Herrera v. Quality Pontiac

Supreme Court of New Mexico · 2003 · Torts

73 P.3d 181 (N.M. 2003)

Updated July 23, 2026

Tortsdutyforeseeabilityproximate causecomparative faultintervening criminal actsstare decisisunlocked car

Facts

A customer brought a car to Quality Pontiac for repairs, and at Quality Pontiac's direction the owner left the keys in the car and the doors unlocked. The lot was fenced, but the gate was unlocked, and after 9:00 p.m. Billy Garcia entered the lot and stole the vehicle. About fourteen hours later, while fleeing a deputy at speeds up to ninety miles per hour, Garcia crashed head-on into Plaintiffs' car, killing one occupant and seriously injuring the other. Plaintiffs also submitted an affidavit asserting Albuquerque had a very high auto theft rate, that unlocked cars with keys inside are more likely to be stolen, and that stolen cars are much more likely to be involved in accidents and police pursuits.

Issue

Whether one in possession of a vehicle owes a duty of ordinary care to persons injured in an accident caused by a thief who stole the vehicle after it was left unattended, unlocked, and with the key in the ignition. Also, whether such claims fail as a matter of law on proximate cause because the thief's criminal conduct is an intervening cause.

Rule

An owner or one in possession of a vehicle who leaves it unattended, unlocked, and with the key in the ignition owes a duty of ordinary care to foreseeable persons injured when a thief steals the vehicle and then negligently or criminally causes an automobile accident. Duty depends on foreseeability and policy, and in this context the foreseeable theft and ensuing negligent driving are not too remote as a matter of law; breach and proximate cause ordinarily remain questions for the factfinder.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Santa Fe, Mesa Vista Auto Service asked customer Lena Ortiz to leave her sedan overnight in an open side lot with the doors unlocked and the key in the ignition so mechanics could move it early the next morning. During the night, a thief took the car and the next afternoon struck bicyclist Darren Cole while speeding through traffic.

If Darren sues Mesa Vista for negligence, which is the strongest statement of the duty issue?

Explanation. The majority recognized a common law duty, not a statutory duty, when one in possession of a vehicle leaves it unattended, unlocked, and with keys in the ignition. The court rejected reliance on the statute as the source of duty, yet still held that foreseeable victims injured by the thief's negligent or criminal driving may sue under common law negligence.