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Carrera v. Maurice J. Sopp & Son (Cal. Ct. App. - Sept. 3, 2009)

By Shaun Martin

Here's a great case decided by the California Cout of Appeal earlier today that encapsulates both a variety of policy/doctrinal choices as well as exemplifies how not-so-easy being a judge is even you're in fact a "pure referee" who's merely "calling balls and strikes." (Hat tip: Chief Justice John Roberts, who came up with this only-true-sometimes analogy.)

Longstanding California legal principles say that 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. But there's also a specific California Supreme Court case (Avis) that says that "?special circumstances? exist when heavy vehicles are left unattended and available for use by those not accustomed to driving them."

So here's the question. Ray Bermudez, released on parole earlier that day, gets drunk on his bus to L.A., hops off in Huntington Park, enters a tow truck shop through an open gate, spies a tow truck with the keys left in the ignition, steals it, and promptly runs over numerous people at a bus stop. Is the tow truck shop liable?

(For what it's worth, Bermudez himself gets convicted of three counts of murder, and is sentenced to 140 to life. But he's penniless (obviously), and this is a civil case, so all we care about at this point is whether the tow truck shop has to pony up.)

Whatcha think? The trial court said it "struggled" with this tough case, but ultimately granted summary judgment to the shop. Does it matter that no vehicles had ever previously been stolen from the shop in its 31-year history? Does it matter that the security cameras showed that Bermudez had no trouble at all hopping in the tow truck and starting it? Does it matter that there were two cars stacked behind the tow truck and that Bermudez got out of the lot by smashing a couple of cars and driving through a canopy (though some of this, I think, was not actually necessary, but was because he was drunk)? Does it matter that the theft was in broad daylight in an occupied lot with many employees around? Does it matter that Huntington Park has, to use the words of Justice Klein, a "high transient population" -- moreover, that H.P. has the highest rate of vehicle theft in the nation?

Which way do you come out? Plus, even if you're leaning one way or the other, procedurally, what do you do? Do you grant summary judgment to the shop? Grant summary judgment to the plaintiffs? Let a jury decide -- even though the actual facts are entirely undisputed?

I'll leave you to it. But don't forget to check out the last page of the opinion. A photograph captured from the security camera showing the tow truck, driven by Bermudez, dragging the lot's canopy as it crashes out of the lot. Fuzzy, but a cool (and definitely unusual) way to end an opinion.

Full post as published by California Appellate Report on September 03, 2009 (boomark / email).