Christensen v. Hoover, 80SC46

• Citation: 643 P.2d 525
• Decision Date: 05 April 1982
• Docket Number: No. 80SC46,80SC46
• Parties: Evelyn K. CHRISTENSEN, Petitioner, v. Ruth F. HOOVER and Harold T. Hoover, Respondents.
• Court: Supreme Court of Colorado

Page 525

643 P.2d 525

Evelyn K. CHRISTENSEN, Petitioner, v. Ruth F. HOOVER and Harold T. Hoover, Respondents.

No. 80SC46.

Supreme Court of Colorado, En Banc.

April 5, 1982.

James L. Aab, Lakewood, for petitioner.

Herman Rothstein, Commerce City, for respondents.

ERICKSON, Justice.

We granted certiorari to review Christensen v. Hoover, 43 Colo.App. 501, 608 P.2d 372 (1979), which reversed a judgment holding a landlord and a professional mover jointly and severally liable for damage to a tenant's personal property when it was removed from the rented premises pursuant to a forcible entry and detainer action. We affirm in part and reverse in part, and remand this case to the court of appeals for further proceedings consistent with this opinion.

I.

In September 1976, petitioner, Evelyn Christensen, entered into an oral lease agreement with respondents, Ruth and Harold Hoover, for the rental of a house owned by the Hoovers in Sheridan, Colorado. In early November 1976, a dispute arose concerning the amount of rental payments owed. As a result of alleged nonpayment of rent, the Hoovers commenced a forcible entry and detainer action in the County Court of Arapahoe County. ¹ Thereafter, the Hoovers obtained a default judgment against Christensen, and a writ of restitution was issued to allow the Hoovers to regain possession of the premises. A copy of the writ of restitution was then posted on the front door of the house.

On December 14, 1976, a deputy sheriff of Arapahoe County executed the writ of restitution. Since Christensen was temporarily living elsewhere because of an illness in her family, she was not present at the time the writ was executed. The Hoovers hired Richard Slatten, d/b/a Liberty Moving and Storage, to meet them and the deputy sheriff at the premises to remove Christensen's possessions from the house. Slatten removed all of Christensen's furniture and personal belongings from the house to a moving van, and transported them to a private storage facility. Slatten then unloaded Christensen's property into a storage shed which the Hoovers had rented. The Hoovers thereafter refused to disclose the location of the property to Christensen.

In February 1977, the Hoovers authorized the storage facility to make the property available to Christensen upon her payment of accrued storage charges of $58.30. On February 11, 1977, Christensen paid the charges and obtained possession of her furniture and personal belongings, which were damaged at the time she retrieved them. In addition, Christensen could not locate some of the items which had been in the rented house.

Thereafter, Christensen filed suit in the District Court of Arapahoe County against the Hoovers and Slatten alleging, inter alia, that the defendants were liable as bailees for damaging her property during the moving process and for conversion of the missing items. In a trial to the court, judgment was rendered in favor of Christensen and against the Hoovers and Slatten jointly and severally in the amount of $1,025 plus interest and costs for the damage sustained. The court found that: (1) Slatten was an agent of the Hoovers in the course of his employment when he removed, transported and stored Christensen's possessions in accordance with the Hoovers' directions; (2) the Hoovers and Slatten owed a duty to use reasonable care in the moving process and breached the duty which was the proximate result of the damage; and (3) no conversion of the missing items occurred. The Hoovers and Slatten thereafter appealed to the court of appeals.

The court of appeals set aside the judgment against the Hoovers concluding that, since Slatten was an independent contractor and not an agent or employee of the Hoovers, his negligence could not be imputed to them. The court of appeals also held that, as involuntary bailees, the Hoovers could not be independently liable in negligence for damage to Christensen's property since their conduct was not malicious, willful, or grossly negligent. The judgment against Slatten was affirmed by the court of appeals because, as a bailee for hire, a presumption of negligence arose against him when Christensen's goods were returned in a damaged condition. Christensen v. Hoover, supra.

II.

The Colorado forcible entry and detainer statute provides a method by which a landlord may regain possession of rented premises from a tenant, through a writ of restitution, where the tenant is guilty of an unlawful detainer. See sections 13-40-104(d), 115(1), and 122, C.R.S.1973. The statute provides that the writ "shall be executed by the officer having (the writ)." Section 13-40-122, C.R.S.1973. None of the statutory provisions prescribe a procedure for the officer or sheriff to follow in taking possession of the premises from a tenant through the execution of a writ of restitution. It is the officer's duty, however, not only to remove the tenant, but also to remove the tenant's personal property and effects from the premises. Upon execution of the writ, the landlord obtains full possession of the premises. See section 13-40-115(1), C.R.S.1973.

In requiring an "officer" to execute a writ of restitution, the forcible entry and detainer statute implicitly recognizes the desirability of having a neutral, detached, and disinterested person dispossess a tenant through eviction procedures. See sections 13-40-103 and 122, C.R.S.1973. Landlords are therefore precluded from independently exercising self-help evictions by the forcible entry and detainer statute. In carrying out the statutory duties, an officer or sheriff is subject to a minimum standard of care. The sheriff is only required to remove the tenant's chattels or property without damaging them more than is necessary to execute the writ, consistent with the natural consequences of removal. The sheriff has no duty to safeguard the tenant's possessions after a lawful eviction has occurred, even though he knows the tenant's belongings might be taken if they are left unattended. After the writ has been executed and the landlord has regained possession of the premises, the sheriff's statutory duty has ended, and no liability for subsequent damage to the tenant's property can attach.

A landlord is not liable in damages or responsible for the manner in which a sheriff executes the writ or disposes of the tenant's property in the course of a lawful eviction. See Iorio v. City of New York, 96 Misc.2d 955, 410 N.Y.S.2d 195 (1978). After the tenancy has been lawfully terminated, the landlord is under no obligation, statutory or otherwise, to store or maintain the tenant's possessions. See McCready v. Booth, 398 So.2d 1000 (Fla.App.1981). However, if the landlord actively participates in removing the tenant's property from the premises, or if he assumes possession or control of the tenant's property after the writ of restitution has been executed, a bailment is created between the landlord and the tenant which may subject the landlord to liability for damage to the tenant's property. See Ide v. Finn, 196 A.D. 304, 187 N.Y.S. 202 (1921).

III.

A bailment is a delivery of personal property by one person to another in trust for a specific purpose, with an express or implied contract that the property will be returned or accounted for when the specific purpose has been accomplished or when the bailor reclaims the property. Mayer v. Sampson, 157 Colo. 278, 402 P.2d 185 (1965); Johnson v. Willey, 142 Colo. 512, 351 P.2d 840 (1960); Lewis v. People, 114 Colo. 411, 166 P.2d 150 (1946). While the delivery of property may be constructive by simply taking possession, the creation of a bailment requires that possession and control over the subject property pass to the bailee. No agreement is necessary; a bailment may be created by operation of law. Thus, where a person comes into lawful possession of the personal property of another, even though there is no formal agreement between the property's owner and its possessor, the possessor will become a constructive bailee when justice so requires. See Loomis v. Imperial Motors, Inc., 88 Idaho 74, 396 P.2d 467 (1964).

Here, a constructive bailment relationship was created between Christensen and the Hoovers and between Christensen and Slatten. See Weisberg v. Loughridge, 253 Cal.App.2d 416, 61 Cal.Rptr. 563 (1967); Gray v. Whitmore, 17 Cal.App.3d 1, 94 Cal.Rptr. 904 (1971). The Hoovers assumed possession and control of Christensen's property after the writ of restitution was executed, and retained control over the property while it was in storage. They hired and paid Slatten to remove Christensen's property from the leased premises and were present when it was being removed. In addition, the Hoovers accompanied Slatten to the storage facility which they rented, and waited at the storage facility until Slatten had unloaded and stored Christensen's property. Thereafter, the Hoovers refused to inform Christensen where her property was stored. Christensen was thereby denied both access to and possession of her personal property. Moreover, Slatten exercised control of Christensen's property by physically removing her possessions from the leased premises, transporting them to the storage facility, and unloading them into the storage shed.

A bailee's obligation runs to the property bailed, and not solely to the bailor. Once a bailment relationship has been established, the law imposes upon the bailee certain duties and obligations with respect to the bailed property in his possession. However, not all bailees are subject to the same liability for damage to the bailed property; the degree of care to which a particular bailee is held depends upon the nature and characterization of the bailment relationship. ² See Loomis v. Imperial Motors, Inc., supra.

A. Gratuitous Bailment

The bailment relationship created when the Hoovers took possession and control of Christensen's property was gratuitous since it was for the sole benefit of the bailor. See Loomis v....