. Super. 432 (App. Div. 1972), decided some 21 years later, rejected Saracco's rationale and instead held that a jury question of liability was presented where a defendant parked the car overnight, unlocked, with the key left in the ignition and the car was stolen and became involved in an accident.
In the present case, in absolving the car owner of responsibility, the Appellate Division stated that it disagreed with the decision in Zinck, supra, and added that it was not convinced that it was fair or just to hold an owner responsible for the consequences of the acts of a car thief. 138 N.J. Super. at 267. We reverse.
What the issue before us comes down to is whether there was a duty owed to plaintiff by either defendant or both of them. Our approach to this question is taken with an
abiding awareness that summary dispositions should be upheld only where there exist no issues of material fact, Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 74 (1954), and that all legitimate inferences must be drawn in ...