Bailment

Question 1

Bailment

Answer 1

Rightful possession and control of goods (chattels) by someone who is not the true owner.

NOTE: “Liability” for the Property of Others.

Question 2

Bailor and Bailee

Answer 2

Bailor - True owner who entrusts his good to another.

Bailee - One to whom the good is entrusted.

Question 3

Three Critical Features of Bailment

Answer 3

1. Must be personalty (no real estate)
2. Although not owner, bailee has actual and rightful possession
3. Because not owner, bailee has duty to return/follow instructions

Question 4

Elements of Bailment

Answer 4

1. Personalty - Personal good, not real (estate)
2. Actual and rightful possession (of the Bailee)
3. Actual or Constructive Delivery
   - may include owner’s loss or misplacement of an item (constructive)
   - Courts construe this concept liberally-broadly
4. Expressed or implied consent (Bailee’s acceptance)
   - a. Implied by words or actions or both
   - [e.g. implied consent: Finder or OLQ - impliedly consented to serve as custodian for found item]
   - b. Can’t force bailment relationship (duress)
5. Duty (to return chattel to bailor or otherwise follow bailor’s instructions) [DeGroff element]

Question 5

Basis for Liability

Answer 5

If item lost, destroyed, etc., look at the relationship, such as a contractual relationship.
1. Contractual - If there is a Contract, the contract will determine the basis of liability.
2. Strict Liability - If someone dealt fraudulently with the item (e.g., selling to another, not giving back, positive wrong by bailee).
3. Negligence - If bailee acted in good faith without fraud or contract:
- a. Determine how Negligent
- b. How careful

Question 6

Negligence Standard of Care

Answer 6

Common Law (historic) approach (look at who benefits):
1. Bailee benefits: High diligence, Slight negligence
2. Bailor benefits (gratuitous): Slight diligence, Gross negligence
3. Both benefit: Ordinary diligence, ordinary negligence

Modern Trend approach:
Ordinary diligence, ordinary negligence (for a “reasonable” person under the circumstances)
- Value highly relevant to care, but not relevant to consent
- Care relevant (i.e., ease of theft, duty of care in protecting item)
- “Attractiveness to the light fingered gentry” relevant

Question 7

Burden of Proof of Negligence

Answer 7

Burden is on the bailee to establish that his negligence did not cause the loss.

Question 8

Res ipsa loquitur

Answer 8

Principle that the loss occurred due to negligence.

Question 9

Force majeure

Answer 9

That no negligence exists; unavoidable accident.

Question 10

Burden under Contract

Answer 10

If a contract exists, the burden of proof is on the bailee. If proof of innocence is presented, the burden shifts to the bailor.

Question 11

Trial Procedure

Answer 11

1. Plaintiff (bailor) must bring suit to prove prima facie case (item was lost or damaged/destroyed)
2. Defendant (bailee) must present evidence there was no negligence
3. Burden then shifts to Plaintiff to prove negligence existed (etc.)

[e.g., Hanes; furniture sideboard - furniture store burned down]