Bailment is the temporary
placement of control over, or possession of personal property by one person,
the bailor, into the hands of another, the bailee, for a
designated purpose upon which the parties have agreed. Ownership is not
transferred in a bailment situation. An example is a coat check at a play or an
opera. Predictably, when a property owner entrusts his or her property with
another, things sometimes go wrong. Below, is a sampling of Illinois case law
pertaining to bailment and the problems that may arise in a bailment context.
In Kammerer v.
Graymont Hotel Corp., 337 Ill. App. 434, 437 (1st Dist. 1949), the
plaintiff sued to recover money deposited in a box located in the defendant
hotel’s office. When the plaintiff
returned to the hotel office to retrieve her money, nearly all of what she had
originally deposited was missing. In
affirming judgment in favor of the plaintiff the appellate court held, “where a
bailee receives property and fails to return it, the presumption arises that
the loss was due to his negligence, and the law imposes on him the burden of
showing that he exercised the degree of care required by the nature of the
bailment.” Kammerer at 437. In other words, if a bailment occurs, the
bailee has to demonstrate that its employees were not negligent in disposing of
the personal property which was being stored.
In Wausau
Insurance Co., v. All Chicagoland Moving and Storage Co., 333 Ill. App. 3rd
1116 (2d Dist. 2002), the plaintiff sued to recover the value of a microscope
entrusted to the defendant to move, which was ultimately returned in a damaged
condition. In holding the moving company
liable for the damage to the microscope the appellate court in Wausau
Insurance held, “A bailment is the delivery of property for some purpose
upon a contract, express or implied, that after the purpose has been fulfilled,
the property shall be redelivered to the bailor, or otherwise dealt with
according to his directions or kept until he reclaims it.” Wausau Insurance at 1121. This case demonstrates that a bailor has a
legal duty to return personal property at the conclusion of the bailment.
Similarly, in Magee
v. Walbro, Inc., 171 Ill. App. 3rd 774 (1st. Dist. 1988), the plaintiff
sued to recover the value of a fur coat plaintiff had entrusted to the
defendant for storage in its locked and alarmed vault at the defendant’s
premises. In holding the defendant
liable for the lost or stolen fur coat the appellate court in Magee held
in favor of the customer finding that the mere existence of the fur storer’s
safety and security measures did not rebut the presumption of negligence. This case demonstrates that even if a room is
secured there still may be presumption of negligence in permitting the loss,
theft or destruction of personal property.
See also, Dunne v. South Shore Country Club, 230 Ill. App.
11 (1st. Dist. 1923) (country club, as bailee, held liable for a fur coat checked
with club staff that was either lost or stolen from the club’s secure storeroom
as a result of the club’s negligence).
In Cornelius v.
State of Illinois, 38 Ill. Ct. Cl. 254 (Illinois Court of Claims 1985), a
former prison inmate was able to recover the value of items taken from him
which he had deposited with the prison at the outset of his incarceration. The Court of Claims in Cornelius held
that “While bailment is ordinarily a voluntary contractual transaction between
bailor and bailee, various types of constructive and voluntary bailments have
been recognized: ‘A constructive bailment can be created between an owner of
the property and one in possession thereof. . . .Where, otherwise than by
mutual contract or bailment, one person has lawfully acquired the possession of
personal property of another and holds it under circumstances whereby he ought,
upon principles of justice, to keep it safely and restore it or deliver it to
the owner, such person and the owner of the property as, by operation of law,
generally treated as bailee and bailor under a contract of bailment,
irrespective of whether or not there has been any mutual assent, express or
implied, to such relationship.” Cornelius
at 254. The Cornelius case demonstrates that by agreeing to store
property, an absence of a formal written agreement may not prevent a bailment
agreement, and therefore may create liability in the person or entity
maintaining the property.
In Wright v. Autohaus
Fortense, Inc., 129 Ill. App. 3d 422 (4th Dist. 1984), the appellate court
affirmed a judgment in favor of an automobile owner against a repair shop for
damage to the automobile that occurred while it was stored on the defendant’s
premises. The appellate court in Wright
rejected the repair shop’s argument that because the automobile owner retained
a set of keys to the automobile the shop could not be held liable for the
damage. This point of law was repeated in Liberty Mutual Insurance Co. v. Zurich
Insurance Co., 402 Ill. App. 3d 37 (1st Dist. 2010): “The owner’s
simultaneous access to the property at issue does not preclude a finding of
care, custody or control.” (The hotel was held liable for guest’s
jewelry stolen from a wall safe located in their hotel room given that
protection of those valuables forms an intrinsic part of the hotel’s work as an
innkeeper). The Wright and Liberty
Mutual cases demonstrate, the mere fact that the owner has access to the
bailed property will not prevent a potential bailee from being held liable as bailee.
If you have any questions or concerns regarding Illinois
litigation, please feel free to call the attorneys at Perl & Goodsnyder
(312/243-4500) or visit our website http://www.perlandgoodsnyder.com/. We have
over 50 years combined experience and are eager to use our experience to assist
you reach the best available outcome.
