Bernstein v. Noble, 84-696.
| Decision Date | 25 January 1985 |
| Docket Number | No. 84-696.,84-696. |
| Citation | 487 A.2d 231 |
| Parties | Howard BERNSTEIN, et al., Appellants, v. Richard NOBLE, Appellee. |
| Court | D.C. Court of Appeals |
Daniel B. Haslam, III, Washington, D.C., for appellants.
Steven Weinberg, Washington, D.C., for appellee.
Before TERRY and ROGERS, Associate Judges, and PAIR, Associate Judge, Retired.
Appellants-landlords appeal the judgment for appellee-tenant Noble of $269.95 for the cost of a stereo tuner which was delivered to the landlords' apartment building, but never delivered to Noble.1 The landlords challenge the trial court's rulings that the landlords owed Noble a duty of care, that the landlords or their agents were negligent in handling Noble's property, and that the exculpatory clause contained in the lease did not insulate the landlords from liability and therefore the duty of care owed was that of ordinary care.
The trial court, sitting without a jury, found the following facts. In February 1984, Noble ordered a stereo tuner from a store in Biddeford, Maine, and directed that it be shipped to his apartment in appellants' building. His tuner was delivered on February 20, 1984, by United Parcel Service to the apartment building. Paulette McLean, the receptionist/switchboard operator, signed the appropriate receipt for and received the tuner, and placed it on a shelf in a small room next to her desk where packages for tenants were kept. Mrs. McLean routinely accepted packages on behalf of tenants. Access to the room was limited; Mrs. McLean and the night receptionist/switchboard operator had keys to the door, which was kept locked, and there were bars on the windows.
When Mrs. McLean's shift ended at 4 p.m. and she was replaced by the night receptionist/switchboard operator, the package was on the shelf in the small room. Noble later informed Mrs. McLean that he had never received his tuner. Mrs. McLean had assumed that he had received it since the tuner was not on the shelf when she returned to work the next morning. Thereafter, Mrs. McLean gave Noble the empty box in which the tuner had been packaged; the box had been found outside of the apartment building and turned in to her.
Also in evidence was the parties' lease agreement. Paragraph 9 of the lease provided:
Should Landlord set apart in the building or otherwise in conjunction therewith, laundry or storage room for the convenience of the Tenants, Tenant may at his own risk and without cost, use for the purpose of laundry or storage a reasonable space therein if available. That Landlord's employees are prohibited as such from storing, moving, or handling articles about in such rooms and if any such employee, at the request of the Tenant, does take part in so doing he or she shall be an agent of the Tenant for such purpose and Tenant assumes all risk of loss or damage to such articles and things while in transit to or from such rooms and employees of Landlord are further prohibited as such of [sic] receiving any package or article delivered to the building for the Tenant or any person residing with Tenant, and if such employee shall receive any such article he or she in so doing shall be an agent of the Tenant.
The trial court held that the landlords owed a duty to Noble and that this duty was breached when the landlords' employee failed to safeguard and produce Noble's tuner. The court found that Mrs. McLean was an agent of Noble when she received the package, but the night receptionist/switchboard operator, who replaced Mrs. McLean when her shift ended at 4 p.m., had not received Noble's package and was, therefore, not Noble's agent under paragraph 9 of the lease, but an agent and employee of the landlords, and as such, her duties included safeguarding the room that the landlords undertook to provide for the holding of tenants' packages.
In reviewing the findings by a trial court which sat without a jury, we may reverse only if the findings are clearly erroneous and without evidentiary support, or if there was an error of law. Nelson-Bey v. Robinson, 408 A.2d 999, 1001-02 (D.C.1979) (citing D.C.Code § 17-305(a) (1981); Blanken & Blanken Investment, Inc. v. Keg, Inc., 383 A.2d 1076, 1078 n. 4 (D.C.1978); Julian W. Curtis Co. v. District-Realty Title Insurance Co., 267 A.2d 830, 833 (D.C.1970). The trial court's findings are supported by evidence in the record, and we find no error of law. Paragraph 9 of the lease did not preclude a finding of liability of the landlords for failure to account for Noble's tuner, and the landlords owed a duty to Noble which was breached when the landlords' employee failed to safeguard and produce the tuner.
"The creation of a bailment requires that possession and control over an object pass from the bailor to the bailee." 1420 Park Road Parking, Inc. v. Consolidated Mutual Insurance Co., 168 A.2d 900, 901 (D.C.1961). In this jurisdiction, a plaintiff may establish a prima facie case by showing the bailment and loss of his property. Banachowski v. Saunders, 187 A.2d 891, 892 (D.C.1963); Smith's Transfer & Storage Co. v. Murphy, 115 A.2d 300, 303 (D.C.1955). Establishment of a prima facie case raises a presumption or inference of negligence on the part of the bailee; this presumption controls the result by rule of law where there is no evidence presented in rebuttal. Smith's Transfer & Storage Co., supra, 115 A.2d at 303. When a defendant comes forward with evidence to rebut the presumption, the evidence destroys the inference as a controlling rule of law but does not destroy its probative weight as an inference of fact. Id., cited in Banachowski v. Saunders, supra, 187 A.2d at 892, and Star Pontiac Co. v. Eastern Insurance Co., 184 A.2d 200, 202 (D.C. 1962). In any bailment case, a bailee may establish that a loss of property was not due to a lack of proper care on his part, or he may offer affirmative proof that as bailee he exercised the degree of care which the particular bailment called for, although he may be unable to...
To continue reading
Request your trial
-
De Csepel v. Republic of Hungary
...requires delivery by the bailor, acceptance by the bailee, and a change of possession and control from one to the other. Bernstein v. Noble, 487 A.2d 231, 234 (D.C.1985). Defendants suggest that because they already possessed the artwork at the time the bailments were allegedly created, no ......
-
De Csepel v. Republic of Hungary
...possession of the Herzog collection stems directly from its expropriation of the collection during the Holocaust. See Bernstein v. Noble , 487 A.2d 231, 234 (D.C. 1985) (explaining that one element of a bailment relationship is that "possession and control over an object pass from the bailo......
-
First Am. Bank v. District of Columbia
...TMI and the District had sufficient possession and control of the bank's vehicle to establish a type of bailment. See Bernstein v. Noble, 487 A.2d 231, 234 (D.C.1985) (bailment is created when possession and control over an object pass from bailor to bailee).3 The question we must resolve i......
-
Taylor v. United States
...ordinary negligence. See, e.g., Moore v. Waller, 930 A.2d 176 (D.C. 2007); Carleton v. Winter, 901 A.2d 174 (D.C. 2006); Berenstein v. Noble, 487 A.2d 231 (D.C. 1985). Gross negligence in this case does not function as a distinct basis for liability, but rather as a factor to consider in wh......