SCOTT L. CLARK, APPELLANT,
v.
LINDA ANN MERRITT, APPELLEE

Fla. 5th DCA | 1985-10-31
No. 84-859
DAUKSCH and SHARP, JJ., concur.
480 So. 2d 649 Florida District Court of Appeal, Fifth District (1985) Caution
Cited by 8 cases

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Synopsis

The court held that the owner of a truck was not liable for injuries caused by an intoxicated individual who stole the truck because the truck was attended and the theft was not a foreseeable intervening criminal act.


Holding

The owner of the truck was not liable for the injuries sustained by the plaintiff because the truck was not left unattended, and the theft by an intoxicated individual was not a foreseeable intervening criminal act.


Headnotes

[1] A motor vehicle owner is not liable for injuries caused by an intoxicated person stealing the vehicle if the vehicle was attended and the intervening criminal act was not…

[2] A vehicle is considered attended when a person is within fifteen feet of it and actively monitoring its security.

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Facts & Procedural History

The owner left his truck with keys in the ignition at a marina while he went inside. Another person remained outside and in view of the truck. An into…

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Opinion of the Court
THOMPSON, Associate Judge.

THOMPSON, Associate Judge.

The appellant, Scott L. Clark, appeals a judgment obtained against him on the basis that he negligently left a motor vehicle unattended with the keys in its ignition, resulting in injury to the plaintiff, Linda Ann Merritt. Pursuant to jury trial, a verdict found Clark 5% negligent, the plaintiff Merritt 1% contributorily negligent, and the principal tortfeasor, one Larry Smith, 94% negligent. Damages were assessed at $150,000.00.

The underlying facts are as follows: Clark, accompanied by his wife and another couple (Vernon Haskins and Merritt), towed his new boat, a sixteen-foot Ski Nau-tique, via a pick-up truck and trailer, to Crow’s Bluff Marina for an outing on the St. Johns river. They parked outside the marina. Scott left the truck key in the ignition, while he and Haskins went inside the marina, leaving Katherine Clark and Merritt in the boat, where they were making sandwiches for the trip. When Has-kins returned, he noticed the co-defendant, Larry Smith, standing by the truck. Smith was obviously intoxicated. Haskins became suspicious and walked over and locked the passenger door of the truck, but did not remove the ignition key. He then sat on the edge of the boat and ate a hot dog. As he watched, Smith walked around the front of the truck, made a quick move and entered the truck through a half-open door on the driver’s side. Haskins immediately hollered at Smith and ran toward the truck. Smith hit Haskins with his left hand, threw Haskins from the truck and drove off with the boat in tow. Linda and Katherine remained in the boat. Eventually, the boat became separated from the trailer, rolled over and injured both women.

Section 316.1975, Florida Statutes (1981), reads in pertinent part:

No person driving or in charge of any motor vehicle except a licensed delivery truck or other delivery vehicle while making deliveries, shall permit it to stand unattended without first stopping the engine, locking the ignition, and removing the key. ¡.. (Emphasis supplied.)

The appellee relies upon the case of Vining v. Avis Rent-A-Car Systems, Inc., 354 So. 2d 54 (Fla.1977). Vining changed Florida law to allow an owner of a vehicle to be held liable if a thief steals the automobile where the keys have been left in the ignition, and someone is hurt. The “key” is that the vehicle must be “unattended” and the intervening criminal act must be foreseeable.

The facts clearly show that the truck was in view of Haskins, Katherine Clark and appellee for the total time that it was parked at Crow’s Bluff Marina. The actions of Haskins, who was in and out of the truck while appellant was away, show that precautions were taken to secure and watch over the truck. The truck was attended. The unrebutted facts show there was a member of the party within fifteen feet of the truck at all times.

Foreseeability does not mean “what might possibly occur.” See Bryant v. Jax Liquors, 352 So. 2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So. 2d 710 (Fla.1978). Rather, in this case, the question is whether the intervening criminal act of defendant Smith in quickly entering the truck, after one door was locked to prevent his entry and while he was being watched by a man fifteen feet away, was foreseeable. Nicholas v. Miami Burglar Alarm Co., Inc., 339 So. 2d 175 (Fla.1976). It was not.

In contrasting this case with Vining, we note the dissimilarities. In Vining the car was parked in an area with the highest car theft rate in Dade County. There was no testimony of any prior auto thefts at the marina in the present case. In Vining there was no one left with the automobile. In the case sub judice, three people were within fifteen feet of the vehicle. Finally, in Vining there was testimony that Avis had had cars stolen from the Dade Airport previously, putting Avis on notice as to the problem. Appellant had no such notice. In fact, there was no testimony as to any unusual prior criminal activity at the location. See Paterson v. Deeb, 472 So. 2d 1210 (Fla. 1st DCA 1985). The vehicle was attended; therefore, the appellee should not have benefit of section 316.1975, Florida Statutes.

The trial court’s denial of the appellant’s request to interview the jury based upon allegations of improper consideration of the finances of Smith and appellant was proper. There were no extrinsic reasons presented for the interview. See Kirkland v. Robbins, 385 So. 2d 694 (Fla. 5th DCA 1980), review denied, 397 So. 2d 779 (Fla. 1981); Fla.R.Civ.P. 1.431(g). The court may not investigate the subjective thought processes of a juror after a verdict is rendered. See Marks v. State Road Dept., 69 So. 2d 771 (Fla.1954); Dover Corp. v. Dean, 473 So. 2d 710 (Fla. 4th DCA 1985).

REVERSED and REMANDED for entry of judgment solely against Smith based on his percentage of the negligence (94%) or, at the option of the plaintiff/appellee, a new trial against Smith on the issue of his proportionate share of negligence.

DAUKSCH and SHARP, JJ., concur.


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Citator

Cited By

  • Orange Cnty. v. Fuller, 502 So. 2d 1364 (Fla. 5th DCA 1987)
    …ts’ motion to permit interview of jurors is not supported by affidavit, and the allegations are speculative, conclusory, or concern matters that inhere in the verdict itself. See Marks v. State Road Dept., 69 So. 2d 771 (Fla.1954); Clark v. Merritt, 480 So. 2d 649 (Fla. 5th DCA 1985), rev. den. 488 So. 2d 831 (Fla. 1986); Kirkland v. Robbins, 385 So. 2d 694 (Fla. 5th DCA 1980), rev. den. 397 So. 2d 779 (Fla.1981); National Indemnity Co. v. Andrews, 354 So. 2d 454 (Fla. 2d DCA 1978), cert. den. 359 So. 2d 1210…
  • Reteneller v. Putnam, 589 So. 2d 328 (Fla. 5th DCA 1991)
    ….1978). Also, the Florida Supreme Court has implicitly held the rationale of Vining applies when a vehicle is left unattended on private property. Hendeles v. Sanford Auto Auction, Inc., 364 So. 2d 467 (Fla.1978). Our prior case of Clark v. Merritt, 480 So. 2d 649 (Fla. 5th DCA 1985), rev. denied, 488 So. 2d 831 (Fla.1986), is not in point since the facts therein clearly established that the stolen vehicle was not left unattended by the owner. The crux of the instant case is the question of whether or not th…
  • Universal Underwriters Ins. Co. v. Motor Convoy, Inc., 566 So. 2d 371 (Fla. 3d DCA 1990)
    …PER CURIAM. Affirmed. Clark v. Merritt, 480 So. 2d 649 (Fla. 5th DCA 1985), rev. denied, 488 So. 2d 831 (Fla.1986); Hull v. Miami Shores Village, 435 So. 2d 868, 871 (Fla. 3d DCA 1983).…

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