McGlynn v. Parking Authority of City of Newark

• Decision Date: 14 July 1981
• Citation: 86 N.J. 551,432 A.2d 99
• Parties: Roger H. McGLYNN, Plaintiff-Respondent, v. PARKING AUTHORITY OF CITY OF NEWARK, Defendant-Appellant. Michael A. BACKER, Plaintiff-Respondent, v. PARKING AUTHORITY CITY OF NEWARK, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 551

86 N.J. 551

432 A.2d 99

Roger H. McGLYNN, Plaintiff-Respondent, v. PARKING AUTHORITY OF CITY OF NEWARK, Defendant-Appellant.

Michael A. BACKER, Plaintiff-Respondent, v. PARKING AUTHORITY CITY OF NEWARK, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Nov. 17, 1980.

Decided July 14, 1981.

William Pollinger, Clifton, for defendant-appellant (Donald B. Kaufman, East Brunswick, attorney; William D. Giovine, East Brunswick, on the brief).

Kevin L. Kelly, Newark, for plaintiff-respondent Roger H. McGlynn (Lum, Biunno & Tompkins, Newark, attorneys).

Michael A. Backer, Newark, pro se.

Michael Sternlieb, Teaneck, submitted a brief on behalf of amicus curiae The Newark Parking Ass'n, Inc. (Rusch, Litt & Sternlieb, Teaneck, attorneys).

The opinion of the Court was delivered by

POLLOCK, Justice.

The primary issue in this case is whether the operator of an enclosed park and lock garage is liable for theft of property from and damage to a car parked in the garage. A further issue is whether under these circumstances proof of damage or loss creates a presumption of negligence.

Plaintiffs, McGlynn and Backer, parked their cars in the Military Park Garage operated by the defendant, Parking Authority. While the cars were parked, vandals damaged the cars and stole property from them. Both McGlynn and Backer recovered judgments in the Essex County District Court, and the Authority appealed. We granted direct certification of both appeals. 84 N.J. 412-413, 420 A.2d 329 (1980). We affirm both judgments.

I

Military Park Garage is a cavernous underground parking facility in the center of Newark. The garage has three levels of underground parking with several entrances for cars and additional entrances and exits for pedestrians. On entering, a driver receives a printed ticket from a machine. Drivers park in any available space, lock their automobiles and retain the keys. To exit, a driver must stop the car at a toll booth, present the ticket and pay the parking fee.

The facts in both cases are similar. Both McGlynn and Backer drove their cars to the garage and received tickets from the dispensing machine. Neither McGlynn nor Backer read the tickets or knew what was printed on them. On the morning of December 7, 1977, McGlynn parked his Mercedes-Benz convertible on the second underground level, locked it and took his keys. Upon returning in the afternoon, he discovered that someone had slashed the convertible top and had stolen his portable cassette recorder together with forty cassettes. The recorder had been located in the cradle between the two front seats, and the cassettes had been stored in a plastic container located on the floor behind the front seat. In the evening of October 30 1977, Backer parked his 1972 Datsun 240Z on the first underground level. When he returned the next morning, four hubcaps were missing and the antenna was broken. Both McGlynn and Backer reported the incidents to employees of the Authority. McGlynn was not charged for parking in the garage. Backer completed a claim form and returned it to the Authority. Both McGlynn and Backer asserted that the Authority had breached a bailment contract with them and that its negligence had caused their damage.

During his trial, McGlynn testified that he had never seen a security guard in the garage, but that he had parked in the garage because he thought it would be safe. In both cases, the only witness for the Authority was the supervisor of the garage. In McGlynn, the supervisor testified that the security procedures in effect on the day of the incident included the patrolling of three levels and stairways by garage attendants and city police, as well as the deployment of at least two attendants on each level of the garage. He conceded that there had been prior incidents of theft and vandalism. In Backer, the supervisor had not been in the garage while Backer's car was parked. Nonetheless, he testified that during the period when Backer's car was parked there would have been one or two attendants on duty and Newark Police would have been patrolling the garage.

In both cases, the Authority attempted to introduce into evidence the limitation of liability clause allegedly found on the tickets. The trial judge would not allow the tickets to be introduced because the Authority had not pleaded limitation of liability as an affirmative defense.

In McGlynn, the trial judge found that a bailment existed and instructed the jury that upon proof of damage, a presumption of negligence arose. The jury returned a verdict of $1,050.

In Backer, the same judge, sitting without a jury, found again that a bailment existed and that a presumption of negligence arose upon proof of damage. The court determined that the presumption established a prima facie case that was not rebutted by the Authority. Accordingly, the court awarded Backer damages of $150.

II

Traditionally, courts have analyzed parking lot or garage cases in terms of whether a bailment, license or lease relationship existed between the customer and the operator of the parking lot. Annot., "Liability for loss of or damage to automobile left in parking lot or garage," 7 A.L.R.3d 927 (1966). Depending on the characterization selected, a different standard of care was imposed upon the parking lot operator. Id. If the relationship was characterized as a bailment, proof of damage to the bailed goods created a presumption of negligence and established a prima facie case. See, e. g., Bachman Chocolate Mfg. Co. v. Lehigh Warehouse & Transp. Co., 1 N.J. 239, 242, 62 A.2d 806 (1949) (proof of damage to cocoa beans stored in warehouse established prima facie case against bailee). The bailee could rebut this presumption by coming forward with evidence showing that the loss was not caused by his negligence or that he exercised due care. Id. If, however, the relationship was characterized as a license to park or a lease of space, the customer did not receive the benefit of the presumption. Consequently, the customer had the duty to prove affirmatively the negligence of the operator. McFarland v. C.A.R. Corp., 58 N.J.Super. 449, 452, 156 A.2d 488 (App.Div.1959).

In addition, under the traditional approach, even if the relationship between the garage operator and the parker were found to be a bailment, the contents of the vehicle would not necessarily be included within the bailment. To be included within the bailment, the contents had to be plainly visible or of a kind normally kept in a car. See Cerreta v. Kinney Corp., 50 N.J.Super. 514, 517-518, 142 A.2d 917 (App.Div.1958); Annot., "Liability of owner or operator of parking lot or garage for loss of or damage to contents of parked motor vehicle," 78 A.L.R.3d 1057, 1069-1073 (1977).

Although McGlynn and Backer have relied partially on the contractual feature of a bailment, courts and scholars have disagreed on whether, in addition to possession and control, a contract is essential to the existence of a bailment. Compare Cerreta, supra, 50 N.J.Super. at 517, 142 A.2d 917 ("Bailments, except where created by operation of law or statute, rest in contract, express or implied in fact") and Garfield v. Furniture Fair-Hanover, 113 N.J.Super. 509, 512, 274 A.2d 325 (Law Div.1971) (bailments are contractual in nature), with Zuppa v. Hertz Corp., 111 N.J.Super. 419, 423, 268 A.2d 364 (Cty.Ct.1970) ("It is the element of lawful possession, however created, and the duty to account for the thing as the property of another, that creates the bailment, regardless of whether such possession is based upon contract in the ordinary sense or not"); see generally R. Brown, The Law of Personal Property, § 10.1 (3 ed. 1975); 1 A. Corbin, Corbin on Contracts § 121 at 520-522 (1963); 9 S. Williston, Contracts § 1030 (3 ed. 1967). The modern trend has been to deemphasize the contractual feature of the transaction and to emphasize the nature of the relationship between the parties when one transfers possession of goods to another. Marsh v. American Locker Co., 7 N.J.Super. 81, 84, 72 A.2d 343 (App.Div.1950), aff'd o. b., 6 N.J. 81, 77 A.2d 315 (1950); Zuppa, supra, 111 N.J.Super. at 423, 268 A.2d 364; R. Brown, supra, § 10.2.

This Court, however, has never decided whether a bailment relationship exists between the operator of an enclosed park and lock garage and its customers. In related situations, lower courts have focused on the criteria of possession and control in determining whether the relationship was one of license, lease or bailment. See, e. g., Hy-Grade Oil Co. v. New Jersey Bank, 138 N.J.Super. 112, 116, 350 A.2d 279 (App.Div.1975), certif. den. 70 N.J. 518, 361 A.2d 532 (1976) (judgment for bank customer reversed and case remanded to determine if there was delivery of money to night depository of bank because "it is essential to the creation of a bailment that the property be turned over to the possession and control of the bailee"); J.L. Querner Truck Lines, Inc. v. Safeway Truck Lines, Inc., 65 N.J.Super. 554, 561-563, 168 A.2d 216 (App.Div.1961), aff'd, 35 N.J. 564, 174 A.2d 201 (1961) (insufficient control to create bailment where truck leased to corporation was driven by employee of lessor as directed by employee of lessee); McFarland, supra (no bailment when car owner parked and locked car in restaurant parking lot, did not pay a parking fee or receive a ticket, and retained keys); Moore's Trucking Co. v. Gulf Tire & Supply Co., 18 N.J.Super. 467, 470-471, 87 A.2d 441 (App.Div.1952), certif. den. 10 N.J. 22, 89 A.2d 306 (1952) (bailment existed when trailer without tractor was stored in warehouse); Marsh, supra, 7 N.J.Super. at 84-86, 72 A.2d 343 (insufficient delivery and control to create bailment where package containing jewelry was deposited in locker at railroad station); Kushner v. President of Atlantic City, Inc., 105 N.J.Super. 203, 211-212, 251 A.2d 480 (Cty.Ct.1969) (bailment found when hotel guest surrendered car and keys to hotel...