Opinion
SCK 2667/14
03-08-2016
Kaley Smith, , Plaintiff, v. Regal Entertainment, Defendants.
APPEARANCES Plaintiff Pro Se: Kaley Smith 562 Park Place, Apt. 1 Brooklyn, NY 11238 Attorney for Defendant Malapero & Prisco, LLP 295 Madison Avenue New York, NY 10017
APPEARANCES Plaintiff Pro Se: Kaley Smith 562 Park Place, Apt. 1 Brooklyn, NY 11238 Attorney for Defendant Malapero & Prisco, LLP 295 Madison Avenue New York, NY 10017 Katherine A. Levine, J.
This case presents the novel issue of whether the owner of a movie theater parking lot has a duty to protect moviegoers' cars which are parked in its lot.
Plaintiff Kaley Smith ("plaintiff" or "Smith") brought this small claims action for $5,000 against defendant Regal Entertainment Corp. ("defendant" or "Regal"), the operator of a movie theater and owner of an adjacent self-service parking lot ("the lot"), for damages her car sustained in the lot while she was in defendant's movie theater. Plaintiff claims that defendant was negligent in failing to maintain an appropriate level of security in the lot, and that this negligence caused her car to be vandalized. Defendant contends that it is not liable because no bailment relationship was created between the parties, and that in any event, it was not negligent.
A bailment is defined as "the delivery of personal property for a particular purpose under an express or implied contract with the understanding that it shall be redelivered to the person delivering it, or kept until he reclaims it after fulfillment of the purposes for which it was delivered." Castellano v. Key, 2014 NY Slip Op 32280(U), 2014 NY Misc. LEXIS 3885 (Sup. Ct. NY Co. 2014); 9 NY Jur Bailments and Chattel Leases § 1, citing Herrington v Verrilli, 151 F. Supp. 2d 449 (S.D.N.Y.2001); Ellish v Airport Parking Co. of Ame rica, 42 AD2d 174, 178 (2nd Dept. 1973), affirmed 34 NY2d 882 (1974). A bailment relationship exists only when it is supported by sufficient consideration, which lies in the detriment to the bailor by transferring possession of the property with the expectation that the bailee redeliver or account for it. 9 NY Jur Bailments and Chattel Leases § 1. See, Johnson v. Gumer, 149 AD2d 933 (4th Dept. 1989) (No bailment found where there was no detriment to the alleged bailor because he did not relinquish possession or custody of shares of stock); Goldman Sachs Mortgage Company v Natixis Real Estate Capital Inc., 2008 NY Slip Op 31280(U), 2008 NY Misc. LEXIS 9849 (Sup. Ct. NY Co. 2008) ("Bailment contracts are supported by sufficient consideration where there is a transfer of possession of the property"). When the bailor (the transferor) does not relinquish exclusive possession, control, and dominion over the property to the bailee (the transferee), a bailor-bailee relationship does not exist. Hutton v. Public Storage Mgmt., 177 Misc 2d 540, 541 (App. Term 2nd Dept. 1998) (No bailment where lessee at storage facility procured his own lock for storage space, and the rental agreement provided that lessor would have neither the key nor the combination).
Since plaintiff did not relinquish possession or control of her vehicle at any time, as she could enter and exit the lot without supervision, select her own parking space, lock her own car, and retain the keys, no bailor-bailee relationship was created. Ellish, supra, 42 AD2d at 178 (No bailment relationship was created where plaintiff drove into a self-service airport parking lot; received a ticket from an automatic device; drove her automobile into a parking space; locked it and took the keys with her); Burke v. Riverbay Corp., 2009 NY Slip Op 52386(U), 25 Misc 3d 139(A), 139A (App. Term 1st Dept. 2009) (Where the plaintiff parked his motorcycle at a parking garage without assistance and retained his keys, and his relationship with the garage operator was governed by a garage agreement which provided that the plaintiff was a licensee and that he parked at his own risk, no bailment relationship was established); Hutton v. Esplanade Gardens, Inc., 2009 NY Slip Op 52145(U), 25 Misc 3d 132(A) (App. Term 1st Dept. 2009) (No bailment found where plaintiff entered the parking lot through the use of a pre-issued access key and parked and locked her car without assistance while retaining her keys); Waterton v. Linden Motor Inc., 11 Misc 3d 836, 841 (Civ. Ct. Kings Co. 2006) (No bailment found where vehicle was parked and locked in underground garage at motel with no gate or security guard involved, since there was no relinquishment of "dominion and control").
That plaintiff bought a ticket to the movie theater and defendant benefitted by her business does not constitute sufficient consideration to warrant a finding that a bailment relationship existed since the essence of consideration is relinquishment of dominion and control. Indeed, in Ellish, supra, notwithstanding that plaintiff was booked for a flight and was required to pay for a parking ticket at the self-service airport parking lot, the court held that no bailment was created because possession of the vehicle was not relinquished. 42 AD2d at 178. Similarly, in Waterton, supra, despite the fact that the plaintiff parked in a garage at a motel and presumably paid for the motel, the court found that no bailment existed as there was no relinquishment of dominion or control of her vehicle. 11 Misc 3d at 837.
Since no bailment relationship was established, defendant is not liable for damages to plaintiff's vehicle unless plaintiff can prove that defendant was negligent and that such negligence was the proximate cause of the damages sustained by her. Ellish, supra, 42 AD2d at 176-177; Burke, supra; Hutton, supra; Linares v. Edison Parking, Inc., 97 Misc 2d 831, 832 (Civ. Ct. NY Co. 1979).
In order to prevail on a claim of negligence, plaintiff must demonstrate that defendant owes a duty to plaintiff, a breach of that duty, and that plaintiff suffered damage as a proximate result of that breach. Farash v. Cont'l Airlines, Inc., 337 Fed. Appx. 7, 9 (2d Cir. 2009); Solomon v. New York, 66 NY2d 1026, 1027 (1985); Bluth v Bias Yaakov Academy for Girls, 123 AD3d 866 (2nd Dept. 2014); Burgess v. City of New York, 205 AD2d 656, 657 (2nd Dept. 1994). The owner of a theater has a duty to "guard against risks which should be anticipated or averted by the exercise of ordinary care." Scott v. Lincoln Center for Performing Arts, Inc., 25 NY2d 999, 1000 (1969). Like any possessor of real property, defendant movie theater owner has the duty to maintain reasonable security measures to protect those lawfully on its premises from reasonably foreseeable dangers, including the criminal acts of third parties, though it is not the insurer of their safety or the safety of their property. Maheshwari v. City of New York, 2 NY3d 288, 295 (2004); Hartman v Milbel Enters., Inc., 130 AD3d 978, 982 (2nd Dept. 2015); Waterton, supra, 11 Misc 3d at 842.
To establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based on the prior occurrence of the same or similar criminal activity at a location sufficiently proximate to the subject location. Hartman, supra, 130 AD3d at 982. In this case, plaintiff presented no evidence that vandalism in the lot was "reasonably predictable." Furthermore, plaintiff's claim that defendant's failure to maintain adequate security in the lot caused her vehicle to be damaged is without merit, since plaintiff provided no proof that even with the placement of security devices on its premises, such vandalism could have been avoided.. See, Maheshwari v. City of New York, 2 NY3d 288, 294 (2004) (Random criminal attack is not a predictable result of the gathering of a large group of people); Polye v Nederlander Org., Inc., 131 AD3d 1031, 1032 (2nd Dept. 2015) (Any negligence on the part of defendant Broadway theater in allowing a patron to sit in the aisle during the show was not a proximate cause of the plaintiff's injury; defendant established that patron's act of spreading her coat open in the aisle after the show ended was an independent, intervening act that was not a normal or foreseeable danger); Salichs v. City of New York, 127 AD3d 406, 406-407 (1st Dep't 2015) (Claims against restaurant based on inadequate security system were speculative and without merit since confrontation which occurred in restaurant's parking lot and which resulted in off-duty police officer's death was "unforeseeable superseding or intervening conduct" between the allegedly flawed security response and the death).
Since plaintiff has not demonstrated that defendant was negligent in any manner, her action against Regal Entertainment is dismissed.
This constitutes the Decision and Order of the Court. Dated: March 8, 2016 ______________________________ HON. Katherine A. Levine Acting Justice Supreme Court