Risk of personal injury after vehicle stolen by two minors from commercial garage found not to be reasonably foreseeable.
The Supreme Court of Canada has weighed in on the duty of care owed by a business that stores vehicles to someone who is injured following the theft of a vehicle. This case arose after two teenagers drank alcohol, smoked marijuana, stole a vehicle from an unsecured car garage in town and subsequently crashed the vehicle. The passenger in the vehicle suffered a catastrophic brain injury and commenced a lawsuit against the driver, the driver’s mother (who supplied some of the alcohol) and the commercial car garage.
The issues the Court weighed in on were as follows:
- Was the risk of personal injury reasonably foreseeable in this case?
- Did the garage have a positive duty to guard against the risk of theft by minors?
- Could illegal conduct sever any proximity or negate a prima facieduty of care?
Was the Risk Reasonably Foreseeable?
The Court commented that the foreseeability question must be framed in a way that links the impugned act (leaving the vehicle unsecured) to the harm suffered by the plaintiff (physical injury). It was not enough simply to determine whether the theft of the vehicle was reasonably foreseeable. The proper question to be asked was whether the personal injury suffered was reasonably foreseeable to someone in the position of the defendant when considering the security of the vehicles stored at the garage.
The Court noted that the evidence did not suggest that a vehicle, if stolen, would be operated in an unsafe manner, failed to address the risk of theft by a minor, and failed to address the risk of theft leading to an accident causing injury. To find a duty, there must be some circumstance or evidence to suggest that a person in the position of the defendant ought to have reasonably foreseen the risk of injury — that the stolen vehicle could be operated unsafely.
While in this case, it was argued that it was the risk of theft by minors that could make the risk of the unsafe operation of the stolen vehicle foreseeable, had there been other evidence or circumstances making the risk of personal injury reasonably foreseeable, a duty of care would exist.
Duty to Guard Against Risk of Theft by Minors
Although there was no need to address this given the conclusion that the injury was not reasonably foreseeable, the Court provided commentary on this issue. It was argued that the commercial garage was analogous to a commercial vendor of alcohol who has a duty to those who may be harmed by the damage caused by an intoxicated patron. The Court remarked that this analogy was misguided. While a garage benefits financially from servicing cars, they do not profit from or encourage the persons who steal cars. Having many vehicles does not necessarily create a risk of personal injury.
Additionally, the mere fact that the plaintiff was a minor was insufficient to establish a positive duty to act. Tort law does not make everyone responsible for the safety of children at all times.
Could Illegal Conduct Sever / Negate Duty of Care?
Although there was no need to address this given the conclusion that the injury was not reasonably foreseeable, the Court provided commentary on this issue. The notion that illegal or immoral conduct by the plaintiff precludes the existence of a duty of care has consistently been rejected by the Court. Whether the personal injury caused by unsafe driving of the stolen car is suffered by the thief or a third party makes no analytical difference to the duty of care analysis.
The Court concluded that, while the risk of theft was reasonably foreseeable, the evidence did not establish that it was foreseeable that someone could be injured by the stolen vehicle. There was no evidence to support the inference that the stolen vehicle might be operated in an unsafe manner causing injury. It concluded that a business will only owe a duty to someone who is injured following the theft of a vehicle when, in addition to theft, the unsafe operation of the stolen vehicle was reasonably foreseeable.
The Court made it clear that its decision was based on the evidentiary record in this case. This is not to say that a duty of care will never exist when a car is stolen from a commercial establishment and involved in an accident. Another set of facts and evidence may establish that the business ought to have foreseen the risk of personal injury. In this case, the plaintiff only established a risk of theft in general. However, there was nothing to connect the risk of theft of the car to the risk of someone being physically injured.
case has liability implications for both personal and commercial auto insurers. The Court did not accept that anyone that leaves a vehicle unlocked with the keys in it should always reasonably anticipate that someone could be injured if the vehicle were stolen, noting this would extend tort liability too far. Physical injury is only foreseeable when there is something in the facts to suggest that there is not only a risk of theft, but that the stolen vehicle might be operated in a dangerous manner. A commercial entity will not be held liable simply because it failed to properly secure vehicles on its premises. The Court has made it clear that plaintiffs must now jump an additional hurdle in order to establish a duty of care against an owner / entity with possession of a vehicle after the vehicle is stolen and personal injury ensues.
See Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19.