Theft of an Unlocked Car is Foreseeable; Dangerous Driving by a Teenage Car Thief is (Probably) Not

In Rankin (Rankin’s Garage & Sales) v. J.J., 2018 SCC 19, the Supreme Court of Canada held that “[a] business will only owe a duty to someone who is injured following the theft of a vehicle [from its premises] when, in addition to theft, unsafe operation of the stolen vehicle was reasonably foreseeable”.

Late one night, after consuming alcohol and marijuana, two teens walked around Paisley, Ontario looking for opportunities to steal valuables from unlocked cars.  They ended up at Rankin’s Garage & Sales (Rankin’s) and found the lot unsecured. On the lot, they found an unlocked car with its keys in the ashtray. C., who was 16 and did not have a driver’s license, decided to steal the car and told his friend J. to get in. C. crashed the car on the highway and J. suffered a catastrophic brain injury. J. sued C., C.’s mother, who had provided the teens with some of the alcohol they drank that night, and Rankin’s.

At trial, the judge held that Rankin’s owed J. a duty of care on the basis that previous cases had already established this duty exists. The trial judge went on to find that it “ought to be foreseeable” that injury could occur if the vehicle were used by inebriated teenagers. The jury found all parties, including the plaintiff, shared liability.

The Ontario Court of Appeal upheld the trial decision, however, it did not accept that the duty fell into a recognized category and undertook a full analysis. Ultimately it concluded that the risk of theft encompasses a risk of theft by minors in whose hands vehicles are potentially dangerous, and therefore that it was reasonably foreseeable that injury would result if a car was stolen from Rankin’s lot.

The Supreme Court of Canada overturned the decision of the lower courts and dismissed the claim against Rankin’s. In doing so, Karakatsanis J., writing for the majority, held that to establish a duty of care in novel circumstances, a plaintiff must provide sufficient factual basis to establish that the type of harm suffered by the plaintiff, in this case personal injury, was a reasonably foreseeable consequence of the Defendant’s breach of the standard, in this case, failing to secure vehicles to prevent theft.

The Court distinguished the risk of theft from the risk of theft by minors. It was reasonably foreseeable to Rankin’s, or a commercial garage in Rankin’s position, that an unlocked car could be stolen. In fact, Rankin’s’ evidence was that it took precautions to secure vehicles to prevent theft. However, it was not theft of the vehicle which caused J.’s personal injury, it was the dangerous manner in which C. drove the stolen vehicle.

The decision rests on the fact there was no evidentiary basis to connect the risk of theft and the risk of dangerous operation of a stolen vehicle.  The Court was not persuaded on the evidentiary record that physical harm was an expected consequence of theft.  The Court therefore held that it was not reasonably foreseeable to Rankin’s that its failure to secure the vehicle, which C. eventually stole, could lead to physical harm. There was no evidence the garage intended to attract minors or that it knew it attracted minors and no evidence that minors were targeting the garage in particular.

Gascon J. and Brown J. dissented on two grounds. They would have found that physical injury to J. was a reasonably foreseeable consequence of Rankin’s negligence based on Rankin’s evidence that it knew it had an obligation to properly lock, secure and store its customers’ vehicles, inferring that the precautions taken to store the vehicles was “ample support for the conclusion that a reasonable person in Rankin’s circumstances would have foreseen the risk of injury from the negligent storage of vehicles.” It is interesting that the dissent would have required evidence that the acknowledged risk of theft does not automatically include a risk of theft by minors, whereas the majority reached its decision because of the absence of evidence that the risk of theft does include a risk of theft by minors.

This case highlights the need for a plaintiff to adduce evidence which establishes a link between the breach of standard and the harm suffered when arguing a duty of care should be recognized in new circumstances. However, there is a risk that the unique facts of this case have led the Court to insert instability into the reasonable foreseeable analysis. In this case, the majority concluded that personal injury was caused by a teen’s dangerous driving, and not by the theft of the vehicle. Although not discussed in detail, the majority’s underlying assumption is that C. crashed the stolen vehicle because he was a minor, with some mention of his being an inexperienced driver. There is very little discussion by the Supreme Court of Canada about the evidence that C. was drunk and high or how that affected its analysis.

What if an adult, who had never driven before, stole a car from Rankin’s and crashed it, causing injury? Was it reasonably foreseeable that an inexperienced driver, who happened to be 30, instead of 16, would steal an unsecured car? What if, instead, the thief was a teen who had significant driving experience, but nevertheless crashed the car, causing injury? Does his age still affect the analysis? What about an adult thief who was drunk and high, and who caused a crash because he was under the influence? What if the car was stolen from a house’s driveway and not a commercial garage? In those cases, would it be sufficient to adduce evidence that the risk of theft is foreseeable, or would the Plaintiff require evidence that there was a specific risk of theft from homes or by inexperienced adult drivers, experienced youth drivers, and intoxicated adult thieves to establish a duty to the injured party?

It remains to be seen how often this decision will be interpreted to require evidence of both the foreseeability of the act (here, theft) and of the actor’s specific characteristics (here, age and inexperience) and whether as a result, new categories of duty to prevent harm will be exceptionally narrow.