This was originally published on the SGR Blog.
Was Owner of Car Liable to the Estate ?
On November 23, 2015, Sharlene Stinson was killed in an automobile collision when her car was struck by a van stolen by a teenager. The van, which belonged to Blasco Beltran, was stolen from his driveway on November 14, 2015. The estate brought a wrongful death action against Beltran, as the owner of the vehicle.
Beltran moved for summary judgment dismissing the complaint. And submitted evidence that he reported the theft to the police on November 14, 2015. The incident report from that date indicated that Beltran told the officer he had left his vehicle unlocked in his driveway. And the report also stated that Beltran told the officer that he had lost one set of keys to the vehicle weeks before the theft, but he had the remaining key.
There is a statutory presumption that a driver was using the vehicle with the owner’s express or implied permission. But evidence that a vehicle was stolen at the time of the accident will rebut the presumption of permissive use.
In a cross-motion, the estate submitted evidence that Beltran left the key to the van in the vehicle. The supplemental police report dated November 24, 2015, which referenced the key found in the van’s ignition after the accident, included a photograph of the key in the ignition. Also submitted was the sworn statement Beltran provided to the Yonkers police on December 5, 2015, after the accident, in which he stated that he left the door to his van unlocked because “neighbor kids” broke into cars to take small things and change, and he wanted to avoid them damaging the car. Also he kept a spare key under the floor mat.
The estate relied on case law holding where a plaintiff proves that the car thief who got into the accident found the owner’s car parked on a public street with its keys dangling from the trunk lock, and used the keys to steal the car, the plaintiff was found to have made a prima facie showing of entitlement to summary judgment against the car owner.
Beltran’s initial moving affidavit, as well as the police incident report from November 14, 2015, considered alone, made a prima facie showing that the permissive use presumption had been rebutted.
The rule regarding a vehicle owner’s liability for the negligence of a thief who stole the vehicle was based on the statute which provides that “no person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, [and] removing the key from the vehicle, … provided, however, the provision for removing the key from the vehicle shall not require the removal of keys hidden from sight about the vehicle for convenience or emergency.”
Consequently, the statute allowed Beltran to keep an ignition key out of sight within the vehicle.
The estate observed that Beltran had not been consistent in the information he conveyed regarding the theft. In the original incident report dated November 14, 2015, Beltran reportedly told the police officer that he was in possession of one key to the van, but had lost the other several weeks earlier. While on December 5, 2015, after the stolen van had been found with its key in the ignition, Beltran swore that he kept a spare key under the floor mat, flatly contradicting his statement as initially reported.
And the estate maintained that Beltran’s failure to make any reference to the spare key in his affidavit submitted with his initial moving papers was an omission that warranted scrutiny. Based on the contradiction, the estate submitted that Beltran’s credibility was at issue. And pointed to Beltran’s acknowledgment that he left the van door unlocked as proof that he allowed the thief’s use of his vehicle.
So Beltran submitted a further affidavit with his opposition to the estate’s cross-motion, explaining the apparent contradiction. He stated that on November 14, 2015, he told the police officer that there was a spare key underneath the floor mat, and denied telling the officer that he had lost his spare key. He suggested that, because he is a native Spanish speaker, the police officer may have misunderstood him when he was trying to explain that he thought the thief had been able to drive away because of the spare key hidden under the mat. And pointed out that he was not shown or asked to sign the report.
There was no evidence affirmatively contradicting Beltran’s assertion that the key used by the thief had been under the mat. But the Court found that Beltran’s submissions, particularly his failure to make that assertion in first moving for summary judgment, as well as the absence of any such statement in the original incident report, created an issue with regard to his credibility. So the question of whether the permissive use presumption had been successfully rebutted by Beltran, so as to allow him to avoid liability for the collision, was left for trial.
Both Beltran’s motion and the estates cross-motion for summary judgment were denied.