Opinion
No. CV 06 5006453
October 26, 2007
MEMORANDUM OF DECISION
The plaintiff David McMahon seeks to recover damages from the defendant Branhaven Motors, Inc. because personal property in his car was stolen while the car was being repaired by the defendant.
The plaintiff asserts that the defendant was negligent in the steps it took to secure his vehicle and as a proximate result unknown persons were able to break into the vehicle. Although the plaintiff's complaint sounds in negligence, at trial the plaintiff claimed that the evidence demonstrated an implied contract for bailment. The defendant denies it was negligent in the manner alleged, denies there was any implied bailment because its work order contained an express limitation of liability for the loss or damage of personal property, and claimed that the plaintiff was contributorily negligent in leaving the personal property in the vehicle. The plaintiff has admitted that he failed to safeguard his personal property by removing it from the vehicle prior to leaving the vehicle at the defendant's dealership.
The court allowed the plaintiff to proceed on a bailment theory of recovery.
A bailment "involves a delivery of the thing bailed into the possession of the bailee, under a contract to return it to the owner according to the terms of the agreement." Seedman v. Jaffer, 104 Conn. 222, 226, 132 A. 414 (1926), quoting Murray v. Paramount Petroleum Products Co., 101 Conn. 238, 242, 125 A. 617 (1924). "A relationship of bailor-bailee arises when the owner, while retaining general title, delivers personal property to another for some particular purpose upon an express or implied contract to redeliver the goods when the purpose has been fulfilled, or to otherwise deal with the goods according to the bailor's directions." Maulding v. United States, 257 F.2d 56, 60 (1958). In this case where the plaintiff turned control over his motor vehicle including the keys to the defendant, a bailment was created. Significant to the court in determining the scope of this bailment, however, is the fact that the property was turned over to the defendant primarily for the purpose of effectuating automobile repairs rather than the storage of the car. As noted in the case of Griffin v. Nationwide Moving and Storage Company, 187 Conn. 405, p. 416, Connecticut recognizes a distinction between "professional bailees" whose principal business is to act as a bailee and who deals with the public on a uniform rather than an individual basis and that of a garage owner such as the defendant in this case. The obligation of a bailee such as the defendant in this case is to use ordinary care and diligence. Further, with regard to the scope of the bailment, the parties are allowed to contract with regard to that scope.
Generally when a motor vehicle is left in a garage, the relationship between the owner of the vehicle and the operator of the establishment may be a bailment, lease or license. "Thus a bailee for hire of an automobile generally is liable for loss of or damage to the contents thereof only if he or she had notice or knowledge of those contents. Some courts hold that the bailor of a car is under no duty to notify a bailee such as a garage that valuable tools are in the car's trunk. However the law recognizes distinctions between the liability of the bailee of the bailed vehicle and its liability for contents of the vehicle. Under this rule, unless the bailee is informed of the value of the contents, he or she cannot be held liable for anything more than might be reasonable for persons rendering services under the circumstances." See Fiedelman-Danziger, Inc. v. Statler Management, Inc. 390 Pa, 420 (1957) see also 27 ALR2d 796 sec. 8.
The court finds that the plaintiff delivered his 2001 Dodge Ram Truck to the defendant's automobile dealership on January 7, 2006. Although the plaintiff claims that he expressly requested that his vehicle be stored inside while it was in the possession of the defendant there is no confirming evidence of that request. The defendant claims that such a request would have been noted on the work order form. No such request is written on the work order. The court notes that the work order form has a number of handwritten notes on it such as when the plaintiff was informed that the repairs were completed. Such notations are consistent with the defendant's stated policy of noting special requests on the form. The plaintiff has not met his burden of proof with regard to the claim that he requested that the vehicle be stored inside.
The plaintiff was informed on January 13, 2006 that the repairs had been completed and that he could pick up the vehicle. He did not pick up the vehicle that night. Sometime during the evening of January 13, 2006 his vehicle was broken into and numerous item of personal property were stolen. The theft was discovered on the morning of January 14, 2006 and the police were notified.
When the plaintiff delivered his vehicle to the defendant he signed the workorder. The workorder authorized the repair work to be performed and also stated that the plaintiff agreed "that you are not responsible for loss or damage to the vehicle or articles left in vehicle in case of fire, theft or any other cause beyond your control. . ." In another section of the form the following language, all capitals, is used: "WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO VEHICLES OR ARTICLES LEFT IN CARS IN CASE OF FIRE THEFT OR ANY OTHER CAUSES BEYOND OUR CONTROL." The plaintiff's signature is immediately under or adjacent to these disclaimers.
The plaintiff does not allege that the defendant damaged his vehicle or stole his property. He alleges that the defendant was negligent when it parked his vehicle outside even though there was a recent history of theft, that the vehicle was not parked in an area that was under video surveillance and that the defendant failed to take reasonable steps to safeguard the vehicle.
The plaintiff alleged three distinct ways in which the defendant was negligent in the carrying out of the bailment. Specifically he alleges that there was a history of break-ins but in fact the plaintiff has not met his burden of proof with regard to that specification of negligence. Second, he alleges that his vehicle was parked in an area that was not under video surveillance even though there were areas at the defendant's premises that were covered by video surveillance. Although it is undisputed that the motor vehicle in question was parked in an area that was not under a video surveillance program, there is no evidence that the court could rely on to determine that this practice was in fact unreasonable or that the loss or damage from third parties would have been prevented by virtue of some surveillance system. Finally the plaintiff alleges that the defendants were negligent in that they failed to take reasonable steps to safeguard the plaintiff's vehicle, although the defendant knew or should have known of the risk of a break-in.
The court further finds that the defendant is not a professional bailee. Using normal rules for contract construction, the parties may contract or limit the scope of their responsibilities. In this case the defendant, in two separate instances, notified the plaintiff clearly that it did not intend to be responsible for losses occasioned by theft. The plaintiff has admitted that he failed to safeguard his own personal property when he had an opportunity to do so by removing it from the motor vehicle while repairs were being effectuated.
In summary, the plaintiff has not proven that the defendant was negligent in the manner in which it cared for the motor vehicle in question, it has not shown that the express language of the service authorization contract which limited and allocated the risk of loss for theft is invalid or against public policy. The court would note that the plaintiff did not put the defendant on notice of the specific items of personal property that remained in the car and that given the express language of the work order contract, the defendant could reasonably rely upon the fact that the plaintiff would remove any items of personal property of particular value.
Based upon the foregoing, the court finds that the plaintiff has failed to meet his burden of proof. Judgment may enter in favor of the defendant plus costs.
MEMORANDUM OF LAW IN SUPPORT OF JUDGMENT FOR PLAINTIFF
There is no question of the fact that the relationship between the Plaintiff and Defendant in this case is that of a bailor and bailee. There is also no denying that while in the possession and control of the Defendant Bailee Plaintiff's vehicle was broken into and damaged and Plaintiff's personal property was stolen. The return of the vehicle in a damaged condition raises the presumption that the loss was due to the negligence of the bailee and prima facie establishes his liability, Griffin v. Nationwide Moving and Storage Co., Inc., 187 Conn. 405, 408 409, Frissell v. John W. Rogers, Inc., 141 Conn. 308, 312, 106 A.2d 162 (1954), Barnett Motor Transportation Co. v. Cummins Diesel Engines of Connecticut, Inc., 162 Conn. 59, 63, 291 A.2d 234 (1971); National Broadcasting Co. v. Rose, 153 Conn. 219 (1965).
The presumption prevails unless and until the bailee proves the actual circumstances involved in the damaging of the property. " The isolated fact of destruction by fire or loss by theft rebuts nothing. The bailee must prove something more if he is to overcome the presumption. He must prove the actual circumstances connected with the origin of the fire or the theft, and these include the precautions taken to prevent the loss." Griffin v. Nationwide Moving and Storage Co., Inc., ( supra) at 409 and cases cited therein. The circumstances regarding this particular theft and loss are clear. The Defendant had experienced a number of vehicle break-ins at its facility prior to the break-in of Plaintiff's vehicle. For a significant part of the time Plaintiff's vehicle was kept inside the garage under lock and key but that wasn't the case on the night preceding the break-in. Although the Defendant had suffered break-ins and theft in the past and had installed surveillance cameras, Plaintiff's vehicle was parked in an area not covered by cameras. Defendant's actions and precautions to avoid the result seen here fall short of that necessary to rebut the presumption of liability on its part.
The Defendant's Second Special Defense is also to no avail. " The law does not favor contract provisions which release a person from his own negligence. We have held that the right of a bailee to limit his liability by special contract does not extend to relieve him wholly against his own negligence, for to do so would be against public policy." Griffin v. Nationwide Moving and Storage ( supra) at 413, Malone v. Santora, 135 Conn. 286 (1949). Whether a particular provision forms part of a contract is ordinarily a factual question for the trier. Plaintiff submits that an examination of the circumstances of this case and an analysis of the circumstances of the parties fails to show an enforceable agreement to shift the allocation of risk from the Defendant to the Plaintiff. Judgment should enter for the Plaintiff accordingly.
CERTIFICATION
I hereby certify that a copy of the foregoing was mail/faxed/hand delivered this 24th day of August 2007 to the following counsel of record: