Kansas Courts Hold Intervening Criminal Acts Relieve Insured of Liability in Auto Theft Cases Despite Running Vehicle Violating Statute

In Kansas, leaving a vehicle running while unattended violates K.S.A. § 8-1573.  When an insured leaves a vehicle running while going into a store, and the vehicle is stolen and the getaway driver injuries a third party, a negligence per se claim may be brought. Plaintiff’s will argue that this statutory violation makes the insured liable for any damage caused by the vehicle theft. However, Kansas cases have held that in similar circumstances, the “failure to anticipate a criminal act is not negligence.” George v. Breising, 477 P.2d 983, 989 (Kan. 1970).

In George, a repair shop left a customer’s car parked in the shop’s parking lot unlocked and with the keys in it so that the customer could pick up the car after hours. A third party stole the car and, while driving it, injured a pedestrian. The court held that the pedestrian’s negligence claim against the shop failed as a matter of law; see also Lamb v. State, 33 Kan. App. 2d 843, 849, 109 P.3d 1265, 1270 (2005) (holding that a statute enacted after George prohibiting people from leaving a vehicle unattended with the keys in the ignition does not impose an “individualized” duty to a third party injured by someone who stole a vehicle with keys left in the ignition). Lamb further held that without a special relationship between the defendant and the third-party causing the injury (e.g., the thief), there is no duty to control the conduct of a third party to prevent harm to others. Lamb at 850 (citing Schmidt v. HTG, Inc., 265 Kan. 372, 387-90, 961 P.2d 677). This information may be useful when responding to claimants making claims based on a negligence per se theory in Kansas.

Additionally, we anticipate that vehicle manufacturers may be brought into future suits when the running vehicle had a keyless ignition. While there is no published case law on this yet, we do anticipate that a car manufacturer could be brought into any suit where a vehicle with keyless entry is stolen after it was left running.  Car manufacturers are already in the crosshairs for keyless entry because most current systems make it easy for a driver to forget to turn off the car.  This is especially true with quiet, hybrid cars. Hybrid cars present an additional challenge because the engine might not be running when the car is first parked but will come on later as the car’s batteries run down. Even many non-hybrid cars today have extremely quiet engines, the sound of which can be virtually undetectable when the car is parked, and it is easy for a driver to accidentally leave the car running.  Car manufacturers are being pressured to re-engineer keyless entry so that the car shuts off after a few minutes, or after the key is out of some short range.  Until that happens keyless entry vehicles are ripe for theft. The possibility of injury following that theft makes it likely that an enterprising Plaintiff may bring a car manufacturer into a suit as well.