Opinion
No. 90-08481.
Decided January 30, 1992.
Jeffrey H. Weltman, for plaintiff.
Lee Fisher, Attorney General, and Eric A. Walker, Assistant Attorney General, for University of Akron.
Scott C. Smith, for B.R. Johnson Cleaning Services, Inc.
This action came on for trial on October 15, 1991. Plaintiff, Christopher J. Daugherty, alleged that defendant, University of Akron, breached a contract for bailment when defendant failed to return plaintiff's property. The disposition of the third-party action, Univ. of Akron v. B.R. Johnson Cleaning Serv., Inc., will be determined subsequently in a bifurcated trial. Trial dates have not been set by this court.
In late 1989 or early 1990, Neil Sapienza, an assistant professor of commercial art for defendant, notified plaintiff that defendant was accepting applications for a tenure-track professorial position in the commercial art department. Consequently, on or about February 3, 1990, plaintiff submitted an application for employment in conjunction with a professional photographic portfolio. Plaintiff's portfolio consisted of eleven original transparencies, thirteen duplicate transparencies and five TransVue mats contained within a portfolio case.
In early April 1990, Sapienza informed plaintiff that the portfolio was lost. Sapienza later determined that the portfolio had been thrown away by third-party defendant, B.R. Johnson Cleaning Services, Inc. There is some dispute as to the location of the portfolio on the night of its disappearance. However, Sapienza assumes, and the court accepts for the purposes of this trial, that plaintiff's portfolio was placed upon a box situated on the trash receptacle in Sapienza's office by another Hiring Committee member who reviewed plaintiff's work earlier that day. Determination of the exact location and method of disposal of the portfolio will be made, if necessary, in the court's resolution of the third-party action.
The court, having considered the totality of the evidence and testimony, renders the following decision.
Plaintiff's claim is framed as an action in contractual bailment, alleging that a prima facie case for breach of a bailment contract existed. To establish a prima facie case against a bailee in a contractual bailment, the bailor need only prove: (1) the existence of a contract of bailment, (2) delivery of the bailed property to the bailee, and (3) failure of bailee to redeliver the bailed property undamaged at the termination of the bailment. David v. Lose (1966), 7 Ohio St.2d 97, 36 O.O.2d 81, 218 N.E.2d 442.
The first element plaintiff must prove to establish a prima facie case for breach of contractual bailment is that a contract existed between plaintiff and defendant. The evidence presented to the court not only establishes that a contract for bailment existed, but also supports plaintiff's allegation that the bailment created was one of mutual bailment. In a contractual bailment for mutual benefit, bailee must exercise ordinary care when caring for the bailed property. Aetna Cas. Sur. Co. v. Woody Sander Ford (1969), 21 Ohio App.2d 62, 50 O.O.2d 107, 254 N.E.2d 700. The court finds that both plaintiff's and defendant's benefits accrued simultaneously. Plaintiff's benefit arose from potential employment as a professor in defendant's commercial art department and defendant's benefit occurred upon review of plaintiff's portfolio and application. The mutually beneficial bailment created between plaintiff and defendant continued until defendant notified plaintiff that his portfolio could not be redelivered. Accordingly, the court finds that plaintiff met the first element required to prove a prima facie case for breach of a contractual bailment and therefore defendant must exercise ordinary care when caring for plaintiff's bailed property.
The uncontradicted evidence presented to the court clearly establishes that the remaining two elements of a prima facie case for breach of a contractual bailment were also met. Delivery of the bailed property to the bailee occurred when plaintiff submitted his portfolio and application for review by defendant, thereby satisfying the second element. The third and final element was satisfied when Sapienza notified plaintiff that defendant could not redeliver plaintiff's portfolio.
Accordingly, the court finds plaintiff has adequately satisfied all three elements and therefore has clearly established a prima facie case for breach of a contractual bailment. Once a prima facie case for breach of a bailment contract is proven in an action by bailor against bailee for failure to return property, the burden of going forward with the evidence shifts to the bailee to explain the failure to redeliver. Agricultural Ins. Co. v. Constantine (1944), 144 Ohio St. 275, 29 O.O. 426, 58 N.E.2d 658. If such a failure occurs, the court may then presume an inference of negligence or want of due care. Id. To rebut and overcome this inference, bailee must, at a minimum, offer evidence to counterbalance the bailor's allowable inference. Id. Therefore, in the case before the court, an inference of negligence by defendant may be drawn from the fact that plaintiff's bailed property was not returned to him.
In determining defendant's negligence and potential liability, the court must delineate whether or not the evidence submitted by defendant regarding the failure to redeliver adequately rebuts plaintiff's inference of negligence.
Plaintiff further asserted that defendant owed plaintiff a duty of ordinary care to redeliver plaintiff's bailed property. The court agrees. "The general and accepted rule is that the bailee (defendant) must exercise ordinary care in safeguarding bailed property." Aetna Cas. Sur. Co. v. Woody Sander Ford, supra, 21 Ohio App.2d at 65, 50 O.O.2d at 109, 254 N.E.2d at 702. Defendant's explanation assumes that plaintiff's bailed property was disposed of by third-party defendant, B.R. Johnson Cleaning Services, Inc. While plausible, defendant's explanation clearly does not overcome or even counterbalance plaintiff's inference of negligence. For the aforementioned reasons, the court finds and concludes that defendant's care of the bailed property did not constitute ordinary care. Thus, the court finds that defendant was negligent in failing to redeliver plaintiff's bailed property.
In the calculation of plaintiff's damages, the court recognizes and relies upon the unique and personal nature of plaintiff's portfolio. Both plaintiff's and defendant's expert witnesses' testimony on damages contained consistent and inconsistent assessments regarding the value of the bailed property.
It is clear to the court that the value of plaintiff's portfolio varies with individual use and perception. In light of the subjective nature of art, the speculative testimony regarding future income from plaintiff's portfolio, and the overall perceived value of plaintiff's work, the court renders a decision for plaintiff in the amount of $3,200.
Judgment for plaintiff.
RUSSELL LEACH, J., retired, of the Franklin County Municipal Court, sitting by assignment.