Spurlock v. Alexander , 121 N.C. App. 668 ( 1996 )

EAGLES, Judge.

The sole issue here is whether the trial court erred in granting defendant’s motion to dismiss pursuant to Rule 12(b)(6). Plaintiff concedes that our Supreme Court has expressly declined to extend liability to the owner of an automobile for leaving the keys in the automobile’s ignition when the automobile was subsequently stolen and when the thief’s negligent operation of that stolen vehicle caused injury to a third party. Williams v. Mickens, 247 N.C. 262, 263-64, 100 S.E.2d 511, 512-13 (1957). Plaintiff argues, however, that Williams is distinguishable (1) because the defendant in Williams was an individual, not a corporation in the business of selling cars like the defendant here, and (2) because of the special duty not to leave keys in the ignition created by Charlotte City Code section 14-180(a). We disagree.

Defendant in Williams was a taxicab driver and owner of the taxicab he drove. Defendant’s taxi was stolen when, while driving his taxicab in the course of his business, defendant parked the vehicle briefly at his taxi stand and left the keys in the ignition while he went inside the building. In this context, we cannot say that a taxi driver is so factually distinct from an automobile dealer as to warrant a result different from Williams. By virtue of their respective businesses, both the taxi driver and the automobile dealer should have had a heightened awareness of the dangers of automobile theft. The fact that defendant’s business here is corporate in form while defendant’s in Williams was not is immaterial. Accordingly, based on Williams, we conclude that a common law negligence claim may not be maintained against defendant automobile dealer here.

Plaintiff next attempts to distinguish Williams by recognizing, as did the Supreme Court, that in Williams “[t]here was neither ordinance . . . nor State law against leaving a key in the ignition switch of an automobile.” Williams, 247 N.C. at 264, 100 S.E.2d at 513. Plaintiff argues that Williams is inapplicable here since Charlotte City Code section 14-180(a) creates a duty not to leave an ignition key in an unattended vehicle.

“A statute or ordinance designed for the protection of the public is a ‘safety’ enactment and its violation constitutes negligence per se ....” Jackson v. Housing Authority of High Point, 73 N.C. App. 363, 368, 326 S.E.2d 295, 298 (1985), cuff’d, 316 N.C. 259, 341 S.E.2d 523 (1986). Under this doctrine, a “member of the class intended to be protected by a statute or regulation who suffers harm proximately caused by its violation has a claim against the violator.” Baldwin v. GTE South, Inc., 335 N.C. 544, 546, 439 S.E.2d 108, 109 (1994). Plaintiff essentially argues that she was a member of the class to be protected by Charlotte City Code section 14-180(a) and that defendant’s violation of the ordinance proximately caused her injuries. We disagree.

We conclude that plaintiff’s argument here fails because Williams remains controlling on the issue of proximate cause. To recover under a negligence per se theory, the plaintiff must still prove that the defendant’s statutory violation proximately caused the plaintiff’s harm. Plaintiff argues that the requisite proximate cause is present here. Our Supreme Court stated in Williams, however, that allowing recovery in a case like this “would do violence to the rule of proximate cause as understood and applied in this jurisdiction.” Williams, 247 N.C. at 264, 100 S.E.2d at 513. Notwithstanding Charlotte City Code section 14-180(a), the law of proximate cause remains unchanged. Accordingly, the order of the trial court dismissing plaintiff’s claim against defendant automobile dealer is

Affirmed.

Judges MARTIN, John C., and MARTIN, Mark D., concur.