Currie v. Sechrist
| Decision Date | 11 May 1978 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 581 P.2d 700,119 Ariz. 466 |
| Parties | John Robert CURRIE and Diane Currie, his wife, Appellants, v. Milton SECHRIST, as Manager of Tempe Shopping Center, Appellee. 3611. |
| Court | Arizona Court of Appeals |
Evans, Kitchel & Jenckes, P. C. by Jerry C. Bonnett, David P. Kimball, III, Phoenix, for appellee.
This case involves the liability of a shopping center for a towing company's refusal to return possession of a car to the owner. We find no basis for liability in the record and, therefore, uphold the summary judgment in favor of the shopping center.
The following undisputed facts were presented to the trial court in the summary judgment proceedings. For the eight years preceding October 2, 1975, the day the incident giving rise to this lawsuit occurred, Ray Dooley, who operates the American Towing Company (Towing Company), had been authorized by the Tempe Shopping Center (Shopping Center) to tow away from the Shopping Center's parking lot cars parked there without authorization. The Shopping Center had posted throughout the parking lot signs which stated: "Private Parking for Tempe Shopping Center Customers Only While Transacting Business Herein. Violators Will be Impounded at Vehicle Owner's Expense. To reclaim vehicle call 969-6602 (the Towing Company's telephone number). Other than for the posting of the signs, all details concerning surveillance, towing, storage and fees were left entirely to the Towing Company's discretion. The Towing Company used its own equipment. It neither paid nor received from the Shopping Center any compensation for its activities.
The authorization was in the form of two letters to Dooley. The letter of October 17, 1967, stated: "Since you are acting as an independent contractor, we have no control over the fee you charge for both towing and storage and it is understood that neither we nor the owners of the center will receive any compensation or reimbursement from you for this work." The letter of September 23, 1975, stated substantially the same. Thus, the Shopping Center was benefitted solely by the removal of unauthorized cars and the Towing Company was compensated solely by the fees it collected from car owners.
On October 2, 1975, John Currie parked his car in the Shopping Center's parking lot underneath a warning sign and left it for approximately two hours. He returned to find the Towing Company's agents preparing to tow his car away. He objected to this course of conduct and offered to remove the car from the parking lot himself. The agents said they would stop only if he would pay them $25.00. When he objected to paying, they towed his car away. Upon inquiry later the same day, the Towing Company told him he would have to pay $50.48 to reclaim his car. He refused to pay and the Towing Company kept the car pending the payment of the fee and storage charges. Currie sued the Towing Company and Milton Sechrist, the president of Tempe Shopping Center, Inc., which owns the Shopping Center and the real property upon which it is situated, for the wrongful taking and retention of his car. The trial court denied Currie's motion for summary judgment as to the Towing Company and the case against it is pending. Currie appeals the trial court's grant of Sechrist's motion for partial summary judgment dismissing with prejudice the action against Sechrist.
The only question on appeal is whether any genuine issue of material fact exists in the record which would prevent the entry of summary judgment. Currie contends that the Towing Company's acts in towing the car and demanding payment before its return were wrongful and that the Shopping Center is liable for allowing those acts. The trial court determined that Dooley was acting as an independent contractor and that the Shopping Center was not liable for the Towing Company's acts.
As a preliminary matter, Sechrist contends that, since Currie's only argument on appeal to establish the Towing Company's liability is that the taking and the retention of his car was a violation of the due process clause of the fourteenth amendment of the United States Constitution, we should treat the question of conversion as abandoned. Sechrist argues that the constitutional argument fails since the required state action is absent and, because Currie presents no other theory to establish the wrongfulness of the Towing Company's actions, the Shopping Center cannot be held liable for those acts. We agree that no governmental action is involved in this case and that, therefore, no violation of the fourteenth amendment can be found, The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), but we disagree with Sechrist's abandonment theory. We think that conversion is sufficiently raised in the pleadings and in the briefs for us to pass upon the issue.
Currie claims that he made a purchase in one of the stores in the Shopping Center and, therefore, he was not parked in violation of the signs. The Towing Company disputes this but, for purposes of review of the summary judgment, we accept Currie's version. Currie also claims that the Towing Company's refusal to return the car until he paid for towing and storage constituted a conversion. He argues that, although the Shopping Center, as a landowner, had the right to remove trespassing cars from its land, the privilege only extends to use of reasonably necessary force and when he volunteered to remove the car himself, the need for the use of any force ceased and the landowner's right to remove it terminated. He also argues that, according to Fields v. Steyaert, 21 Ariz.App. 30, 515 P.2d 57 (1973), the Towing Company had no valid garageman's lien for towing and storage charges under A.R.S. § 33-1022(B) because he had not agreed to the charges and had, in...
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Simon v. Safeway, Inc.
...on the employer's right to control how the work is performed. Santiago, 164 Ariz. at 509, 794 P.2d at 142. Compare Currie v. Sechrist, 119 Ariz. 466, 581 P.2d 700 (App. 1978) (independent contractor relationship existed when towing company permitted tow unauthorized vehicles from shopping c......
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Miller v. Westcor Ltd. Partnership
...party to be charged with the responsibility of preventing the risk, and administering and distributing it." Currie v. Sechrist, 119 Ariz. 466, 469, 581 P.2d 700, 703 (App.1978) (quoting Prosser and Keeton, The Law of Torts § 71 (4th ed. 1971)). However, numerous exceptions to the general ru......
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Currie v. Dooley
... ... The Towing Company released the car to Currie in August, 1976, upon payment of $47.25 ... The complaint against Tempe Shopping Center was dismissed by the trial court pursuant to a motion for summary judgment. This court upheld the summary judgment. Currie v. Sechrist, 119 Ariz. 466, 581 P.2d 700 (App.1978). The court, for the purposes of that appeal, determined that the relationship between the Shopping Center and the Towing Company was that of employer and independent contractor. 119 Ariz. at 469, 581 P.2d at 703 ... The following issues are ... ...