Opinion
H. R. McCollister, Denver, for appellants.
Neef, Swanson & Myer, Edward C. Eppich, Denver, for appellee.
SILVERSTEIN, Chief Judge.
Appellants, the Strauchs, as plaintiffs in the trial court sought to recover damages for injuries received by Mr. Strauch in a two car accident. Mr. Strauch was driving one car and the other car, owned by defendant-appellee, Rael, was alleged to have been driven by either Rael or defendant Gonzales or by some person unknown. Rael filed a motion for summary judgment, which was granted. Strauch appeals the granting of this summary judgment. Gonzales entered no appearance in the trial court and is not a party to this appeal. We affirm the judgment of the trial court.
The complaint set forth three claims for relief. The first claim alleged that Gonzales was driving the car with Rael's permission. The second claim alleged that Rael was driving the car. The third claim alleged that the car was being driven by Gonzales or by an unknown person, the driver having stolen the car, that the theft resulted from Rael's negligence and that the injuries received by Strauch were the direct and proximate result of Rael's negligence. Prior to the filing of the motion for summary judgment the parties had completed their discovery proceedings and the motion was supported by six depositions and other records. Strauch filed no affidavits or other documents in reply to the motion.
The record before the trial court at the hearing clearly established that Gonzales was driving Rael's car, that he had stolen it and was driving it without Rael's knowledge or consent. Contrary to the assertions of appellant, there was no dispute as to any material fact.
Appellant asserts that Rael should be held liable for his injuries because he was guilty of negligence per se in that he had violated the provisions of C.R.S.1963, 13--5--75, the pertinent part of which reads, 'No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key, . . ..'
It was undisputed that Rael, upon parking his car, switched off his engine, removed the key from the lock and had the key in his possession when the car was stolen. Further, it was admitted that the car could be started without the key and that the ignition could not be locked. Appellant contends that Rael was negligent in leaving his car in this condition.
There being no dispute as to the material facts, the sole issue remaining was whether, assuming Rael was negligent, his negligence was a proximate cause of the injuries sustained by Strauch, or whether the acts of Gonzales constituted an intervening, independent and superseding proximate cause as a matter of law.
This case is controlled by Lambotte v. Payton, 147 Colo. 207, 363 P.2d 167. The facts in that case were similar to those here. There the defendant left his car with the engine running and was away from his car for less than a minute. During this interval the car was stolen and the thief shortly thereafter had a collision with the plaintiff. The Supreme Court affirmed the trial court's conclusion that the acts of the thief constituted an intervening and independent cause of the plaintiff's injuries. The court stated:
'While it is true that the violation of an ordinance adopted for the safety of the public may be negligence per se, it is nevertheless essential to a recovery of damages based upon such violation to establish that it was the proximate cause of the injury complained of. The violation of a statute or ordinance enacted for the protection of persons or property does not ipso facto import liability unless the violation be shown by proper proof to have been the proximate cause of the injury. (citing cases)
'We agree with the conclusion of the trial court that the injuries sustained by plaintiff were brought about by an intervening and independent cause and not by the alleged violation of the ordinance, if in fact there was such violation. Among the cases from other jurisdictions which support our conclusion are the following: Corinti v. Wittkopp, 355 Mich. 170, 93 N.W.2d 906; Galbraith v. Levin, 323 Mass. 255, 81 N.E.2d 560; Anderson v. Theisen, 231 Minn. 369, 43 N.W.2d 272.'
The cases cited above by the Supreme Court hold that the negligent acts of the thief constituted an intervening and independent cause as a matter of law, and that, even if the act of the owner of car in leaving the vehicle unlocked constituted negligence, such negligence was not the proximate cause of the injuries received.
In Corinti v. Wittkopp, Cited supra, the court stated,
'Even where there was a statute or ordinance prohibiting leaving the key in the ignition, most State courts have held that theft of an automobile left with key in ignition by the driver severed, as a matter of law, any possible causal relation between the violation of the ordinance or statute and the ultimate damage occasioned by the thief.'
Colorado follows the majority rule, and the trial court was correct in holding that, under the uncontradicted evidence before it, Rael's acts, even though assumed to be negligent, were not the proximate cause of Strauch's injuries.
Judgment affirmed.
COYTE and DWYER, JJ., concur.