Aspiring thieves should be aware of at least two important legal principles before planning any crime that would involve fleeing in an automobile:
- Stealing is illegal; and
- If you are hurt in an accident while fleeing, you can’t sue your driver for negligence.
Well, you can sue if you want, I guess, but you are not likely to win.
In California, at least, this particular fact pattern is covered by statute, as the Court of Appeal held on June 23. State law provides that “[i]n any actions based on negligence, a person may not recover any damages if the plaintiff’s injuries were in any way proximately caused by the plaintiff’s commission of any felony, or immediate flight therefrom, and the plaintiff has been duly convicted of that felony.” Civ. Code § 3333.3. A felon could still sue somebody for an intentional tort committed against him during the felony or flight therefrom, although I’m not sure how sympathetic a jury might be, but said felon cannot sue for accidental felony-related injuries.
In Espinoza v. Kirkwood, the three parties to the case had just burgled a residence together (sorry—I don’t get that many opportunities to use the word “burgled”) when they were spotted by police, and a car chase ensued. Kirkwood, who was driving the getaway car, managed to crash into three other cars less than a mile away, and all three men were caught and convicted. The two passengers, who had been injured in the crash, sued Kirkwood for negligence.
It does seem like a pretty clear case of negligence—specifically, malpractice. I assume Kirkwood held himself out as a reasonably competent getaway driver, and yet his performance in that role was dismal. He hit three other cars and rear-ended one that was stopped in an intersection, all of this less than a mile from the scene of the burgle. After the car came to a stop, he tried to make his own getaway on foot and, as the court noted, “without stopping to identify himself.” (To be fair, it’s not like he had a lot of time to exchange insurance information with the other driver.) None of this seems to meet the standard one would expect of a professional getaway-car driver.
The problem for plaintiffs was that darn statute, which seems to bar them from recovering just because they were injured by a co-felon during a felony. The opinion is not very clear as to their argument, saying only that they claimed there was an issue as to “whether or not their participation in a felony or immediate flight therefrom was a proximate cause of the injuries.” They appear to have argued either (1) that the statute was only intended to keep them from suing police officers for accidentally injuring a suspect, not from suing a co-felon; or (2) that their own “participation” did not cause the injuries because they were not driving.
The first argument, at least, is not entirely dumb, but it ignores the breadth of the statute: no recovery if the injuries “were in any way caused by the plaintiff’s commission of any felony, or immediate flight therefrom….” And as far as the immediacy of the flight goes, like I said, they didn’t even get a mile from the scene. (The second argument is entirely dumb.)
So, there may be no honor among thieves, but there very well might be immunity.