Opinion
1642204.
Decided May 26, 2005.
James A. Brown, plaintiff pro se.
Gilberto, Guasraferri Nuccio, New York City (Paul V. Noccio), for Edison Parking Corporation, defendant.
In this action, plaintiff James Brown seeks compensation from defendant Edison Parking Corporation (Edison) for the damage caused to his Escalade pick up truck while it was parked in a garage operated by Edison. At trial on April 26, 2005, plaintiff and his wife testified on his behalf. Defendant presented the testimony of Wilfred Neblett, the current facilities manager for the garage at which plaintiff's truck was parked when it was vandalized. For the reasons set forth below, the Court grants judgment for plaintiff in the amount of $4,989.12, with interest from February 21, 2004, plus costs.
FINDINGS OF FACT
The Court makes the following findings of fact, based on the testimony and the documents introduced at trial.
In January, 2004, Mr. Brown looked for a garage at which he could safely park his 2002 Escalade pickup truck (the Truck or the Escalade). He visited defendant's facility at 3333 Broadway (the Garage), and asked the person on duty if his Truck would be safe there. The person on duty assured him that the Garage, a 24 hour facility staffed around the clock, was a safe place to park his Truck. On or about January 26, 2004, Mr. Brown entered into an agreement with defendant that he would park his Truck at the Garage for a monthly fee of $190.00. With his initial check of $250.00, he paid for the monthly fee for February, and for six days of parking in January at the daily rate.
In May 2003, Mr. Brown had outfitted the Escalade with two 6.8" TV screens, one 15" TV screen, a DVD, a VCR and an FM modular at a total cost, including installation and tax, of $4,752.00. The larger TV screen was suspended from the ceiling and the two smaller ones were bolted into the rear of the head rests of the two front seats. The DVD player and VCR were installed under the rear seat. Mr. Brown also had an alarm system installed in the Truck.
On February 16, 2004. Mr. Brown parked the Truck in the Garage in a space on the ramp between the first and second levels. He was directed to the space by Mr. Sewkumar, the manager of the Garage, who had previously directed him to park in that area. After parking and locking the Truck, Mr. Brown exchanged pleasantries with Mr. Sewkumar and left the Garage.
Mr. Brown returned to the Garage on February 21 and observed that the window on the driver's side of the Truck had been shattered, and that there were shards of glass all over the Truck's interior. Mr. Brown also observed that the TV monitor had been ripped from the ceiling of the truck. He immediately notified Mr. Sewkumar whose first reaction was to say that there was nothing that he could do. Mr. Brown asked him to look at the Truck. Mr. Sewkumar then went into his office and gave Mr. Brown a claim form to fill out. He assured Mr. Brown that the Truck would get fixed.
Mr. Brown filled out the claim form and returned it to Mr. Sewkumar, who gave him a receipt. Mr. Brown then called the police. Two police officers came to the Garage, took fingerprints and completed a report. While they were there, Mr. Brown got into the Truck and observed that the back seats had been lifted, and that his VCR had been removed. Mr. Brown also called his wife who came to the Garage and took pictures. At that time, Mr. Brown realized that the two TV monitors installed into the head rests on the front seats had also been removed. and that there was a gaping hole in the back of each head rest. Mr. Brown also realized that the DVD player, installed with the VCR under the rear seat, had been removed as well. The DVD player and the VCR were bolted into the floor of the Truck, under the carpet, just as the TV monitors were bolted into the headrests. As a result, the electronic equipment could not have been removed quickly or easily. Mr. Brown also stated that the shattering of the window would have set off the alarm in the Truck.
Mr. Brown took the Truck to Elite Auto Repair, which repaired the broken glass and a bent rear rim at a cost of $237.12.
The following Monday, Mr. Brown called Claims Services, at the phone number listed on the receipt for his claim form, and was told that there was no record of his claim. Mr. Brown then returned to the Garage and filled out another claim form. He did not make a copy of it or receive a receipt for it. In response to the two claims, Mr. Brown received one letter from Network Adjusters, Inc. and two letters from Claims Services, signed by Shirley Stegall. The letter from Network Adjusters, Inc. stated that Edison was not responsible for Mr. Brown's loss because he had parked his own vehicle. Claims Services was the entity named on the receipt for Mr. Brown's claim form. In the first letter, Ms. Stegall said that she had been unable to reach Mr. Brown. In response, both Mr. Brown and Mrs. Brown called Ms. Stegall on numerous occasions. Eventually, Mrs. Brown reached Ms. Stegall and, at her request, faxed her a list of the missing items and her estimate of their value. Ms. Stegall's second letter stated, that as a "valet service provider, we are obligated to take reasonable measures to safeguard your vehicle from foreseeable incidents that may result in damage to, or loss of, your vehicle." She went on to state that "our Company" was not responsible because Mr. Brown had left the parking facility without reporting any damage to his vehicle.
Mr. Brown did not park his Truck at the Garage again after February 21. However, he continued to pay the monthly fee through June 2004. He did this because he continued to receive bills. Also, he hoped that the Garage would reimburse him for his loss, and he intended that he would then start parking at the Garage again. He stopped paying the monthly fee because he felt that Edison had not respected his property. He has continued to receive bills through the date of trial.
ANALYSIS
First, I will address my factual findings and various issues that arose at trial. Generally, I credited Mr. Brown's testimony both because his testimony was credible and forthright and because defendant's witness did not contradict Mr. Brown's testimony in any substantial way. Defendant's counsel attempted to impeach Mr. Brown by pointing out that on both the claim form and the police report, he did not list as stolen all of the items which he identified at trial as having been stolen. However, the Court finds that this discrepancy is not significant and does not impeach the overall validity of Mr. Brown's testimony for two reasons. Most significantly, Mr. Brown testified that he was very upset upon discovering that his Truck was vandalized. In light of his distress, his failure to record all of the missing items does not discredit his testimony. In addition, defendant failed to produce any witnesses to contradict Mr. Brown's description of the items taken from the Truck.
Defendant's counsel also attempted to impeach Mr. Brown by arguing that he had parked in an illegal space. In support of this, defendant's counsel submitted its employee's Accident Investigation Report on which Mr. Sewkumar had written that the Truck had been parked illegally. I do not credit this statement, in view of the fact that Mr. Brown testified that Mr. Sewkumar had told him to park on the ramp, and that defendant chose not to produce Mr. Sewkumar as a witness at trial. More importantly, even if the Truck had been parked illegally, that would have no impact on the defendant's liability, since defendant does not claim that Mr. Brown's use of an allegedly illegal parking space made the Truck more susceptible to be vandalized.
Third, Mr. Brown attempted to introduce at trial photographs of other cars and trucks which he claimed had been vandalized in the Garage to show that defendant was on notice that the Garage was unsafe. The Court rejected the tender of these photographs because Mr. Brown testified that he only knew the condition of the vehicles in the photographs on the date that the photographs were taken. Therefore, he could not testify as to whether they entered the Garage in that condition, or whether the damage had occurred many years before. Consequently, the Court found that the photographs were not probative, and declined to admit them into evidence.
Finally, Mr. Brown testified that he had initially sued for only $3,829.27, because, at the time he filed, he could not locate the receipt for the purchase of the electronic equipment. When he testified at trial that the cost of the items exceeded the amount he sued for, he requested leave to amend his complaint to conform to the proof adduced, and the Court permitted him to do so. The Court finds that the defendant was not prejudiced by this amendment since Mr. Brown had provided to the defendant during the summer of 2004 a copy of his invoices for the purchase and installation of the stolen items, and for the repairs to his Truck. Accordingly, defendant was on notice as to the extent of Mr. Brown's damages.
The Court now turns to defendant's legal argument. Defendant argues that Mr. Brown had only a license to leave his Truck at the Garage. It further argues that, as a licensor, defendant is not liable unless Mr. Brown proves that its negligence caused his loss, which, it argues, Mr. Brown failed to do. The Court disagrees with defendant on both issues. "The ordinary relationship between a customer and a garage owner is that of bailor and bailee" ( Motors Ins. Corp. v. American Garages, Inc., 98 Misc 2d 887, 889 [App Term, 1st Dept 1979]), but under certain circumstances, the Courts have found that the relationship was only that of a licensor and licensee. In Ellish v. Airport Parking Co. of America, Inc. ( 34 NY2d 882, affg 42 AD2d 174 [2nd Dept 1973]), the Court of Appeals set out factors for determining whether the customer was only licensing a space, and was therefore not entitled to the greater protections afforded to a bailor. Specifically, the Court held that the nature of the relationship can be determined by examining: 1) the nature of the service being provided; 2) whether the relationship is impersonal; 3) whether the driver retains control of the car; 4) the written terms of the agreement, including, for example, whether the garage disclaimed responsibility; 5) the presence of notices in the garage advising customers that they were parking at their own risk; and 6) the size and degree of activity of the facility. The Court then applied those factors to the case in front of it. Specifically, it noted that the customer had parked her car in a very large and obviously bustling open parking lot at the airport, in which she was merely renting a space to place her car while she was away. The Court noted that she had retained her keys, and that her relationship to the lot was impersonal since she had no contact with a person upon leaving her car and no expectation that she would see a person upon retrieving her car. The Court also noted that the ticket given to the customer warned her to lock her automobile and that the lot was posted with warnings that the lot was not attended and that she was parking the car at her own risk. Based on these facts, the Court held that the garage had given the customer merely a license to occupy the space, and was not liable for the disappearance of her car.
The facts in this case are quite different. Mr. Brown made specific inquiries before renting space in the Garage to determine whether it was safe, and was assured that it was staffed 24 hours per day and that his car would be safe there. He knew the attendants, and they directed him, at least some of the time, as to where to park his car. There is no evidence presented at trial that Mr. Brown was given a ticket or a written agreement or that there were any notices posted in the parking facility limiting the Garage's liability or defining its relationship to its customers. The Garage was an enclosed space, and there was no evidence that it was unusually busy. In light of these facts, I find that Mr. Brown's monthly parking arrangement with the Garage created a bailor-bailee relationship. ( See Sealey v. Meyers Parking System, 147 Misc 2d 217, 220 [Civ Ct, Queens County 1990])
The cases cited by defendant other than Ellish are similarly distinguishable from the facts before the Court. In Gadsden v. Allright Parking Mgmt., (2002 NY Slip Op 50255[U], *2 [App Term, 1st Dept 2002]), the customer had been advised that defendant assumed no "responsibility for damage to cars;" Mr. Brown was given no such warning. In both Rothberg v. Meyers Parking System (NYLJ, Dec. 12, 1996, at 29, col 1 [1st Dept 1996]) and Rembert v. Co-op City Parking Garage # 2 ( 86 Misc 2d 399 [App Term, 1st Dept 1975]), the garage and the customer entered into a written agreement which defined their relationship to be that of licensor and licensee. In this case, Mr. Brown had no written agreement.
A bailee who fails to use reasonable care is liable for any damages suffered by the bailor. ( Danielenko v. Kinney Rent A Car, Inc., 84 AD2d 159, 161 [1st Dept 1982]). Once the bailor shows that the bailee failed to return the item entrusted to it, the burden shifts to the bailee to provide a reasonable explanation for its failure to return the item. (Motors Ins. Corp., 98 Misc 2d at 889). Similarly, where the bailor shows that the item is returned damaged, the bailee should bear the burden of establishing a reasonable explanation for the damage. In this case, Mr. Brown has shown that the Garage failed to return the Truck in its original condition. The Garage failed to provide any explanation, much less a reasonable one, for its failure to return the Truck with all of its entertainment systems intact. Having failed to meet its burden, the Garage must be found liable to Mr. Brown.
Alternatively, even if I had found that the relationship between Mr. Brown and the Garage did not rise to the level of bailor and bailee, the result would be the same. "[T]here is nothing magical about the landlord-tenant relationship that negates liability for negligence under all circumstances." ( Motors Ins. Corp., 98 Misc 2d at 890). Where the garage's relationship to its customer is that of licensor and licensee, the garage may still be liable upon proof of its negligence. ( Ellish v. Airport Parking Co., 42 AD2d 174, 179 [2nd Dept 1973], affd 32 NY2d 882). The degree of care owed by the garage under those circumstances has been variously described as a minimal degree of care ( Greenberg v. Kinney Systems, 141 Misc 2d 706, 708 [Civ Ct, Queens County 1988]) or reasonable care under the circumstances ( Linares v. Edison Parking, Inc., 97 Misc 2d 831, 832 [Civ Court, NY County 1979). In Linares, the Court held that the garage had failed to exercise reasonable care where the front wheels and tires of the customer's car had been removed with sufficient noise to put the defendant's employee on notice that some action on his part was required. Similarly, in Greenberg, the garage was held liable where the customer's car window was broken and many items were removed from the car. In Motor Insurance Corp., ( 98 Misc 2d 890) the garage was held liable for the theft of a customer's car, where two armed men entered the garage and the attendant ran away, leaving the keys to the customer's car hanging from a pegboard in an unlocked office. The Court found that the garage's action in leaving the keys in clear and open view in an unattended office was negligent ( Id.)
In this case, the Court finds that the Garage failed to exercise a reasonable degree of care. Plaintiff proved that the breaking of the windows in his Truck would have set off the alarm. He also proved that it would have taken a substantial amount of time for an individual to unbolt the three TV screens from the roof and head rests, to lift the backseat and unbolt the DVD and VCR player, and to cut all of the connecting wires. Plaintiff chose to park at the Garage knowing that it is staffed around the clock, In the exercise of reasonable care, the Garage's employees should have reacted to the Truck's alarm and observed that someone was inside the Truck for a considerable period of time dismantling all of the electronic equipment. Consequently, I find, under the circumstances proven by plaintiff, that the Garage failed to exercise due care and is liable to plaintiff.
One further matter deserves comment. In his dissent in Ellish, Justice Shapiro stated that he found unpersuasive the cases relied on by the majority because they relied on the "outworn limitation of the law of bailment." Justice Shapiro then proceeded to analyze the facts in front of him not by applying the law of bailment, but by considering instead whether the defendant used "reasonable care" with respect to the customer's car, taking into account the "nature of the relationship" between the owner and the customer. ( 42 AD2d at 182). Two years later, Justice Shapiro's modern, common sense approach was adopted by the Court of Appeals in its landmark decision in Basso v. Miller ( 40 NY2d 233, 241) which abolished the use of antique categories to determine liability. In that case, the Court of Appeals held that the duty owed by a landowner to an individual injured on defendant's land should be based on whether the defendant exercised "reasonable care under the circumstances" rather than whether the injured person could be best categorized as a trespasser, licensee or invitee. ( 40 NY2d at 241; see also Scurti v. New York, 40 NY2d 433, 442). It is high time that the Courts adopt a similar single standard of care in cases involving the liability of garage owners to their customers. ( See also Garlock v. Multiple Parking Services, Inc., 103 Misc 2d 943, 954 [City Ct, Buffalo 1980]).
CONCLUSION
The Clerk is directed to enter judgment in favor of Mr. Brown and against defendant in the amount of $4,989.12, with interest from February 21, 2004, plus costs.