## Facts

- Mary Jane Gerstheimer drove an automobile owned by her husband, George F. Gerstheimer, to a pharmacy on the grounds of Middletown Psychiatric Center.
- She parked the car in front of the pharmacy and left it unattended with the keys in the ignition.
- Stephen E. Rushink, a resident patient at the psychiatric facility, entered the car without permission and drove away.
- Soon thereafter, the car left the road and struck a tree, killing Stephen E. Rushink.
- The estate alleged that leaving the keys in the ignition violated New York Vehicle and Traffic Law § 1210(a) and constituted negligence, including negligence per se, given the setting and foreseeable access by residents.

## Issues

1. Whether Vehicle and Traffic Law § 1210(a) was intended to protect unauthorized users of a vehicle from injuries resulting from their own operation, permitting negligence per se based on a statutory violation.
2. Whether, independent of § 1210(a), the pleadings and record supported a common-law negligence claim and whether summary judgment was appropriate for either party.

## Decision

- The Appellate Division, Third Department affirmed the order denying summary judgment to both plaintiff and defendants.
- The court held that § 1210(a) was not designed to protect unauthorized users from the consequences of their own actions; the decedent therefore could not rely on the statute to establish negligence per se.
- The court held the complaint sufficiently alleged common-law negligence, and unresolved factual questions regarding liability and causation required denial of both parties’ summary judgment motions.

## Legal Principles

- Negligence per se based on a statutory violation requires that the injured party fall within the class the statute was intended to protect and that the injury be of the type the statute sought to prevent.
- Vehicle and Traffic Law § 1210(a) (prohibiting leaving an unattended vehicle without removing or concealing the key) was enacted to deter theft and injuries caused by unauthorized operation, protecting owners and the public rather than the unauthorized operator.
- A person’s asserted inability to form larcenous intent does not place an unauthorized user within the protected class for purposes of § 1210(a).
- Even when negligence per se is unavailable, a plaintiff may pursue common-law negligence; when foreseeability, reasonableness of precautions, and causation depend on disputed facts, summary judgment is improper.

## Conclusion

The court ruled that the key-removal statute did not support negligence per se for an unauthorized driver killed while operating the vehicle, but allowed the estate to proceed on a common-law negligence theory because factual disputes remained regarding foreseeability, breach, and causation.


Rushink v. Gerstheimer, 82 A.D.2d 944 (N.Y. App. Div. 3d Dep’t 1981)