Opinion
Jan. 23, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 976
Robert Gordon, Golden, for plaintiff-appellant.
Zarlengo, Mott & Carlin, Albert E. Zarlengo, Jr., Denver, for defendants-appellees.
SMITH, Judge.
Plaintiff-Appellant, Motors Insurance Corp., brought suit against Richard D. Stratton and his father alleging that Richard negligently parked his car in such a way as to invite theft; that while the car was so parked it was stolen; and that it subsequently was driven into a parked car insured by plaintiff. The complaint further asserted that such negligence was the proximate cause of the damages sought.
Trial was to a jury. At the conclusion of plaintiff's case, Richard's father was dismissed from the action on motion of plaintiff. Richard thereupon moved for dismissal on the grounds that plaintiff, as a matter of law, had failed to establish a prima facie case against him. The motion was granted, and plaintiff appeals from the resulting judgment od dismissal. We affirm.
The only testimony offered at the time of trial was the testimony of defendant, who stated that on the night in question he parked his car in a parking lot, locked the car and did not remember what he did with the car keys after he locked the car. He testified that he may have left the keys in the door, or that he might have dropped them. By stipulation, it was agreed that if the investigating officer was called to testify, his testimony would have been to the effect that Stratton locked the car and the car was stolen by an unknown suspect who used vehicle keys that were in the car door.
Plaintiff asserts that there are no Colorado cases in point. We disagree. The case of Lambotte v. Payton, 147 Colo. 207, 363 P.2d 167, is directly in point and is determinative. In Lambotte, the defendant Payton was driving an automobile and stopped at a residence to make a delivery. He left the car unlocked with the engine running while he made the delivery. He was at no time more than approximately fifteen feet away from the car and was away about one-half minute. During the time he was away from the car, a mental incompetent drove off in the car and was involved in a sequence of collisions, one of which was at issue in the case. Our Supreme Court determined that even if Payton's actions constituted negligence Per se by being violative of a Denver ordinance, they did not establish any right of recovery for the plaintiff, since the actions of the thief were an intervening independent cause of plaintiff's injuries. Hence, as a matter of law, Payton's actions were held not to be the proximate cause of the injury to plaintiff. Lambotte followed cases from other jurisdictions holding that, as a matter of law, one who negligently leaves an automobile which is later stolen cannot be held to have proximately caused injuries to another resulting from the thief's actions because such actions constitute an independent intervening cause. In the instant case, assuming Arguendo that the automobile insured by the plaintiff was damaged and that that damage was negligently caused, the actions of the thief, not defendant, were the proximate cause of such damages. The action was properly dismissed.
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.