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Avis will probably be trying harder this week. When it fails to prevent access to keys and to protect the public from a known risk of theft it may be legally liable for resulting injuries – even if those injuries occur as a result of a high-speed chase by the police. Avis has just heard this bad news from a Florida appeals court. The really bad news is what was going on at the Avis facility.

Avis will probably be trying harder this week. It has just heard some bad news from a Florida appeals court – when it fails to prevent access to keys and to protect the public from a known risk of theft it may be legally liable for resulting injuries – even if those injuries occur as a result of a high-speed chase by the police. When you read what was going on at the Avis facility you will agree.

The opinion in Hewitt v. Avis, 30 Fla. L. Weekly D2477a, discusses the legal obligations of a rental car company in the context of the foreseeable zone of risk that carelessness with car keys creates. The appellate court concluded that it was error to enter summary judgment in favor of Avis where the evidence showed there were a high number of thefts at company’s facility during short span of time preceding the accident, that employees had general access to vehicles’ keys, that management implemented no safeguards against theft and failed to take prompt action despite awareness that its employees were involved in criminal activity, that company failed to promptly report vehicle thefts to law enforcement, and that company should have had knowledge of the harm that often occurs from careless operation of stolen vehicles by thieves.

That is a heap of carelessness. It is hard to imagine more unreasonable conduct regarding key security unless Avis left its keys at a prison gate.

Some excerpts from the court opinion:

The facts disclose that between November 1999 and May 2000, no fewer than 37 motor vehicles Avis owned or controlled were removed from Avis’s downtown rental car lot in Tallahassee, Florida, by Avis employees and “rented” in side deals or otherwise entrusted to acquaintances of the Avis employees.1 Moreover, by February 2001, managerial employees of the defendant were aware that vehicles had been missing from the lot under circumstances that should have placed them on notice that they had been stolen.2 Despite the defendant’s knowledge, it was alleged that Avis failed to establish and/or enforce sufficient safeguards to prevent the theft, use, entrustment and/or removal of its motor vehicles from the premises.3 The stolen vehicle at issue in the present case was last seen in Avis’s possession on February 23, 2001, and Avis determined it was missing as of February 26, 2001, yet did not report it stolen until April 5, 2001.4 Two days later it was involved in the accident with appellant, and keys belonging to Avis were found in the vehicle’s ignition.

At the time of the accident, Avis’s policy was to wait 30 to 45 days before reporting a car stolen, to ensure that a customer legitimately in possession of an Avis vehicle would not be stopped and charged with theft. It was only after the accident that Avis took security measures to reduce the danger of theft. It changed gate locks, parked vans in front of the gates, installed security cameras, and hired a night security guard.

In moving for summary judgment, Avis alleged that it had no relationship with the driver of the stolen vehicle involved in the accident, and, even if Avis delayed in timely reporting the car as stolen, there was no evidence showing that the accident could have been avoided if it had been reported earlier. Avis further asserted that the driver’s actions constituted an independent, intervening cause of the injury, thereby relieving it of any liability for the accident. At the conclusion of the hearing on the motion for summary judgment, the court stated orally, in granting the motion: “I think, as a matter of law, based upon what has been developed, there is no liability on the part of Avis because there is no duty on the part of Avis to prevent their cars from being stolen.” Moreover, the “intervening act of criminal conduct on the part of the driver of the car . . . precludes any finding of liability on the part of Avis.” The court thereafter entered written summary judgment for the defendant.

The analysis of the Utah Supreme Court in Cruz v. Middlekauff Lincoln-Mercury, Inc., 909 P.2d 1252 (Utah, 1996), appears to be consistent with Florida law on the questions of whether Avis owed a duty to plaintiff, and, if so, whether the breach of such duty proximately caused plaintiff’s injuries. There, in addressing the issue of a car owner’s liability in a key-in-ignition action, the court commented, similar to Florida courts, that a duty may exist where a defendant should reasonably anticipate that its conduct would create an unreasonably enhanced danger to one in the position of the injured plaintiff.

Because of the combination of special circumstances that exist in the case at bar, i.e., the high number of thefts at Avis’s downtown facility during the short span of time preceding the accident; the general access its employees had to the vehicles’ keys; the absence of any safeguards by management against theft; management’s failure to take prompt action despite its awareness that its employees were involved in criminal activity; its failure to promptly report vehicle thefts to law enforcement; and the knowledge that Avis had, or should have had, of the harm that often occurs from the careless operation by thieves of stolen vehicles, we conclude the question whether the defendant’s conduct created a foreseeable zone of risk, giving rise to a duty to lessen the risk by taking precautions to protect others from such risk, is one reserved for the fact finder.

We conclude, for the same reasons, that although plaintiff’s injuries were the immediate result of an intervening criminal act, the fact finder must also resolve the question whether such act broke the causative chain between Avis’s purported negligence and plaintiff’s injuries. Appellee argues that because it was not shown how the thief came to possess the vehicle, his criminal agency must be considered a superseding, intervening cause which relieved Avis from any liability. We cannot agree. “If an intervening cause is foreseeable the original negligent actor may still be held liable.” Gibson v. Avis Rent-A-Car System, Inc., 386 So. 2d 520, 522 (Fla. 1980). Although it was not foreseeable that the particular automobile involved in the accident would be stolen and cause injury, such facts do not break the causative chain. “[A] foreseeable zone of risk means conduct that foreseeably creates a broader zone of risk that poses a general threat of harm to others, rather than the extent to which such conduct may foreseeably cause the specific injury that actually occurred.” Hernandez v. Tallahassee Med. Ctr., Inc., 896 So. 2d 839, 841 (Fla. 1st DCA), rev. denied, 905 So. 2d 125 (Fla. 2005). In other words, if the type of harm has in the past so frequently resulted from the same type of negligence, then “ ‘in the field of human experience’ the same type of result may be expected again.” Pinkerton-Hayes Lumber Co. v. Pope, 127 So. 2d 441, 443 (Fla. 1961). The rule is moreover clear that foreseeability, as it relates to proximate cause, is generally left to the trier of fact, and if reasonable persons could differ as to whether the facts establish proximate cause, then the resolution of the issue must be left to the fact finder. Deese v. McKinnonville Hunting Club, Inc., 874 So. 2d 1282, 1287 (Fla. 1st DCA 2004).



1A former Avis employee testified that during his employment at the Avis downtown facility, he and other employees frequently took company cars and rented them to others for their personal benefit.

2Jonathan Scott testified that upon becoming manager of the facility in December 2000, he soon became aware that Avis cars were missing from the lot. He discovered that employees who worked the rental counter knew the combination of the safe where the vehicle keys were kept and were using the keys to take cars from the lot or allowing others whom they knew to take them, because he noticed no sign of forced entry. Based upon his investigation, he surmised that the thefts of the vehicles were an inside job.

3The safe combinations were changed, but employees were provided with the new combinations.

4Avis only reported it missing when the sheriff’s office informed it that the automobile had been involved in a robbery.

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