Eifler v. Shurgard Capital Management Corp., 14363-1-II

• Citation: 71 Wn.App. 684,861 P.2d 1071
• Decision Date: 22 November 1993
• Docket Number: No. 14363-1-II,14363-1-II
• Parties: John A. EIFLER, Jr., Appellant, v. SHURGARD CAPITAL MANAGEMENT CORPORATION, d/b/a Shurgard Self Storage, Respondent. Division 2
• Court: Court of Appeals of Washington

Page 684

71 Wn.App. 684

861 P.2d 1071

John A. EIFLER, Jr., Appellant, v. SHURGARD CAPITAL MANAGEMENT CORPORATION, d/b/a Shurgard Self

Storage, Respondent.

No. 14363-1-II.

Court of Appeals of Washington,

Division 2.

Nov. 22, 1993.

John W. Sweet, Seattle, for appellant.

Thomas R. Merrick, Robert J. Roche, Bullivant, Houser, Bailey, Pengergrass & Hoffman, Seattle, for respondent.

MORGAN, Judge.

After John Eifler's car disappeared while stored at Bremerton Shurgard Self Storage, he sued for breach of contract, negligence, and violation of the Consumer Protection Act (CPA). We affirm the dismissal of his claims for breach of contract and negligence, but reverse and remand for trial on his CPA claim.

Bremerton Shurgard Self Storage (Bremerton Shurgard) is owned and operated by Shurgard Capital Management Corporation. In May, 1988, its resident managers were Vi and Ed Reinhart.

Eifler is a sailor whose job takes him to sea for months at a time. While he is gone, he needs a place to store his belongings.

In 1986, Eifler leased interior space at Bremerton Shurgard. In May, 1988, he leased additional, outside space, because he needed a place to store his car.

In May, 1988, Eifler signed a written lease. It provided in part:

3. TENANT RESPONSIBLE. Tenant acknowledges and understands that no bailment is created by this lease, that landlord is not engaged in the business of storing goods for hire nor in the warehousing business, but is simply a landlord renting the Storage Unit in which Tenant can store items of personal property owned by Tenant. The Storage Unit is under the exclusive control of Tenant. Landlord does not take custody, control, possession or dominion over the contents of the Storage Unit, and does not agree to provide protection for the Self-Storage Facility, Storage Unit, or its contents thereof.

ALL PERSONAL PROPERTY ON OR IN THE STORAGE UNIT IS AT THE RISK OF TENANT. Tenant must take whatever steps are necessary to safeguard whatever property is stored in the Storage Unit....

Landlord does not have any obligation to carry insurance on tenant's property stored in the Storage Unit. IF TENANT WISHES TO HAVE HIS PROPERTY COVERED BY INSURANCE, TENANT MUST OBTAIN SEPARATE COVERAGE. Landlord will not be responsible or otherwise liable, directly or indirectly, for loss or damage to the property of Tenant due to any cause, including fire, explosion, theft, vandalism, wind or water damage, any defect now, or subsequently created or discovered, in the Storage Unit, or acts or omissions of any third party, regardless of whether such loss or damage may be caused or contributed to by the negligence of Landlord, its agents or employees.

The lease also contained an addendum relating to insurance. It stated that Eifler could obtain insurance from his own insurance agent or from Shurgard, or that he could elect to be self-insured. Eifler chose to be self-insured.

When Eifler leased the additional, outside space for his car, the Reinharts asked that he leave a set of car keys with them while he was out at sea. They were trying to convince a truck rental company to park its trucks at Bremerton Shurgard, and if the deal went through, his car might have to be moved to another part of the premises. Honoring the request, Eifler left a set of keys.

During the remainder of 1988, Eifler used his car on a number of occasions while on shore leave. After each use, he returned the car to its outside storage space. The car was in its outside storage space when he last saw it on December 10, 1988.

On February 25, 1989, Eifler returned to Bremerton Shurgard and could not find his car. He then sought out and spoke with Mark Bourgeois, the new resident manager. Bourgeois said he knew nothing about the whereabouts of the car or the set of keys. He said Vi Reinhart had died, and Ed Reinhart had left the previous November. He said that Bremerton Shurgard had not had a resident manager since November, though it had had daytime managers since that time. Eifler cancelled his lease on the last day of February, 1989.

In August, 1989, Eifler sued, alleging breach of contract, negligence, restitution, and violation of the Consumer Protection Act (CPA). The case was referred to mandatory arbitration, where Eifler lost. He then demanded trial de novo under MAR 7.1.

A jury trial was held July 17-20, 1990. Shurgard's assistant manager testified that he had discovered a large hole cut in the fence near Eifler's outside storage space about a month before the car was discovered missing. Apparently, however, the hole was soon fixed. Ed Reinhart testified the fence was easily breached because of its weak construction. Reinhart also testified he had informed his superiors of the problem, but they had done nothing to correct it. Reinhart also confirmed that he had had possession of a set of keys for Eifler's car.

Eifler himself testified that in 1986, when he had needed a place to store his belongings, he looked in the yellow pages and noticed an advertisement for Bremerton Shurgard Self Storage. The advertisement declared, "We Have Safe Storage All Locked Up". It went on to proclaim that Bremerton Shurgard was "fenced and lighted", with a "resident manager" and "electronic security and gates". He thought the facility "sounded safe".

After Eifler had presented his case, Shurgard moved for directed verdict. The trial court granted the motion as to the CPA claim, but denied it as to the contract and negligence claims.

Shurgard rested without presenting evidence. It then renewed its motion for directed verdict on the contract and negligence claims. It argued that the lease precluded liability for ordinary negligence, and that there was no evidence of gross negligence.

The trial court granted the motion on grounds that Shurgard had effectively limited its liability for ordinary negligence by means of the lease. The trial court submitted the issue of gross negligence to the jury, which found that Shurgard had not acted with gross negligence.

After trial, the court awarded Shurgard costs and reasonable attorney fees in the amount of $10,011.50. The reasonable attorney fees were those "incurred following the date plaintiff filed his request for a trial de novo." ¹ See MAR 7.3.

I. BREACH OF CONTRACT AND NEGLIGENCE

Eifler argues that the trial court erred in directing a verdict on his claims for breach of contract and negligence. He says the lease was ineffective to limit Shurgard's liability for negligence because he and Shurgard had a bailment relationship, and a bailee cannot limit its liability for negligence. We address (A) whether there was a bailment relationship and (B) if so, whether Shurgard effectively limited its liability for negligence.

A.

A bailment " 'arises generally when personalty is delivered to another for some particular purpose with an express or implied contract to redeliver when the purpose has been fulfilled.' " Gingrich v. Unigard Sec. Ins. Co., 57 Wash.App. 424, 431-32, 788 P.2d 1096 (1990) (quoting Freeman v. Metro Transmission, Inc., 12 Wash.App. 930, 932, 533 P.2d 130 (1975)). There can be no bailment without "a change of possession and an assumption or acceptance of possession by the person claimed to be a bailee." Freeman, 12 Wash.App. at 932, 533 P.2d 130 (quoting Collins v. Boeing Co., 4 Wash.App. 705, 711, 483 P.2d 1282, 46 A.L.R.3d 1294 (1971)); see also Theobaldv Satterthwaite, 30 Wash.2d 92, 94, 190 P.2d 714 (1948).

In this case, a bailment was not created simply because Eifler left his car on Shurgard's premises. He leased space from Shurgard, but by that fact alone, he did not deliver or transfer possession of the car. On the contrary, he continued to take the car in and out of Shurgard's premises at will, and without notice to Shurgard. ²

However, a bailment was created when Eifler left his car keys with Vi and Ed Reinhart. By doing that, he impliedly authorized them to move the car around the premises. This was a transfer of possession, and it was accepted by Shurgard, acting through the resident managers.

B.

Generally, a party to a contract can limit liability for damages resulting from negligence. American Nursery Prods. Inc. v. Indian Wells, 115 Wash.2d 217, 230, 797 P.2d 477 (1990). The extent to which a nongratuitous bailee can do this, however, varies according to the nature of the bailment.

A nongratuitous bailment can be a bailment for mutual benefit. American Nursery, 115 Wash.2d at 232, 797 P.2d 477. A bailment for mutual benefit arises

when both parties to the contract receive a benefit flowing from the bailment. 8 C.J.S. Bailments § 16 (1988). The benefit to the bailee need not be in the form of cash. Rather, the benefit may derive from

a bailment [which] is a mere incident to the performance of services for which the bailee receives compensation or to the conduct of business from which the bailee derives profit, or where the bailment is motivated by the bailor's desire to promote a sale....

American Nursery, 115 Wash.2d at 232, 797 P.2d 477 (quoting 8 C.J.S. Bailments § 16 at 239); see also, White v. Burke, 31 Wash.2d 573, 583, 197 P.2d 1008 (1948).

A bailment for mutual benefit can also be a professional bailment. American Nursery, 115 Wash.2d at 232, 797 P.2d 477. A professional bailee is one (1) whose principal business is to act as bailee, and (2) who deals with the public on a uniform rather than individual basis. American Nursery, 115 Wash.2d at 231, 797 P.2d 477; 8 Am.Jur.2d, Bailments § 145. Examples include the public warehouse, the parcel checkroom, and the parking garage or parking lot in which the attendant is given the right to move the car around the premises. W. Keeton, et al, Prosser and Keeton on Torts § 68, at 482-83 (5th ed. 1984); Wagenblast v. Odessa School Dist. 105-157-166J, 110 Wash.2d 845, 758 P.2d 968 (1988); 8 Am.Jur.2d, Bailments § 145.

When a bailment for mutual benefit is not also a professional bailment, public policy may or may not permit...