HALL, Judge.
¶ 1 Plaintiffs appeal the superior court's order granting judgment on the pleadings for Defendants. Concluding that the owner/operator of a motor vehicle has no duty to protect the public from the negligent driving of a car thief, we affirm the superior court's judgment.
¶ 2 On July 15, 2006, Robert M. Delci, IV, and his son, Robert M. Delci, V, were involved in an automobile collision with an unknown person driving a 1995 Kenworth tractor pulling a 45-foot silver Wastech box trailer (the tractor-trailer). Mr. Delci was killed in the collision; his son was severely injured.
¶ 3 The driver of the tractor-trailer did not stop after causing the collision and his or her identity remains unknown. The tractor-trailer was owned by Gutierrez Trucking Company and/or Rafael Gutierrez-Martinez. Normando Romero, Sr., who was the regular driver of the tractor-trailer, had parked it in an unguarded, unfenced field one mile from his house with the keys under a floor mat in the unlocked cab.
¶ 4 Plaintiffs filed a complaint in which they alleged Normando Romero, Sr. negligently failed to secure the tractor-trailer, and that Gutierrez Trucking Company and/or Rafael Gutierrez-Martinez, as Romero, Sr.'s
¶ 5 Plaintiffs timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12-2101(B) (2003).
¶ 6 "A motion for judgment on the pleadings for the purposes thereof admits all material allegations of the opposing party's pleadings, and all allegations of the moving party which have been denied are taken as false so that a motion or judgment on the pleadings is only granted if the moving party is clearly entitled to judgment." Food for Health Co., Inc. v. 3839 Joint Venture, 129 Ariz. 103, 106, 628 P.2d 986, 989 (App.1981).
¶ 7 Under current Arizona common law, plaintiffs were required to prove four elements to establish a claim for negligence: (1) the existence of a duty recognized by law requiring defendants to conform to a certain standard of care; (2) defendants' breach of that duty; (3) a causal connection between the breach and plaintiffs' resulting injury; and (4) actual damages. Piccola v. Woodall, 186 Ariz. 307, 309, 921 P.2d 710, 712 (App. 1996); Ontiveros v. Borak, 136 Ariz. 500, 504, 667 P.2d 200, 204 (1983) (citing William L. Prosser, Handbook on the Law of Torts, § 30 at 143 (4th ed. 1971)). In this case, we are concerned only with the element of duty, the basis for the superior court's judgment for defendants.
¶ 8 "[T]he issue of duty involves generalizations about categories of cases." Gipson v. Kasey, 214 Ariz. 141, 143, ¶ 10, 150 P.3d 228, 230 (2007). A duty is an "obligation, recognized by law, which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm." Id. (citation omitted). The existence of a duty is a question of law that we review de novo. Diaz v. Phoenix Lubrication Serv., Inc., 224 Ariz. 335, 338, ¶ 12, 230 P.3d 718, 721 (App. 2010). Whether a defendant owes the plaintiff a duty is a threshold issue. Gipson, 214 Ariz. at 143, ¶ 11, 150 P.3d at 230. If no duty is owed, a negligence action cannot be maintained. Id.
¶ 9 The superior court ruled that, as a matter of law, defendants owed no duty of care to plaintiffs based on the supreme court's decision in Shafer. In that case, Shafer filed a negligence action against an auto dealership after he was injured by a third party driving a vehicle stolen from the dealer's lot. 91 Ariz. at 331-32, 372 P.2d at 333. The lot was unfenced and the ignition key had been left in the vehicle. Id. at 332, 372 P.2d at 333.
¶ 10 The supreme court began its analysis in that case by noting "[t]he prevailing view" that when, as in Arizona, there is no statute or ordinance dealing with leaving ignition keys in a vehicle, "there can be no liability" on the part of the owner. Id. at 332, 372 P.2d at 334 (citing Richards v. Stanley, 43 Cal.2d 60, 271 P.2d 23, 27 (1954) (concluding that duty of owner of car "to exercise reasonable care in the management of her automobile did not encompass a duty to protect plaintiff from the negligent driving of a thief")). Characterizing the issue as involving "the scope of the duty owed by defendant," the court affirmed the trial court's directed verdict for the defendant because "the duty of one who leaves his keys in an unattended vehicle does not extend to a plaintiff injured in an accident with the converter
¶ 11 Plaintiffs in this case argue the superior court erred in relying on Shafer, which they contend the Arizona Supreme Court impliedly overruled in Gipson by rejecting foreseeability as a factor to be considered in determining the existence of a duty. 214 Ariz. at 144, ¶ 15, 150 P.3d at 231. In Gipson, the supreme court considered whether persons who are prescribed medications owe a duty of care when they improperly give those medications to others for whom the medications were not prescribed. Id. at 142, ¶ 1, 150 P.3d at 229. The court held that evaluating whether an injury to a particular plaintiff was foreseeable by the defendant requires a fact-specific inquiry reserved for the jury, id. at 144, ¶ 16, 150 P.3d at 231, and therefore foreseeability "is more properly applied to the factual determinations of breach and causation than to the legal determination of duty." Id. at 144, ¶ 17, 150 P.3d at 231. Accordingly, to the extent that the holding in Shafer is premised on a foreseeability analysis, it is no longer valid and does not control the outcome here.
¶ 12 Because foreseeability cannot be considered in determining the existence of a duty, we next turn to the question whether defendants owed a duty to plaintiffs under the Gipson framework, in which the supreme court discussed two scenarios that may give rise to a duty of care: (1) the relationship between the parties, and (2) public policy. 214 Ariz. at 144-46, ¶¶ 18-26, 150 P.3d at 231-33. A duty of care may arise from a special relationship based on contract, family relations, or conduct undertaken by the defendant, or may be based on categorical relationships recognized by the common law, such as landowner-invitee. Id. at 145, ¶¶ 18-19, 150 P.3d at 232. Public policy used to determine the existence of a duty may be found in state statutory laws and the common law. Id. at 146 n. 4, ¶ 24, 150 P.3d at 233 n. 4.
¶ 13 Here, no preexisting relationship existed between the parties that would create a duty of care. Further, none of the categorical relationships that give rise to a duty of care under the common law are implicated. See id. at 145, ¶¶ 18-19, 150 P.3d at 232. Although plaintiffs acknowledge that the act of leaving one's keys in an unattended vehicle is not prohibited by statute, see Shafer, 91 Ariz. at 332-33, 372 P.2d at 334, they nonetheless urge us to recognize a common-law duty requiring all vehicle owners to take reasonable measures to prevent theft as a matter of public policy.
¶ 14 As plaintiffs point out, courts in many other states have recognized an exception to the general no-duty rule in vehicle theft cases in "special circumstances" involving the potential for a significant risk of harm when heavy machinery is left unsecured and easily accessible to unauthorized users, see, e.g., Carrera v. Maurice J. Sopp & Son, 177 Cal.App.4th 366, 99 Cal.Rptr.3d 268 (2009) (unattended tow truck), or in other circumstances in which the owner's conduct enhanced
¶ 15 Having determined that no special relationship or statute gives rise to a duty of care under the circumstances of this case,
¶ 16 We recognize that, absent Arizona law to the contrary, Arizona courts will usually apply the law of the Restatement. Ft. Lowell-NSS Ltd. P'ship v. Kelly, 166 Ariz. 96, 102, 800 P.2d 962, 968 (1990). Several considerations persuade us not to do so here. First, apart from its reliance on foreseeability, the no-duty result in Shafer is consistent with the Restatement (Second) of Torts: Duty to Control conduct of Third Persons § 315 (1965) (hereinafter, Second Restatement), which provides:
The rule set forth in the Second Restatement, which has been abrogated in favor of the presumptive duty-of-care standard in the Third Restatement, has been adopted in Arizona and applied in support of no-duty determinations absent a special relationship. See, e.g., Fedie v. Travelodge Int'l, Inc., 162 Ariz. 263, 265, 782 P.2d 739, 741 (App.1989); Davis
¶ 17 Second, we do not perceive that Ontiveros, in which the supreme court abolished the common-law doctrine that tavern owners are not liable for injuries sustained off-premises by third persons as a result of the acts of an intoxicated patron, 136 Ariz. at 521, 667 P.2d at 221, requires us to abandon the rule that the duty of a car owner to exercise reasonable care in the management of his automobile does not include a duty to protect others from the negligent driving of a thief. Even though the principle stated in Ontiveros that "every person is under a duty to avoid creating situations which pose an unreasonable risk of harm to others" could be interpreted, as acknowledged in Gipson, as consistent with the comment in the Third Restatement that people generally "owe a duty to exercise reasonable care to avoid causing physical harm" to others, 214 Ariz. at 146 n. 4, ¶ 24, 150 P.3d at 233 n. 4 (quoting Third Restatement § 7 cmt. a), the rationale for the common-law duty holding in Ontiveros was much more narrowly based on the relation of the licensed supplier of liquor and his patron requiring the licensee to "take affirmative measures to control or avoid increasing the danger from the conduct of others." 136 Ariz. at 508-09, 667 P.2d at 208-09 (citing the Second Restatement); see also Ontiveros, 136 Ariz. at 511 n. 4, 667 P.2d at 211 n. 4 ("We deal here with the obligation of a licensee to help control the conduct of others who are patrons of his establishment. Such duties are recognized where a `special relationship exists between the actor and the third person.'") (quoting Second Restatement).
¶ 18 Finally, adoption of the Third Restatement would do more than just modify existing Arizona negligence law; it would substantially change Arizona's longstanding conceptual approach to negligence law by effectively eliminating duty as one of the required elements of a negligence action. See Gipson, 214 Ariz. at 147-48, ¶¶ 33-40, 150 P.3d at 234-35 (Justice Hurwitz, concurring) (explaining that the Third Restatement "view[s] the duty of reasonable care as the norm, and depart[s] from that norm only in those cases where public policy justifies an exception to the general rule") (citing Third Restatement, § 7(b): "In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification."); compare Wertheim v. Pima County, 211 Ariz. 422, 426, ¶ 17, 122 P.3d 1, 5 (App.2005) ("We do not understand the law to be that one owes a duty of reasonable care at all times to all people under all circumstances.") (quoting Hafner v. Beck, 185 Ariz. 389, 391, 916 P.2d 1105, 1107 (App.1995)); Bloxham, 203 Ariz. at 275, ¶ 8, 53 P.3d at 200 (same). The Third Restatement approach significantly lessens the role of the court as a legal arbiter of whether society should recognize the existence of a duty in particular categories of cases; for this reason, adopting the Third Restatement would increase the expense of litigation. Although restricting the dismissal of negligence actions for lack of duty may be thought desirable as more protective of a litigant's jury-trial right, such a fundamental change in the common law requires an evaluation of competing public policies that is more appropriately addressed to the Arizona Supreme Court.
¶ 19 For the foregoing reasons, we affirm the superior court's judgment.
CONCURRING: SHELDON H. WEISBERG, Judge (Ret.)