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Berko v. Freda

Decided: January 8, 1980.

JOHN BERKO, PLAINTIFF,
v.
RALPH FREDA AND PAUL HARRIGAN, DEFENDANTS, AND RALPH FREDA, THIRD-PARTY PLAINTIFF, V. JOHN DOMBRAUSKAS, THIRD-PARTY DEFENDANT



Griffin, J.s.c.

Griffin

Defendant Freda left his keys in his car. It was stolen. Police Officer Berko, plaintiff, having received a report by radio, saw the car and gave chase. He contends that his police car was intentionally rammed three times and that the thief, after the cars were stopped, intentionally stepped on the accelerator while he had his arm in the open door. Officer Berko was dragged and injured.

Defendant's motion for summary judgment is based on two theories. Neither has been previously considered in any reported New Jersey decision.

I

Is defendant, who left his keys in the car, liable for intentional injuries inflicted by use of the car?

An owner who has left his keys in a vehicle has been held liable for the negligent acts of the thief. Hill v. Yaskin , 75 N.J. 139

(1977); Zinck v. Whelan , 120 N.J. Super. 432 (App.Div.1972). Both these cases cited the rising statistics of car thefts as a result of keys being left in the ignition and the extraordinary correlation between thefts and accidents. This court knows of no such correlation between car theft and the use of the car as an instrument of intentional tort.

The basic test of negligence is foreseeability. Both Hill and Zinck, supra , held that the question should be left to the jury when the thief's negligence resulted in injury.

The intervening criminal act of a third person does not insulate a defendant if such intervening act is reasonably foreseeable. A landlord has been held liable for the criminal act of a burglar in a case where the landlord failed to repair a door lock after a request by the tenant. Braitman v. Overlook Terrace Corp. , 68 N.J. 368 (1975). In Braitman it was held reasonably foreseeable that a defective lock might be a factor in a burglary. However, a case closer to this situation is Dwyer v. Erie Investment Co. , 138 N.J. Super. 93 (App.Div.1975). Plaintiff was a subcontractor installing some plumbing fixtures in a building owned by the defendant. Plaintiff was working on the second floor of the building. Some time before the date of the incident complained of, plaintiff had discovered a hole on the outside of the building between the first and second floors. This hole was large enough for a man to crawl through and thus gain entrance to the offices inside the building. There was also evidence to indicate that the building was in an urban area with a considerable amount of crime. Plaintiff saw a man emerging from the hole in the outside of the building. When plaintiff's demand that the man identify himself went unanswered, he grabbed a metal garbage can and hurled it at the intruder. The suspected burglar then fired a gun at plaintiff, wounding him. The Appellate Division affirmed the dismissal of the complaint. Essentially, the court concluded that while it may have been foreseeable that a burglar would enter the building through the hole, it was not reasonably foreseeable that the burglar would

shoot the plaintiff as he was leaving the premises. As Judge Larner reasoned:

Perhaps it was foreseeable because of the failure to repair the hole in the wall that an intruder or burglar might utilize that hole to enter the premises. It is, however, beyond the scope of reasonable foreseeability for a property owner to anticipate that an intruder would exit from that opening and use a gun from outside the building to injure a person performing work inside the building. In simple terms, the presence of the hole as such is too remote to be considered as a causative factor of the act of shooting which took place outside the structure. Reasonable men and women on a jury could ...


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