When do people owe a duty of care to a thief that steals their car? In the recent Ontario Court of Appeal case J.J. v. C.C., 2016 ONCA 718 the Court dealt with just that question.
Two teenagers in the small town of Paisley (with a population of less than 1,500) stole a car at a local garage: Rankin’s Garage & Sales. The mother of the driving teenager had given them both alcohol and left them to their own devices on a summer evening in 2006. Bored, and ready to get into trouble, the two teens walked around Paisley with the intent of stealing things from unlocked cars.
The two teenagers, aged 15 and 16, found Rankin’s Garage unlocked and were able to steal a Toyota Camry that still had the keys left in the ashtray. C.C., drunk, unlicensed and inexperienced, drove the vehicle while his friend J.J. got in the passenger’s seat. While joyriding to pick up a friend in the nearby town of Walkerton, the two got into a serious car accident. J.J. suffered a serious brain injury and sued C.C., Rankin’s Garage and C.C.’s mother for negligence.
At trial the jury found Rankin’s Garage was negligent for leaving the car unlocked, leaving the keys in the car and that it ought to have known the potential risk of theft from young kids in the neighbourhood. The jury found J.J. contributorily negligent for willingly getting into a stolen car driven by C.C. who he knew did not have a driver’s license and who was impaired at the time. The jury found C.C. negligent for drinking underage, not having a driver’s license, stealing a car and operating it impaired.
The jury apportioned liability on Rankin’s Garage at 37%, C.C.’s mother at 30%, C.C. at 23% and J.J. at 10%.
The Court of Appeal and the Foreseeability Standard
The Court of Appeal upheld the trial decision and found that the garage owed a duty of care to the teenagers. Justice Huscroft, writing for the majority, found it reasonably foreseeable in the circumstances that minors might steal an unlocked car with keys in it and injure themselves doing so. Justice Huscroft stated that the notion an innocent party might owe a duty of care to someone that steals from it might seem extravagant but that it may arise in certain cases where it is foreseeably reasonable.
The Court reviewed that the mere possibility something may occur is insufficient to establish reasonable foreseeability that it will occur but, at the other end of the spectrum, absolute foreseeability is not required.
The key facts for the Court of Appeal in finding the theft was foreseeable were:
- Rankin’s Garage was easily accessible with virtually no security measures taken;
- the stolen car was left unlocked with the keys in it;
- Rankin’s Garage regularly left cars unlocked with the keys in them;
- customers of the garage were told to leave their car keys in the car;
- there was a history of theft in the area and from Rankin’s Garage; and
- newspaper and radio warnings of car theft were used regularly in the neighborhood;
Why the Decision is Important
J.J. v. C.C. shows that where there is a history of a particular malady in the area and the defendant does not do anything to prevent it, the Court can find foreseeability. The case reinforces that vehicle owners must have proper security measures to prevent theft by parties who are unable to operate them. It is clear the duty would have been met in this case by locking the vehicles and securing the keys. The finding of proximity between the plaintiff and Rankin’s Garage seems particularly odd. C.C. and J.J. had never attempted to steal before and they were not known to Rankin’s Garage. It may be a sign that proximity is easier to find in smaller communities, especially where there is a well-known malady affecting the community.