# Dix v. Motor Market, Inc.

> Missouri Court of Appeals · July 13, 1976 · 540 S.W.2d 927

URL: https://www.frixlaw.com/law-library/cases/9779104

## Case

- **Full name:** Linda Sue DIX, Etc., Et Al., Plaintiffs-Appellants, v. MOTOR MARKET, INC., a Corp., Et Al., Defendants-Respondents
- **Court:** Missouri Court of Appeals
- **Decided:** July 13, 1976
- **Citations:** 540 S.W.2d 927; 1976 Mo. App. LEXIS 2190
- **Precedential status:** Published
- **Opinion:** Dissent by Stewart
- **Judges:** Dowd, Clemens, Stewart
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9779104

## How later opinions describe it (automated extraction)

- affirming dismissal for failure to state a cause of action; allegations that other autos have been stolen in the immediate vicinity and that thieves are likely to drive negligently not sufficient to establish special circumstances or special relationship

## Opinion text

STEWART, Judge
(dissenting).
I respectfully dissent from the well-considered majority opinion.
This case comes to us upon the petition only and, as recognized in the majority opinion, we must give the petition a liberal construction and accord the petition those reasonable inferences fairly deducible from the facts stated. Scheibel v. Hillis, 531 S.W.2d 285, 289 (Mo. banc 1976).
I would approach this case by applying foundation principles of the law of negligence to the most favorable view of the ultimate facts alleged in plaintiffs’ petition, as the Supreme Court did in Zuber v. Clarkson Construction Co., 363 Mo. 532 , 251 S.W.2d 52 (1952).
The elementary principles of common law negligence are:
“ . . . (1) existence of a duty on the part of the defendant to protect the plaintiff from injury, (2) failure of defendant to perform that duty, and (3) injury to the plaintiff resulting from such failure.” (Citations omitted). Scheibel v. Hillis, supra, at 288.
Negligence depends upon the surrounding circumstances as well as the conduct involved because an act or omission which is clearly negligent in some circumstances may not be negligent in other circumstanc *934 es. Whether one should take appropriate precautions to avoid injury to another depends upon what one may reasonably anticipate. The injury to plaintiff by reason of the conduct of defendant must have been reasonably foreseeable. Zuber v. Clarkson Construction Co., supra.
As was best said in Zuber, 251 S.W.2d at p. 55 :
“ . . .if there is some probability or likelihood, not a mere possibility, of harm sufficiently serious that ordinary men would take precautions to avoid it, then the failure to do so is negligence. While the likelihood of a future happening is the test of a duty to anticipate, this does not mean the chances in favor of the happening must exceed those against it. The test is not the balance of probabilities, but of the existence of some probability of sufficient moment to induce the reasonable mind to take the precautions which would avoid it. (Citations omitted). Relating to the problem of legal or proximate causation it is restated, ‘If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.’ Restatement, Torts, § 449; Christiansen v. St. Louis Public Service Co., 333 Mo. 408 , 62 S.W.2d 828 .”
It is clearly pleaded that the keys were left in the ignition of the car and further that defendant, Motor Market, Inc., had actual knowledge and that the owner of the car and his principal knew or should have known that vehicles were frequently stolen from the garage and from the immediate vicinity of the garage, and that the car was left in a readily accessible area. A fair construction of these allegations can only lead to the conclusion that there was “some probability” that automobile thieves, known to be operating in the immediate vicinity, would steal automobiles left unattended with key in the ignition in the readily accessible area from which the 1973 Cadillac was stolen. So much so that reasonable minds would take precautions to avoid the theft.
The majority cites Gower v. Lamb, 282 S.W.2d 867 (Mo.App.1955) which would, in my opinion, tend to lend support to plaintiffs’ cause. The court there took the case as one upon an agreed statement of fact. Plaintiff did not plead that defendant knew or should have known that thief or thieves were in the vicinity. Nor was there any evidence to that effect. The court said (at 871-872):
“In the case at bar the defendant’s car was not placed in operation by a curious intermeddler, but by a thief. While under certain circumstances even this intervening act might be expectable, . yet the criminal nature of the act certainly lessens its realizable likelihood and requires that the evidence of foreseeability of the theft be clear and convincing. Following the holding in the Zuber case, we believe that the defendant was under no duty to discover the presence of a thief or thieves in the vicinity where he parked his car, and that there was no fact stipulated which pointed to actual knowledge by defendant of the presence of a thief or thieves in the vicinity.”
As we read the plaintiffs’ petition the element lacking in Gower has been supplied here.
We next consider the question of whether the negligent driving of the thief was reasonably foreseeable or whether it was an independent intervening act for which defendants would not be responsible.
As said in Scheibel at page 288:
“ . . . With respect to the problem of proximate causation, if the foreseeable likelihood that a third person may act in a particular manner is one of the hazards which makes a person negligent, such an act of a third party, whether innocent, negligent, intentionally tortious or criminal, does not prevent that person from being liable for the harm caused thereby.”
The question is simple — can one reasonably anticipate that a person who has stolen *935 an automobile will, upon being discovered by the police in that car, operate it without regard to the safety of others in order to avoid apprehension? The mere stating of the proposition would seem to be the answer in itself.
The Supreme Court of Tennessee in Justus v. Wood, 209 Tenn. 55 , 348 S.W.2d 332, 338 (1961), observed:
“It is common knowledge that a person possessed of the characteristics which would cause him to thus steal an automobile is a person who is irresponsible and totally devoid of regard for the rights and safety of others who might be using the street at the same time . .
The Supreme Court of Michigan cited statistics which indicate that the accident rate for stolen cars is approximately 200 times the normal accident rate. Davis v. Thornton, 384 Mich. 138 , 180 N.W.2d 11, 14 (banc 1970).
It is my opinion that the question of whether one could foresee the negligent operation of a yehicle by a thief in a matter upon which reasonable minds could differ and that the question thus becomes one for the trier of the facts.
In neither Richards v. Stanley, 43 Cal.2d 60 , 271 P.2d 23 (banc 1954) and Brooker v. El Encino Co., 216 Cal.App.2d 598 , 31 Cal.Rptr. 24 (1963) were there any allegations of special circumstances. As recognized in the majority opinion those cases recognize that given special circumstances the result would have been different.
The court in Richards v. Stanley gives an example when at 271 P.2d page 27 it says:
“In the present case Mrs. Stanley did not leave her car in front of a school where she might reasonably expect irresponsible children to tamper with it, see, Restatement, Torts, § 302, illus. 7 . . ”
In the case at bar, given knowledge that there is a probability of theft, do we classify the thief among the “responsible” or the “irresponsible?”
We note in conclusion that defendants Kletzker and Central Apex filed an affidavit in which they state that they were required by Motor Market to leave the keys in the car as a condition to parking their car in the garage. The court did not undertake to enter a summary judgment. We have therefore not considered the affidavit and express no opinion 'as to the liability as between the defendants.
I feel that plaintiffs’ petition has alleged sufficient ultimate facts to invoke the jurisdiction of the courts. Therefore, I would reverse.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9779104. Public record. Not legal advice.