It is a well-established fact of law that the attachment of liability in a negligence action requires an initial determination as to the presence of a duty owed to the injured by an alleged tortfeasor. Therefore, in order for a Plaintiff to properly attach liability to an owner or bailee of a motor vehicle which has been stolen by a thief, it is necessary to show that the owner or bailee of such vehicle had a duty to protect third persons.
Many jurisdictions follow the general rule that imposition of a duty is appropriate only if it can be shown that special circumstances exist which are sufficient to evoke a duty of care. Absent “special circumstances,” the owner or bailee of a motor vehicle has no duty to protect third persons against the possibility a thief will steal the vehicle and injure them with it. Richards v. Stanley (1954) 43 Cal.2d 60, 65-66 [271 P.2d 23]; See also Cruz v. Middlekauff Lincoln Mercury, Inc., 909 P.2d 1252, 1255 (Utah 1996).; Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190, 15 P.3d 1283, 1287 (2001); Smith v. Shaffer, 395 N.W.2d 853, 856 (Iowa 1986); Illinois Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 635 (Minn. 1978); Dix v. Motor Mkt., Inc., 540 S.W.2d 927, 932 (Mo. Ct. App. 1976); Felty v. City of Lawton, 578 P.2d 757, 761 (Okla. 1977).
“Considering special circumstances, then, is just another way of examining the degree of foreseeability of injury and whether the owner is subject to a duty to exercise reasonable care.” Richardson v. Carnegie Library Restaurant, Inc., 107 N.M. 688, 763 P.2d 1153, 1164-65 (1988). As with any negligence action, the specific circumstances of a case will guide the Court in its determination as to the appropriateness for application of the rule. As observed in Hergenrether v. East, 61 Cal.2d 440, 445 (1964), “each case must be considered on its own facts to determine whether the joint effect of them in toto justifies the conclusion that the foreseeable risk of harm imposed is unreasonable, and that the defendant owner or one in charge of a vehicle has a duty to third persons in the class of the plaintiffs to refrain from subjecting them to such risk.” A number of special circumstances have been specifically enumerated among the jurisdictions that have imposed a duty upon the owner or bailee of an unattended tow truck which was stolen by a thief and subsequently caused injury to a third person. For limitation purposes, this article focuses on the imposition of a duty of care to owners or bailees of tow trucks.
It is generally agreed that initial considerations concerning special circumstances involve an assessment of the dangerous characteristics of the tow truck at issue, when compared with characteristics of an ordinary vehicle. Although most commercial vehicles possess dangerous characteristics sufficient to establish special circumstances, whether or not a particular tow truck is categorized as a commercial vehicle within a jurisdiction’s vehicle code, does not immediately dispose of, nor establish a duty of care. This matter was discussed in Carrera v. Maurice J. Sopp & Son, 177 Cal. App. 4th 366 (2009), wherein the Defendants presented evidence supporting its contention that imposition of a duty upon a bailee of a tow truck was inappropriate because the tow truck did not fall within the Vehicle Code’s definition of a commercial vehicle. The court rejected the Defendants’ contention, in choosing to give greater weight to the evidence presented by the Plaintiff’s tow truck operation expert who refuted the relevance of the code as it related to dangerousness of the tow truck at issue. Accordingly, practitioners should be cautious in their reliance on vehicle code as being determinative to a presence or absence of special circumstances, and instead elect a perhaps more favorable evidentiary route of supporting contentions through the presentation of expert testimony.
Evaluation of the actual vehicle itself, including the size and weight, as well as the presence of specialized equipment, are additional factors of foreseeability, as it relates to imposition of a duty under special circumstances. Additional assessment criteria concerning the type of vehicle at issue will often include consideration as to whether or not operation of the tow truck requires specialized skill, such that it does not fall within the common driving experience.In Carrera the Defendant presented testimony at deposition from two lay witnesses who testified that the tow truck of the type involved in the case drives no differently than a pickup truck. Carrera at 381. In rejecting the Defendants’ contention, the Carrera court concluded that “the driving experience of employees of a truck service center is not reflective of the common experience,” and “[f]urther, neither of these lay opinions is entitled to the weight accorded the opinion of an expert.” Id. at 381-382.
Similarly, the presence of specialized apparatus or equipment is another factor used in the special circumstances analysis. These matters, too, were discussed in Carrera, wherein the Court’s determination was grounded upon “four cases in which the Supreme Court found special circumstances to exist—Richardson (bulldozer), Hergenrether (two-ton truck), Palma (flatbed truck), and Ballard (aerial manlift), all involved sizable vehicles “left unattended and available for use by persons unfamiliar with their operation.” (May v. Nine Plus Properties, Inc., 143 Cal.App.4th, 1538, 1549.) Richardson v. Ham (1955) 44 Cal.2d 772, 775-777 [285 P.2d 269] (Richardson); Hergenrether v. East (1964) 61 Cal.2d 440, 445-446 [39 Cal.Rptr. 4, 393 P.2d 164] (Hergenrether); Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 183-186 [203 Cal.Rptr. 626, 681 P.2d 893] (Palma); Ballard v. Uribe(1986) 41 Cal.3d 564, 573 [224 Cal.Rptr. 664, 715 P.2d 624] (Ballard). In concluding that special circumstances were present, such that imposition of a duty upon the Defendant was appropriate, the Carrera court stated:
“A tow truck, like a two-ton truck or a flatbed truck, is a sizable, powerful vehicle. It is designed to move other vehicles. Further, plaintiffs’ evidence, offered in the form of an expert opinion, indicated a tow truck has specialized equipment such as an air over hydraulic braking system, power takeoff driven hydraulic pumps, multiple valves and specialized controls, all of which require special training and skills. Also, because of the size of the tow truck and the specialized equipment on board, “the safe operation of a tow truck is not a matter of common experience.” Carrera at 381.
As demonstrated in Carrera, and similar cases arising within other jurisdictions who follow the special circumstances rule, the testimonial value of a tow truck expert is clearly beneficial. Accordingly, because establishing or negating the presence of a duty hinges on factors associated with foreseeability in regards to the potential for harm to others, a more practical approach might be the presentation of evidence by a tow truck operation expert, as opposed to broad assumptions, citation of vehicle code, or the of use of lay witnesses.
By: Alicia McKnight, J.D.