Themis Essay 864 Flashcards
For a bailment to exist, the person receiving the bailment must:
(i) physically possess the property with the intent to exercise control over it; (ii) consent to the bailment; and (iii) be aware that the bailed goods exist.
A bailment is
the delivery or possession of goods to a person for a limited time.
Most bailments are conditional bailments, where the bailor
gives the bailee possession for a specific purpose.
In most bailments, the bailee’s standard of care
depends on who benefits from the bailment.
If the bailment is solely for the benefit of the bailor, then the bailee
owes a duty of slight diligence, and will only be liable for gross negligence.
When a bailor and bailee both benefit from the bailment,
then the bailee owes a duty of ordinary care.
When a bailment is solely for the benefit of the bailee,
then the bailee owes a duty of great diligence, and the bailee will be liable for only slight negligence.
If a bailee acts within the conditions of a bailment,
the bailee is not responsible for the damage that occurs wholly without the fault of the bailee.
A bailee who violates the conditions of a bailment is strictly (absolutely) liable for
any damages that arise as a result of the bailee’s violations of the terms of the bailment.
Waiver of liability contracts are not
favored public policy and will be strictly construed against the party seeking to enforce them.
Professional bailees cannot
waive their duty of care altogether, and must limit their liability expressly.
A professional bailee may only limit his liability when
the bailor knows of should know of the limitation and expressly consents to it.
Most courts find that a business’ posted sign limiting liability will only be valid if
it can be proven that a bailor read the notice or should have read the notice based upon its size and placement.
