KITCHENER — A garage is partly liable for a "catastrophic brain injury" a 15-year-old suffered when a car he helped steal from the business crashed, Ontario's highest court has ruled.

"On the face of things, the notion that an innocent party could owe a duty of care to someone who steals from him seems extravagant," Ontario Court of Appeal Justice Grant Huscroft wrote in the court's ruling.

"But matters are not so simple."

A three-judge Appeal Court panel backed a jury's finding that Rankin's Garage & Sales in the Bruce County village of Paisley is partly liable because it left the key in the car and took no steps to prevent the car from being stolen.

"Rankin's Garage was easily accessible by anyone," Huscroft said. "There was no evidence of any security measures designed to keep people off the property when the business was not open. Cars were left unlocked with the keys in them. The risk of theft was clear."

Huscroft concluded garage owner James Rankin "could easily have met the standard of care" by locking the cars and protecting the keys.

On July 8, 2006, two boys — one 16, the other 15 — went out to try to steal from unlocked cars. At Rankin's Garage, they found an unlocked Toyota Camry with the key in the ashtray.

The older teen got behind the wheel, even though he had not driven before and had earlier consumed beer (supplied by his mother) and vodka, and smoked marijuana. The younger teen was a passenger.

On the way to Walkerton, the car crashed, leaving the 15-year-old with a "catastrophic brain injury," Huscroft said.

The driver pleaded guilty to theft under $5,000, dangerous driving causing bodily harm and possession of stolen property. A charge of driving with more than the legal limit of alcohol in his blood was dropped.

The 15-year-old passenger sued Rankin's Garage, the driver and the driver's mother for negligence. The passenger was unable to testify because of his brain injury.

The trial judge told the jury that Rankin's Garage owed the 15-year-old a duty of care, saying "people who (are) entrusted with the possession of motor vehicles must assure themselves that the youth in their community are not able to take possession of such dangerous objects."

The garage maintained it was unreasonable and unjust to find it responsible to someone who helped steal a car that was driven by an unlicensed, intoxicated person.

The jury found that Rankin's Garage knew or should have known of the potential risk of theft and set its liability at 37 per cent.

It found the driver's mother 30 per cent liable, for supplying beer. The driver was held 23 per cent liable and the passenger 10 per cent.

Rankin's Garage appealed the jury's ruling. The Ontario Court of Appeal dismissed the appeal last week.

Huscroft noted several witnesses testified the garage had a practice of leaving cars unlocked with the keys in them, although the garage owner denied it. One witness said she recalled another vehicle being stolen from the garage years earlier. A police officer testified vehicle thefts in the area were common.

Huscroft said the garage "had care and control of many vehicles for commercial purposes, and with that comes the responsibility of securing them against minors, in whose hands they are potentially dangerous."

The garage "was an inviting target for theft and joyriding, especially by minors," the judge said.

"The risk was real and knowable, yet there was virtually no security in place at Rankin's Garage. On the contrary, theft of the car was facilitated by (the garage's) decision to leave it unlocked with the keys in it."

A date to set financial damages will be scheduled soon, said Maia Bent, a lawyer representing the passenger.

Loading... Loading... Loading... Loading... Loading... Loading...

"I cannot comment on the amount that will be sought at this point as we need to obtain expert evidence as to the cost of the plaintiff's medical and rehabilitation needs," Bent said.

"Once his care needs are determined, the amount he receives will be reduced by his contributory negligence."

Paisley, a village of 1,000 people, is 130 kilometres northwest of Kitchener.