Kottlowski v. Bridgestone/Firestone, Inc., 49A02-9509-CV-520

• Citation: 670 N.E.2d 78
• Decision Date: 30 August 1996
• Docket Number: No. 49A02-9509-CV-520,49A02-9509-CV-520
• Parties: Lawrence KOTTLOWSKI, Mike Dietzel and Tony Harter, Appellants-Plaintiffs, v. BRIDGESTONE/FIRESTONE, INC., d/b/a American Tire & Service Subsidiary of Bridgestone/Firestone, Inc., Appellee-Defendant.
• Court: Court of Appeals of Indiana

Page 78

670 N.E.2d 78

Lawrence KOTTLOWSKI, Mike Dietzel and Tony Harter, Appellants-Plaintiffs, v. BRIDGESTONE/FIRESTONE, INC., d/b/a American Tire & Service

Subsidiary of Bridgestone/Firestone, Inc.,

Appellee-Defendant.

No. 49A02-9509-CV-520.

Court of Appeals of Indiana.

Aug. 30, 1996.

Transfer Denied Feb. 20, 1997.

Donn H. Wray, Richard P. Winegardner, Stewart & Irwin, Indianapolis, for Appellants-Plaintiffs.

Richard D. Wagner, Malcolm C. Mallette, Matthew C. Breman, Krieg DeVault Alexander & Capehart, Indianapolis, for Appellee-Defendant.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Lawrence Kottlowski, Mike Dietzel and Tony Harter (collectively "Employees") appeal from the trial court's entry of summary judgment in favor of their employer, Bridgestone/Firestone, Inc., d/b/a American Tire and Service Subsidiary of Bridgestone/Firestone ("Firestone"). Employees filed suit against Firestone when their toolboxes, containing their tools, were stolen from the Firestone shop. Employees claimed that Firestone was negligent and that a bailment for their mutual benefit existed. Following a hearing, the trial court entered summary judgment in favor of Firestone.

We reverse and remand.

ISSUES

Employees present several issues for our review which we consolidate and restate as:

1. Whether the trial court erred when it determined as a matter of law that a bailment did not exist between the parties.

2. Whether the trial court erred when it concluded as a matter of law that Firestone owed no duty to Employees.

3. Whether the trial court erroneously concluded as a matter of law that even if there were a duty, Firestone was not negligent.

FACTS

The facts most favorable to Employees show that they were employed as service technicians at one of Firestone's stores in Indianapolis. Employees were required to provide their own tools and toolboxes, a common trade practice. The tools and toolboxes were large and heavy, weighing approximately 1,000 lbs. per filled toolbox. Due to their size and weight, the toolboxes could not easily be moved.

While Firestone did not require that Employees leave their toolboxes overnight, given the size and weight of the toolboxes, as a practical matter it was understood that they would remain on the premises. Employees typically locked their toolboxes when they were not working, and Firestone did not have keys to the toolboxes. Firestone never moved or opened Employees' toolboxes.

Employees did not have a key to Firestone's shop and were not able to enter the premises at will. To obtain access to their toolboxes when the shop was closed, it was necessary for Employees to contact a Firestone supervisor and request entry. However, the Employees' attempts to gain access to their toolboxes after business hours through a Firestone supervisor were never successful.

Firestone had been the scene of several criminal acts. Four tires were stolen in 1991 and in 1992, several cans of Freon were taken. In 1993, an individual armed with a knife had stolen money from the cashier and on another occasion someone attempted to break into the store after working hours. Then, between July 10, 1993, and July 12, 1993, Firestone was burglarized after the store had closed for the week-end. Employees' tools and toolboxes were taken from the building in a technician's truck. Thereafter, Employees filed their complaint for damages against Firestone and alleged that Firestone negligently failed to protect its premises and as a result, Employees' property was stolen. Prior to trial, Firestone moved for and obtained summary judgment in its favor. Employees appeal that decision.

DISCUSSION AND DECISION

Standard of Review

The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. Wells v. Hickman, 657 N.E.2d 172, 175 (Ind.Ct.App.1995). When reviewing a motion for summary judgment, we apply the same standard as the trial court, and we resolve any doubt as to a fact, or an inference to be drawn therefrom, in favor of the party opposing summary judgment. Id. Summary judgment is appropriate only when the designated materials show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); ITT Hartford Ins. Group v. Trowbridge, 626 N.E.2d 567, 569 (Ind.Ct.App.1993), trans. denied. Summary judgment is rarely appropriate in a negligence action. Frye v. Trustees of Rumbletown Free Methodist Church, 657 N.E.2d 745, 747 (Ind.Ct.App.1995).

Issue One: Bailment

Employees contend that the trial court erred when it granted Firestone's motion for summary judgment and concluded as a matter of law that a bailment did not exist between Firestone and Employees. We agree.

A bailment is an express or implied agreement between a bailor and a bailee in which the bailee is entrusted to accomplish a specific purpose with the bailor's personal property; when the purpose is accomplished, the property is returned to the bailor. Iemma v. Adventure RV Rentals, Inc., 632 N.E.2d 1178, 1181 (Ind.Ct.App.1994). No transfer of ownership occurs. Id. A bailment arises when: (1) personal property belonging to a bailor is delivered into the exclusive possession of the bailee and (2) the property is accepted by the bailee. Id. The standard of care a bailee owes a bailor is measured by the amount of benefit each party derives from the bailment. Norris Automotive Serv. v. Melton, 526 N.E.2d 1023, 1026 (Ind.Ct.App.1988). A bailment for mutual benefit arises whenever it appears that both of the parties to the contract receive a benefit from the transaction. 8 C.J.S. Bailments § 16, at 238 (1988). Ordinary care is required when the bailment is for the mutual benefit of the bailor and the bailee. Norris Automotive Serv., 526 N.E.2d at 1026. Where the evidence is conflicting, whether or not there was delivery and acceptance under the bailment is a question of fact for the jury. 8 AM. JUR. 2d Bailments § 67, at 803 (1980).

A. Delivery and Acceptance

To constitute delivery, as a general rule, there must be such a full transfer, either actual or constructive, of the property to the bailee as to exclude the possession of the owner and all other persons and give to the bailee, for the time being, the sole custody and control of the property. Weddington v. Stolkin, 122 Ind.App. 670, 675, 106 N.E.2d 239, 242 (1952). Acceptance requires either an express contract to take the article and later redeliver it, or circumstances from which such a contract can be implied. Id. When the evidence presented reveals that the bailee received the property in good condition, but it was damaged or lost prior to being returned to the bailor, an inference is raised that the bailee was negligent. Norris Automotive Serv., 526 N.E.2d at 1026. The bailee must then explain the loss of the goods and show the lack of negligence. General Grain, Inc. v. International Harvester Co., 142 Ind.App. 12, 16, 232 N.E.2d 616, 618 (1968).

According to trade custom, Employees left their tools on Firestone's premises after working hours. Generally, the act of leaving articles in the work area of the employer's premises, pursuant to trade custom, is not consistent with a handing over or surrender of possession of the articles to the employer within the meaning of a bailment. 8 C.J.S. Bailments § 23, at 248 (1988). However, whenever an employee is required to bring his own tools to a job site and it is impractical for him to remove those tools at the end of the workday, the impracticality necessitates delivery to the employer for safekeeping, even if both parties exercise some degree of possession over the tools. Mercer v. Columbia Equipment Co., 409 So.2d 1285, 1286 (La.Ct.App.1982), writ denied 413 So.2d 507 (La.1982); 8 C.J.S. Bailments § 23, at 248. ¹

Firestone correctly asserts that delivery requires possession, Iemma, 632 N.E.2d at 1181. Firestone argues that delivery did not occur because it did not "possess" the tools or toolboxes. Possession requires physical control over the property in question as well as an intention to exercise that control. BLACK'S LAW DICTIONARY 1163 (6th ed.1990). Firestone maintains that the trial court correctly determined that its offer of insurance to cover any loss or damage to Employees' equipment established that it did not intend to assume control over the Employees' tools and toolboxes. In essence, Firestone urges this court to conclude that an offer of insurance is necessarily equivalent to a disclaimer or denial of liability. We cannot agree with that assertion.

We are confronted with conflicting evidence of Firestone's intent, but taking all facts and inferences in a light most favorable to Employees, it is reasonable to conclude that Firestone intended to assume control over Employees' equipment. While Employees were required to provide their own tools and toolboxes as a condition of employment, Firestone did not actually require them to leave their equipment in the shop overnight. Nevertheless, Firestone understood that it was impractical for Employees to take their tools and toolboxes with them at the end of the working day and, thus, that Employees would be leaving those items at the shop after working hours. Firestone was aware that Employees customarily stored their tools in the service bay area of the store. Employees did not have keys to the shop and could only obtain access to their tools through Firestone management once the store had closed for the night or week-end.

The dissent states that "the tools in their boxes were merely located within the employer's premises overnight and on weekends. Such is not adequate to permit an inference of a bailment relationship." However, there is evidence of probative value to support the conclusion that the parties intended to create a bailment for mutual benefit. As we have noted, the facts reveal that the Employees were required to provide...