A bailee carries its burden of production by presenting "sufficient evidence to support a finding that the presumed fact did not exist and that the defendant was free from fault." Indemnity Ins., 348 F.3d at 637-38 (internal quotations and citation omitted)); United Farm Family Ins. Co. v. Riverside Auto Sales, 753 N.E.2d 681, 685 (Ind.App. 2001) ("[A] bailee can rebut the inference of negligence by presenting evidence tending to prove the loss, damage, or theft was occasioned without his fault or neglect.") (applying Indiana law). Although the initial burden of going forward shifts to the bailee, the bailee must only "com[e] forward with evidence tending to show due care."
If a bailment is found to exist, the bailee in possession of the bailed property must exercise the degree of care commensurate with the benefit that he derives from the arrangement. United Farm Fam. Ins. Co. v. Riverside Auto Sales, 753 N.E.2d 681, 684-85 (Ind.Ct.App. 2001).
Specifically, "[a] bailment exists when one party entrusts his personal property to another for a specific purpose, after which the property is to be returned." United Farm Family Ins. Co. v. Riverside Auto Sales, 753 N.E.2d 681, 684 (Ind. Ct. app. 2001) (citation omitted). A bailment relationship is contractual in nature, based on an express or implied agreement.
It appears that under Indiana tort law, Plaintiffs may have several post-deprivation remedies available. Plaintiffs could have brought an action in replevin, see Scott v. Archey, 2004 WL 179218, at *1 (7th Cir. Jan 22, 2004) (unpublished order) (citing State Exch. Bank of Culver v. Teague, 495 N.E.2d 262, 266 (Ind.Ct.App. 1986)), an action for breach of bailment, see id. (citing United Farm Family Ins. Co. v. Riverside Auto Sales, 753 N.E.2d 681, 684-85 (Ind.Ct.App. 2001)), and an action for wrongful conversion, see id. (citing Plymouth Fertilizer Co. v. Balmer, 488 N.E.2d 1129, 1140 (Ind.Ct.App. 1986)); see also Gable, 296 F.3d at 540 (Illinois law would have provided post-deprivation remedies: plaintiffs could have brought bailment or replevin actions). In fact, in the present action, Plaintiffs bring a state law claim against Defendants for criminal conversion.
[12] If a bailment is found to exist, the bailee in possession of the bailed property must exercise the degree of care commensurate with the benefit derived from the arrangement. Winters , 171 N.E.3d at 699 (citing United Farm Fam. Inc. Co. v. Riverside Auto Sales , 753 N.E.2d 681, 684–85 (Ind. Ct. App. 2001) ). In a mutual benefit bailment, where a bailment exists for both the bailor's and bailee's benefit, the bailee must exercise a duty of ordinary care.
[20] If a bailment is found to exist, the bailee in possession of the bailed property must exercise the degree of care commensurate with the benefit that he derives from the arrangement. United Farm Fam. Ins. Co. v. Riverside Auto Sales , 753 N.E.2d 681, 684-85 (Ind. Ct. App. 2001). Unless otherwise agreed, when the bailment is solely for the bailee's benefit, the bailee owes a high degree of care; when the bailment is solely for the bailor's benefit, the bailee owes only slight care, such as avoiding wanton or reckless acts; and when the bailment mutually benefits both parties, the bailee owes a duty of ordinary care.
As neither party requested the trial court to enter special findings, its judgment will be treated as a general verdict except for any special findings entered sua sponte, which will control only as to those issues they cover. United Farm Family Ins. Co. v. Riverside Auto Sales, 753 N.E.2d 681, 684 (Ind.Ct.App. 2001). With respect to this issue, however, the trial court made no findings of fact, just a conclusion of law, to wit: "The Court further determines that sick leave does not constitute pay under the Indiana Statute for Treble Damages and the plaintiff is not entitled to Treble this amount nor to an award of attorney's fees."
We also note that inasmuch as the Cyrs are appealing from a negative judgment, they must demonstrate that the trial court's judgment is contrary to law in order to prevail.United Farm Family Ins. Co. v. Riverside Auto Sales, 753 N.E.2d 681, 684 (Ind.Ct.App. 2001). Additionally, in reviewing the findings and judgment entered by the trial court, we consider only the evidence favorable to the judgment and all reasonable inferences flowing therefrom.