WAGNER v. ARCHER SALES INC (1993)

Christine Wagner appeals the trial court's judgment dismissing her case against respondent Archer Sales, Inc., dba Conejo Honda, after granting respondent's motion for summary judgment.

Is a seller of motorscooters liable for selling a motorscooter key to a minor, whose subsequent theft and reckless driving of the vehicle caused an accident which resulted in injury to a third party?   We conclude that the determination of the seller's alleged negligence is a matter for the trier of fact, and reverse the judgment of dismissal.

BACKGROUND

At the time of the accident herein, appellant was 14 years old and defendant Adam Farber was 13 years old.   Adam had been given a Honda motorscooter by his mother, defendant Barbara Farber.   Mrs. Farber, who purchased the motorscooter from respondent and was the registered owner, subsequently decided that Adam was too young for it.   She took possession of the motorscooter's key and forbade her son from driving the vehicle.

Adam surreptitiously found the key to the motorscooter in his mother's purse and wrote down its serial number.   He then walked to respondent's dealership, presented the key's serial number, and requested a duplicate key.   Respondent sold Adam the duplicate key for $4.   Adam used the key to operate the motorscooter against his mother's wishes and without her knowledge.

The same day that Adam purchased the key, appellant asked him for a ride on the motorscooter.   As they were traveling through a park in the neighborhood, Adam drove over a bump at an excessive speed and lost control of the motorscooter.   It crashed into a tree.   The collision broke appellant's leg.

Through her guardian ad litem, appellant filed a negligence suit against respondent and Adam and Barbara Farber.   Appellant's theory of liability against respondent is that, by providing Adam with a duplicate key to the motorscooter, it wrongfully enabled the boy to operate the vehicle.

Respondent's motion for summary judgment contended that it owed no legal duty to appellant under general negligence law since it was merely the vendor of the key, and a vendor normally has no duty to warn of dangers associated with the use of common goods it sells.   Moreover, respondent argued, an automobile dealer does not have any duty to refuse to sell a motor vehicle to a minor, since such person is not legally precluded from owning a vehicle.   If it is lawful for a dealer to sell a motor vehicle to a minor, it was lawful for respondent to sell the motorscooter key to Adam.

Respondent additionally argued that its admitted violation of Penal Code section 466.6 ¹ (infra ) in selling Adam the key did not establish negligence per se, since the statute does not prohibit the sale of a vehicle key to a minor but merely requires the dealer to obtain certain specified information from the purchaser of the key.

The trial court concluded that section 466.6 created no duty by respondent to appellant, and granted respondent's summary judgment motion.

DISCUSSION

Appellant contends the trial court erred by granting respondent's summary judgment motion because both section 466.6 and general negligence principles establish that respondent owed a duty to appellant in this case.

 We agree the judgment must be reversed.   The trial court failed to rule on the issue of respondent's alleged liability under general negligence law, ruling only on the issue of section 466.6.   Summary judgment cannot be granted where a basis of recovery remains unresolved.  (Twain Harte Associates, Ltd. v. County of Tuolumne (1990) 217 Cal.App.3d 71, 80, 265 Cal.Rptr. 737.)   Moreover, by itself section 466.6 does not provide either a basis for recovery under negligence law or an affirmative defense thereto.   Hence, it was error for the trial court to conclude that it protected respondent against liability.

 Summary judgment proceedings may raise questions of law as well as fact.  (Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal.App.3d 1071, 1083, 258 Cal.Rptr. 721.)   Here, the central question is whether respondent owed a duty of care to appellant.   The determination of duty is a question of law to be decided on a case-by-case basis.  (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.)   Foreseeability of the risk, a primary consideration in establishing the element of duty, is a question of fact.  (Ibid.)

NEGLIGENCE PER SE

 A duty of care may be found in a legislative enactment which itself does not provide for civil liability.  (Vesely v. Sager (1971) 5 Cal.3d 153, 164, 95 Cal.Rptr. 623, 486 P.2d 151, overruled on other grounds in Strang v. Cabrol (1984) 37 Cal.3d 720, 724, 209 Cal.Rptr. 347, 691 P.2d 1013.)

 Section 466.6 provided at the time of the sale of the key:  “(a) Any person who makes a key capable of operating the ignition of a motor vehicle for another by any method other than by the duplication of an existing key, whether or not for compensation, shall obtain the name, address, telephone number, if any, date of birth, and driver's license number or identification number of the person requesting or purchasing the key;  and the registration or identification number, license number, year, make, model, color, and vehicle identification number of the vehicle for which the key is to be made.   Such information, together with the date the key was made and the signature of the person for whom the key was made, shall be set forth on a work order.   A copy of each such work order shall be retained for one year and shall be open to inspection by any peace officer during business hours.  [¶] Any person who violates any provision of this subdivision is guilty of a misdemeanor.  [¶] (b) The provisions of this section shall include, but are not limited to, the making of a key from key codes or impressions.  [¶] (c) Nothing contained in this section shall be construed to prohibit the duplication of any key for a motor vehicle from another such key.”

It is undisputed that Adam presented the key's serial number to respondent and not the key.   Therefore, section 466.6 is applicable.   However, even if Adam had presented the key itself for duplication, respondent might still be liable under general negligence law for selling a motor vehicle key to the child (infra ).

The trial court found section 466.6 was inapplicable because appellant was not a person within the class of persons to be protected by the statute.   The court reasoned that the statute had no relevance to the issue of the safe operation of motor vehicles, and was intended only to “provide a law enforcement tool to both inhibit auto theft ․ by discouraging the duplication of ignition keys for persons who have no right to operate the vehicle and to later identify, locate and apprehend successful thieves who have ․ accomplished the theft by ․ obtaining a duplicate key․”   The court further found that section 466.6 does not prohibit an automobile dealer from furnishing a vehicle key to a minor.

In California, the negligence per se doctrine is codified in Evidence Code section 669.  (Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 349, 224 Cal.Rptr. 326.)  Evidence Code section 669 creates a presumption of negligence from a statutory violation;  this presumption affects the burden of proof, and has the purpose of furthering the public policies present in the laws to which it applies.  (Vesely v. Sager, supra, 5 Cal.3d at p. 166, 95 Cal.Rptr. 623, 486 P.2d 151;  Nowlon v. Koram Ins. Center, Inc. (1991) 1 Cal.App.4th 1437, 1441, 2 Cal.Rptr.2d 683.)

Specifically, under Evidence Code section 669 negligence may be presumed if:  (1) defendant violated a statute or other law, (2) the violation proximately caused injury to plaintiff, (3) the injury resulted from an occurrence of a nature which the statute or law was designed to prevent, and (4) plaintiff belongs to the class of persons for whose protection the statute or law was adopted.  (Subd. (a).)

Here, there is no dispute under Evidence Code section 669, subdivision (a)(1), that respondent violated section 466.6.   Apparently, none of the information required to be obtained pursuant to section 466.6 was requested by respondent from Adam.   Nor is there any claim made by respondent under subdivision (a)(2) that the violation of section 466.6 did not proximately cause appellant's injury.   At any rate, subdivisions (a)(1) and (2) are normally considered questions for the trier of fact.  (Capolungo v. Bondi, supra, 179 Cal.App.3d at p. 350, 224 Cal.Rptr. 326.)

The disputed questions here are the factors under Evidence Code section 669, subdivisions (a)(3) and (4):  whether appellant's injury resulted from an occurrence which section 466.6 was designed to prevent, and whether appellant is part of the class of persons the statute was enacted to protect.   These two issues are questions of law.  (Nowlon v. Koram Ins. Center, Inc., supra, 1 Cal.App.4th at p. 1442, 2 Cal.Rptr.2d 683.)

Respondent argues that respondent's act of furnishing the key was lawful under section 466.6, and that ends the inquiry.   It is true that the statute does not prohibit a key maker from furnishing a key to anyone.   However, section 466.6 does require a key maker to obtain information from a person who seeks to duplicate a vehicle key from its serial number.²

We disagree with the trial court that the statute should be narrowly interpreted as having no relevance to the unsafe operation of motor vehicles.   As the court found, the statute deters automobile theft.   Deterring automobile theft serves several public purposes:  it benefits not only individual owners and legal possessors of motor vehicles, but safeguards the public from the adverse consequences of vehicle theft, such as the increase of automobile insurance premiums and the unsafe driving of stolen vehicles.

The violation of section 466.6 is relevant here in creating a presumption of negligence because Adam stole the motorscooter by purchasing the duplicate key.  (Evid.Code, § 669, subd. (a)(3).)   The statute is designed to protect against motor vehicle theft, and that is what occurred here.   Adam did not own the motorscooter, possess it or have permission to operate it.   Moreover, if respondent had asked Adam for the required information, it may have discouraged the minor from purchasing the key out of fear his mother would be notified.   As the trial court itself found, section 466.6 was intended to “discourage” the duplication of motor vehicle ignition keys.

Since the prevention of unsafe driving by car thieves is an important public benefit realized by the enforcement of section 466.6, appellant certainly was within the class of persons the statute protects.  (Evid.Code, § 669, subd. (a)(4).)   As a member of the general public, she suffered injury as the result of the unsafe driving by a thief, Adam.

We conclude that the circumstances here meet the Evidence Code section 669 criteria under subdivisions (a)(3) and (4) as a matter of law.   Appellant thus is entitled to a determination by a trier of fact of the establishment of the remaining two elements under subdivisions (a)(1) and (2) of Evidence Code section 669.  (Hilyar v. Union Ice Co. (1955) 45 Cal.2d 30, 37, 286 P.2d 21;  Cade v. Mid–City Hosp. Corp. (1975) 45 Cal.App.3d 589, 597, 119 Cal.Rptr. 571.)   If these elements are established, a presumption of respondent's negligence would arise, entitling appellant to a jury instruction on negligence per se pursuant to section 466.6.   Respondent would then have the burden of persuading the trier of fact that it in fact acted in a reasonably prudent fashion by selling the motorscooter key to Adam.  (Cade v. Mid–City Hosp. Corp., supra, citing Evid.Code, § 669, subd. (b)(1).)

GENERAL NEGLIGENCE

 The general rule of negligence is that every person is required to use ordinary care to prevent injury to others as the result of that person's own conduct.  (Civ.Code, § 1714, subd. (a);  Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561.)   A necessary element of a negligence action is a legal duty to use due care.  (Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 54, fn. 3, 192 Cal.Rptr. 857, 665 P.2d 947, citing United States Liab. Ins. Co. v. Haidinger–Hayes, Inc. (1970) 1 Cal.3d 586, 594, 83 Cal.Rptr. 418, 463 P.2d 770.)

 Here, respondent contends it owed no duty of due care to appellant because it acted merely as a vendor, and a vendor cannot be banned from selling an instrument (here a key) simply because the purchaser might misuse it.  (Holmes v. J.C. Penney Co. (1982) 133 Cal.App.3d 216, 183 Cal.Rptr. 777 [no duty to refuse sales of cartridges to pellet guns to minors];  Bojorquez v. House of Toys, Inc. (1976) 62 Cal.App.3d 930, 133 Cal.Rptr. 483 [no duty to refrain from selling toy slingshots to minors].)

 Respondent further relies on the theory that there ordinarily is no duty to control the conduct of another person to prevent that person from harming others in the absence of a “special relationship.”  (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 184–185, 203 Cal.Rptr. 626, 681 P.2d 893.)   It claims it had no special relationship either to appellant or Adam.

These contentions are without merit.

 It is true that respondent's status was merely that of a vendor and it had no special relationship to the parties.   However, no special relationship need be shown here.   The rule applies only where defendant committed an act of “nonfeasance,” that is, he failed to act to prevent harm to plaintiff.   (Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 49, 123 Cal.Rptr. 468, 539 P.2d 36.)   Here, respondent committed an act of “misfeasance,” that is, it affirmatively acted by selling the motorscooter key to Adam.  (Id., at pp. 48–49, 123 Cal.Rptr. 468, 539 P.2d 36.)   As such, the question of respondent's duty is governed by the standard of ordinary care.  (Id., at p. 49, 123 Cal.Rptr. 468, 539 P.2d 36.) ³

The question here is whether respondent created a foreseeable risk of harm which was unreasonable, thereby imposing on it a duty of care to prevent harm to third persons by refraining from creating that risk.  (Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at p. 184, 203 Cal.Rptr. 626, 681 P.2d 893.)

 In considering the existence of duty in a given case, several factors require examination, including the foreseeability of harm to plaintiff, the closeness of the connection between defendant's conduct and the injury suffered by plaintiff, the moral blame attached to defendant's conduct, the policy of preventing future harm, and the extent of the burden to defendant and consequences to the community of imposing a duty to exercise due care.   (Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at p. 186, 203 Cal.Rptr. 626, 681 P.2d 893.)

Applying these factors, we conclude that the instant record could support the conclusion that respondent owed appellant a duty of due care.   It is not unreasonable to foresee that a child would use a motor vehicle key for the purpose of illegally driving the vehicle, and that the child would not possess the training and experience to safely operate the vehicle.   One dealing with children must anticipate the behavior of children, including their thoughtlessness and impulsiveness.  (Hilyar v. Union Ice Co., supra, 45 Cal.2d at p. 37, 286 P.2d 21.)

Moreover, the record reveals the existence of a close connection between respondent's conduct and appellant's injury.   The accident occurred on the very day that respondent sold Adam the motorscooter key.   Additionally, moral blame may be placed on respondent's conduct since enabling a minor to unlawfully drive a motor vehicle created a dangerous situation to the minor and third persons.   Respondent's conduct also may have violated public policy by enabling and thus encouraging the unlawful and unsafe operation of motor vehicles.   Finally, the extent of the burden on sellers of vehicles to refuse to sell a motor vehicle key to a minor without the permission of the minor's parent or guardian is minimal compared to the benefit of increased safety gained by the community.

Respondent cites case authority that an automobile vendor is not liable for selling motor vehicles without investigating the purchaser's background, since incompetence of a purchaser may not be presumed.  (Dodge Center v. Superior Court, supra, 199 Cal.App.3d 332, 244 Cal.Rptr. 789 [no liability for selling automobile to unlicensed adult driver].)  This authority is not relevant since here we are dealing with a purchaser who was a minor and obviously incompetent to drive a vehicle.⁴  It ordinarily is necessary to exercise greater care in situations involving children than for adult persons who are presumed to possess mature faculties.  (Hilyar v. Union Ice Co., supra, 45 Cal.2d at p. 37, 286 P.2d 21;  Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 243–244, 60 Cal.Rptr. 510, 430 P.2d 68.)   For instance, it would be against public policy and common sense for a automobile dealer to sell a motor vehicle to a child and then allow the child to drive the vehicle out of the lot.

Respondent's reliance on Richards v. Stanley (1954) 43 Cal.2d 60, 271 P.2d 23 also is misplaced.  Richards held that the duty of an owner of a motor vehicle to use due care in operating the vehicle does not include the duty to protect third persons from a thief who steals the owner's vehicle and then negligently drives it injuring a third person, even when the owner leaves the key in the ignition.   The court's rationale was that since the car in Richards was not left by the owner in an unsafe position or place, the owner did not have the duty to control the actions of the thief and, even if she should have foreseen the theft, she had no reason to believe the thief would be an incompetent driver.  (Id., at pp. 65–66, 271 P.2d 23.)

Here, in contrast, it was not unforeseeable that a child would use a motorscooter key to operate the motorscooter, and do so incompetently.   The Supreme Court itself has suggested that a motor vehicle owner could be negligent by leaving his car in front of a school “where [he] might reasonably expect irresponsible children to tamper with it․”  (Richards v. Stanley, supra, 43 Cal.2d at p. 66, 271 P.2d 23.)

In Murray v. Wright (1958) 166 Cal.App.2d 589, 333 P.2d 111, the appellate court held that a cause of action for negligence against a car dealership was properly alleged when the facts pled showed the dealership routinely left unattended vehicles for sale on its lot with keys in the ignitions to encourage test driving, and an intoxicated person drove one of these vehicles and injured a third person.   The Supreme Court has cited Murray approvingly.  (Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at p. 185, 203 Cal.Rptr. 626, 681 P.2d 893.)

Recently, an appellate court analyzed the problem presented in Murray of giving incompetent drivers the opportunity to use motor vehicles.  “The ‘special circumstance’ of making a car available to irresponsible children is similar to the invitation for [members of the public] to tamper with heavy equipment they are incompetent to drive [see Richardson v. Ham (1955) 44 Cal.2d 772, 285 P.2d 269 (bulldozers);  Hergenrether v. East (1964) 61 Cal.2d 440, 39 Cal.Rptr. 4, 393 P.2d 164 (two-ton truck);  Ballard v. Uribe (1986) 41 Cal.3d 564, 224 Cal.Rptr. 664, 715 P.2d 624 (truck-mounted “aerial manlift”) ].   The court's dictum [in Richards v. Stanley, supra,] ․ explained ․ that one has a duty not to invite or entice others to tamper with vehicles they are incompetent to drive․  [¶] Although it involved only ordinary vehicles, Murray [v. Wright, supra,] is consistent with the [aforementioned] Supreme Court's ‘special circumstances' decisions.   The conduct of the Murray defendants was similar to the Richardson [v. Ham, supra,] defendants' invitation to incompetent drivers to tamper with bulldozers and to the Richards [v. Stanley, supra,] dictum about leaving a key in the ignition in front of a school.”  (Avis Rent A Car System, Inc. v. Superior Court (1993) 12 Cal.App.4th 221, 229–230, 15 Cal.Rptr.2d 711.)

Here, respondent's conduct may reasonably be regarded as falling within the “special circumstance” of making a vehicle available to an incompetent driver.

The judgment is reversed.

Appellant is awarded her costs on appeal.

FOOTNOTES

1.   All further statutory references are to this code unless otherwise specified.

2.   A potential thief would be unlikely to request a duplicate key by presenting the key itself.

3.   Another theory advanced here, “negligent entrustment,” this time by appellant, also is inapplicable.   Under the negligent entrustment rule stated in the Restatement of Torts Second, section 390, one who entrusts his motor vehicle to one whom he knows or should know is incompetent to drive it may be liable for injuries inflicted by the incompetent driver.   Such liability is based upon the owner's independent negligence in entrusting his vehicle and not upon the negligence of the driver.   (Allen v. Toledo (1980) 109 Cal.App.3d 415, 420, 167 Cal.Rptr. 270.)   Since the rule contemplates liability against the owner for entrustment, a sales transaction, as occurred here, cannot give rise to liability under this rule.  (Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 338, 339, 244 Cal.Rptr. 789.)

4.   According to the evidence, Adam appeared no older than his age of 13 years at the time of the incident.

STEVEN J. STONE, Presiding Justice.

GILBERT and YEGAN, JJ., concur.