Garlock v. Multiple Parking Services, Inc.

• Decision Date: 15 January 1980
• Citation: 103 Misc.2d 943,427 N.Y.S.2d 670
• Parties: , 13 A.L.R.4th 428 Harold GARLOCK, Plaintiff, v. MULTIPLE PARKING SERVICES, INC., Defendant.
• Court: New York City Court

Page 670

427 N.Y.S.2d 670

103 Misc.2d 943, 13 A.L.R.4th 428

Harold GARLOCK, Plaintiff, v. MULTIPLE PARKING SERVICES, INC., Defendant.

Buffalo City Court, Erie County.

Jan. 15, 1980.

Dixon & DeMarie, Daniel L. Schoenborn, Buffalo, of counsel, for plaintiff.

Hetzelt, Watson, McGarvey & Hetzelt by Joseph Watson, Buffalo, for defendant.

MICHAEL L. McCARTHY, Judge.

The plaintiff having moved for summary judgment, and the defendant having cross moved for summary judgment, the facts are those uncontroverted assertions and exhibits found in the complaint, and the affidavits which were attached to the moving papers.

The plaintiff, on June 13, 1971, at about 7:30 P.M., entered a parking lot operated by (but not owned by) the defendant corporation. Plaintiff paid the attendant the parking fee, (defendant said this was a nominal flat rate of $.50 at that time) and was directed to park his 1968 Chevrolet Corvette Roadster, and take his keys with him.

At approximately 11:30 P.M., the plaintiff returned to the parking lot and found his auto had been burglarized and vandalized. He further stated that the attendant appeared to be in an intoxicated condition when the plaintiff returned, but had seemed sober when he had first left his car.

The convertible top had been slashed; driver door window smashed; driver door upholstery slashed; seats slashed; dash panel slashed, and a stereo tape deck and eight cartridge tapes were stolen. Total damage, which is not disputed by the defendant, was five hundred and six dollars ($506.00).

The defendant, in its answer, generally denied the plaintiff's allegations. In its affidavit in support of its later motion for summary judgment, the defendant indicated that this incident took place at 505 Washington Street in downtown Buffalo.

The defendant said it was the operator of the parking lot, but not the owner. It further alleged that the lot had a sign posted showing rates, and the fact that the lot closed at 9:00 P.M. The lot was not fenced, and the lot attendant did not take possession of the autos or their keys. Defendant's president said it was not customary for the lot attendant to remain after the 9:00 P.M. closing time, but he did not know personally whether or why the attendant remained until the 11:30 P.M. discovery time.

The unfenced lot had available ingress and egress on Washington Street, Ellicott Street, and through an adjacent lot to Huron Street. The Court takes notice of the fact that that location was on the East side of downtown Buffalo. Further, that in June, 1971, that location was on the westerly edge of what could euphemistically be called a "high crime area." There was no indication by either party as to the time the alleged vandalism occurred.

The defendant denies liability on the basis that it never took possession of the plaintiff's auto; that the claim ticket contained a liability disclaimer, and that the damage occurred after closing, so that they were no longer responsible.

The legal history of this type of incident has revolved about the question as to whether there was a bailment created, and which standard of care therefore applied (see: eg., 25 N.Y.Jurisprudence, Garages, sec. 31, et seq.; 5 N.Y.Jurisprudence, Bailment, sec. 14, 17, 58, 85, and 88, et seq.; 2A Warren's Negligence, chap. 14, sec. 5.01, et seq. and 5.06, et seq.; 2B Warren's Negligence, chap. 48, sec. 2.06, et seq. and sec. 5; 4B Warren's Negligence, chap. 55, sec. 1.02, et seq.; 3 Abbott's Digest 2d, Bailment, sec. 1, 5, 11, & 14, et seq.; 131 A.L.R. 1175; Banachowski v. Saunders, D.C.App., 187 A.2d 891, 7 A.L.R.3d 924; and 23 A McKinney's N.Y.Obligations Law, sec. 5-325). Traditionally, great emphasis was placed on whether the relationship was that of lessor-lessee, licensor-licensee, or bailor-bailee (see eg. 7 A.L.R.3d 924, at 931, sec. 2). This in turn determined whether there was a duty of care owed, and which standard of care (eg. liable only for gross negligence; ordinary care, or strict liability res ipsa ) would be applicable.

Since we are bound by stare decisis we must first look to controlling precedent in the 4th Judicial Department and the Court of Appeals. The earlier case in these two jurisdictions is Osborn v. Cline, 263 N.Y. 434, 189 N.E. 483 (1939).

The Court of Appeals decided in Osborn v. Cline, that recovery depends upon establishing bailment: "Whether a person simply hires a place to put his car, or whether he has turned its possession over to the care and custody of another depends on the place, the conditions, and the nature of the transaction." (263 N.Y. 434, at 437, 189 N.E. 483, at 484). The gravamen is one of choice. "This sign might not relieve the defendant for his negligence if he were in fact a bailee, but it was a circumstance to be considered as bearing upon the question whether, for a fee of twenty-five cents, the defendant merely permitted auto drivers to use his ground. Any house or lot owner may permit, for a fee, another to put his car on the premises without becoming a bailee or assuming any responsibility for its safety" (263 N.Y. 434, at 437-438, 189 N.E. 483, at 484). Query: Is the second "or" in the last sentence quoted above disjunctive or conjunctive? This appears to be the last time the high court of this state has spoken to this precise issue.

The Fourth Department's leading case is Potomac Insurance Co. v. Donovan, 274 App.Div. 666, 87 N.Y.S.2d 145 (1949, 4th Dept.) In that case, the Appellate Division reversed a finding for the defendant on his motion to set aside a jury verdict for the plaintiff for damages to his stolen car.

"The court properly left to the jury the question of whether or not the transaction created the relation of bailor and bailee between the car owner and the defendant (Osborn v. Cline, 263 N.Y. 434, 437 (189 N.E. 483, 484)). The jury's general verdict in favor of the plaintiff necessarily includes a finding of a bailment." (274 A.D. 666, at 669, 87 N.Y.S.2d 145, at 148).

"While the allegation in the plaintiff's complaint that the car had been stolen precludes the presumption that otherwise would arise from demand and refusal to deliver the car (see Claflin v. Meyer, 75 N.Y. 260), still that allegation in the complaint does not destroy any inference of negligence which might otherwise be drawn from the facts and circumstances." (274 A.D. 666, at 669, 87 N.Y.S.2d 145, at 148). "While the burden remains at all times upon the plaintiff to establish the defendant's negligence, that does not mean that he is required to adduce evidence pointing out the precise negligent act on omission. The surrounding facts and circumstances may be such as to permit an inference of negligence. Where the situation is such that in the ordinary course of events the theft would not have occurred but for want of proper care on the part of the bailee, his failure to show that he had taken such precautions as ordinary prudence would dictate, where the proof of it existed, would be within his power to produce, may subject him to the inference that such precautions were omitted (Russell Manufacturing Co. v. New Haven Steamboat Co., 50 N.Y. 121, 126-128; Ouderkirk v. Central National Bank, 119 N.Y. 263 (23 N.E. 875); Wilson v. Christal, 187 App.Div. 660, at 662 (176 N.Y.S. 341, 342); Hogan v. O'Brien, 212 App.Div. 193, at 195 (208 N.Y.S. 477, 478); Wintringham v. Hayes, 144 N.Y. 1 at 5 (38 N.E. 999); Galowitz v. Magner, 208 App.Div. 6 at 9 (203 N.Y.S. 421, 423))." (274 App.Div. 666, at 669, 87 N.Y.S.2d 145, at 148).

The gravamen of the Potomac Insurance case seems to be the drawing of distinctions between the presumptions of negligence for the non delivery of a bailed chattel; the rebutting of that presumption by proof the chattel was stolen, and the inference of negligence created by the fact of the theft. The court does not discuss what indicia of bailment were placed on the record, or the sufficiency of such evidence. This differs markedly from most other lower and appellate court decisions throughout the state. Most other cases are more concerned with whether a bailment was created, and facts which did or did not create it.

In the instant case, the court must make a finding, as a matter of law, as to whether liability will attach. If we must find a bailment, there are no useful guidelines in the Potomac case. Thus, it is necessary to look to other departments to find the necessary guidelines.

One of the earlier cases is Galowitz v. Magner, 208 App.Div. 6, 203 N.Y.S. 421 (2nd Dept., 1924). This case had a fact situation similar to the Potomac case (supra ), but in Galowitz, the court said the plaintiff has the burden of proof as to defendant's negligence. This was not charged to the jury, so the Appellate Court reversed with dicta to the effect that plaintiff should have little difficulty in showing the defendant's negligence in allowing plaintiff's auto to be stolen.

In Nargi v. Parking Associates Corp., 36 Misc.2d 836, 234 N.Y.S.2d 42 (1962), the New York Civil Court found that the failure to fence the parking lot, from whence the plaintiff's car was stolen, was negligence. The Court then went on to say: "I find that plaintiff's car was turned over to the care and custody of the defendant as bailee. This was not a gratuitous bailment. The plaintiff, who paid a fee, was in fact a bailee for hire. The fact that the fee was small is beside the point, and further, plaintiff was not offered a choice of rates. In any event, placing the label of 'bailment' or 'license' upon the transaction is considered immaterial to my findings of liability, since the defendant did not exercise sufficient care to protect the property of its customer, the plaintiff. (Cf. Rubin v. Forwarders Auto Trucking Corp., 111 Misc. 376 (181 N.Y.S. 451) (App.Term, 1st Dept.)" (36 Misc. 836, at 839, 234 N.Y.S.2d 42, at 46, emphasis supplied).

Thus, the Court decided that there was a bailment, and added that he need not decide that issue, because there was a...