BG Legal: Suing a store for negligence?

[Kwijiboe]

I would argue that they're not 'taking' people's stuff; they're simply not allowing it to enter into the area where they keep their merchandises. People with bags kept stealing the 14 inch blackhawks.

[Heavencloud]

My advice: GO TO THE LOCAL NEWS! They eat up stuff like this. Given the stores content it would probably only make it to the 11oclock news though, lol.

[Kellanved]

I wasn’t going to bother… but:

As a matter of law, based on the facts as you state it, you can probably state a cause of action for negligence.

Restatement 2nd of Torts section 323: Negligent Performance of Undertaking to Render Services:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking.

Restat 2d of Torts, § 323

Comment a goes on to state:

a. This Section applies to any undertaking to render services to another which the defendant should recognize as necessary for the protection of the other's person or things. It applies whether the harm to the other or his things results from the defendant's negligent conduct in the manner of his performance of the undertaking, or from his failure to exercise reasonable care to complete it or to protect the other when he discontinues it. It applies both to undertakings for a consideration, and to those which are gratuitous. Restat 2d of Torts, § 323.

It should be noted that a Plaintiff can recover for loss of property or damages to property under this rule and not just for physical harm. The reason for this should be obvious and forms the basis for why this rule exists under negligence law. Under the circumstance in question a duty exists.

The threshold question that must be asked before anything else with respect to Negligence law is whether a duty exists.

The duty of care arises from the agency relationship that is created by the undertaking to render services.

Restatement 2nd of Agency, section 379(2): Duty of Care and Skill:

(2) Unless otherwise agreed, a gratuitous agent is under a duty to the principal to act with the care and skill which is required of persons not agents performing similar gratuitous undertakings for others. Restat 2d of Agency, § 379


Comment on Subsection 2 states:

e. The liability of gratuitous agents to their principals for failure to exercise care is determined by the same principles which apply to the liability of persons who are not agents and who gratuitously act for the benefit of others, such as gratuitous bailees and hosts rendering services to guests. The rules which are applicable to the liability of such persons to those for whom they render service are stated in the Restatement of Torts, Sections 323 and 324. Restat 2d of Agency, § 379

OP if, as you stated and implied, the store required you to leave your items with them for safekeeping then an agency relationship is created and you can probably state a cause of action for negligence.

If however, it was specifically communicated to you that the store was not going to be responsible for your belonging when they told you to leave it with them then obviously no undertaking to render services has occurred and they might as well have told you to leave your shit outside. (In which case, why would you have left it with them?). I doubt that would be a good business policy for stores that don’t allow potential customers to bring bag in, so I’m going to guess your situation is the former.

In my experience and as Kyod said, stores that don’t allow bags inside but let you leave it in their care will have some minimal system of keeping your shit safe. (Whether it’s sufficient or not is an argument of breach)

Galkaeater, you’re on the right track. If something makes sense it probably corresponds to the requirement of law. (Keyword, probably)

All of that aside, the more important consideration as Jmcgarrell pointed out is often not whether you can sue, but whether you should sue. As things stand, it doesn’t appear that you’ve suffered any substantial damages beyond something you’d bring to a small claims court.

“Real” litigation can be notoriously expensive and bothersome. You may want to do all you can to resolve your issue and minimize your damages before you resort to litigation.

[aurik]

“Real” litigation can be notoriously expensive and bothersome. You may want to do all you can to resolve your issue and minimize your damages before you resort to litigation.

^

Look to resolve it amicably. And accept that you may not get 100% of your stuff back. That's life.

[Anoat]

Thanks for the advice all. Here is a bit of follow up. We are in Florida for whoever was inquiring about which state's laws to go by. I definitely don't think that the girl who worked at the store was "in on it" with the man who took my roommate's purse. She was way too dumb (lol) and helpful after the fact. The store does not have any "system" of checking bags like tickets, ID, or anything like that. So the dumb bitch that handed off the purse just made a dumb bitch mistake, unfortunately one that is costing myself and my roommate some money. My roommate spoke with the manager by phone today, and he says he has seen the footage of the incident. He apologized profusely and says there has never been an incident like this in the 6 years he has operated that store. (Yeah, right.) He said he already fired the store clerk that handed off the purse and would be turning over the tape to the detectives to see what they could find (though I have encouraged my roomie to definitely verify this with the detective herself). He seemed genuinely sorry my roomie said, but as we have both been thinking, sorry doesn't seem like enough. I think my roommate is going to approach the manager to see if we could get reimbursement for the items lost (verified with police report and receipts), but if not I believe there to be legal action down the line.

[SwampdonkeyPLD]

You have a pretty low burden in this case.

The negligence here is derived from a bailment. Because the bailment was to the benefit of the bailee (store) you only need to prove slight negligence. The real question is whether it's worth it for an attorney to take your case.

Edit: I think in some jurisdictions the bailee's duty is actually governed by strict liability, not negligence.

Edit#2: And you're probably fucked on the ipad b/c it was probably a hidden item. Not sure if strict liability changes that.

[Melena]

Do you really need an attorney for what would be a small claims case? If the owner refuses to settle, tell him then the next step is to file a claim in small claims court and that you'll also bring your story to the news. Nine out of Ten times a small business owner is just going to settle at that point as he most likely doesn't have the money to spend on an attorney either. I went through something similar with my apartment and I couldn't even get a call back till on the third day I left a voice mail stating they had 24hrs or I'd begin the process of filing in small claims and that there would be no settlement at that point. Shit got resolved quick after that.

[Cream Soda]

Lol I think the news would be more damaging to the OP than the shop.

"This guy got his stuff stolen at the dildo store!"

[Melena]

He lives in Florida. I'm sure the dirty old retired man segment is a good chunk of that porn store's sales and they wouldn't want to risk that.

[Kellanved]

You have a pretty low burden in this case.

The negligence here is derived from a bailment. Because the bailment was to the benefit of the bailee (store) you only need to prove slight negligence. The real question is whether it's worth it for an attorney to take your case.

Edit: I think in some jurisdictions the bailee's duty is actually governed by strict liability, not negligence.

Edit#2: And you're probably fucked on the ipad b/c it was probably a hidden item. Not sure if strict liability changes that.

To more completely state the law.

You mean, more properly, the duty arises from the bailment relationship that was created. An agency relationship can also be said to have arisen in this case. Under both theories the same duty is imposed. The law is consistent in this area.

Courts have decided cases dealing with the issue under bailment or negligence theory, depending on what is pleaded, any agreement of the parties, or absence of bailment elements. However, negligence is still the underlying theory giving rise to liability. Even in cases where Agency or Bailment principles are missing, one of the basic principles of Negligence law is that there is no affirmative duty to act for the benefit of another; no “duty to help,” but once a party has undertaken to do something gratuitously for another, a duty arises.

“When a case is decided under bailment principles, the first question a court must answer is whether a bailment relationship has arisen between the customer and business. Most courts follow the general rule that a business will be liable as bailee only if a patron gives physical custody of the apparel to the proprietor, which establishes an actual bailment, or necessarily lays aside the item, a fact known to the proprietor, which establishes an implied or constructive bailment.

The court must next determine what type of bailment is at issue. A gratuitous bailment is established solely for the benefit of the bailee; a bailment that benefits only the bailor may also be established.

Courts in the cases included herein, however, usually have determined that between customer and proprietor, a mutually beneficial bailment, also known as a bailment for hire, has arisen, establishing the duty of the latter to exercise due or ordinary care over the property subject of the bailment. Thus, even under bailment principles, a proprietor's negligence is at issue, since the business owner must exercise only ordinary care over the property and is not deemed an insurer of his or her customers' valuables.

An important question in these cases is over what property the bailee is required to exercise due care. The general rule is that the bailment relationship pertains only to those items which a customer must necessarily lay aside while transacting business, or to those items of which the business has notice; in contrast, property of unusual value which is not brought to the business' attention may be outside the parameters of the business' duty of care.” 54 A.L.R.5th 393, 2b

If you're going to say he can't recover the items in the bag, you might as well say the only thing he can recover is the bag. I doubt this would be the result. Constructive notice will probably play some part with respect to that issue and the rest is a question of prove.

Further, there is no liability without fault in this area of the law. No Strict liability. I doubt any jurisdiction has such a rule. Although, some courts play burden of proof shifting games.

“Some courts have applied the rule that once a customer who attempts to predicate liability on the theory of bailment against a business owner for the loss of property adequately establishes the elements of bailment and the bailee's failure to return the property upon demand, the burden shifts to the business owner to show that the loss occurred without his or her fault or a presumption arises that the business failed to exercise the required due care.” 54 A.L.R.5th 393, 3

Florida Law:

§ 17 Bailment for mutual benefit

“Where a bailment is for mutual benefit, the bailee is held to the exercise of ordinary care in relation to the subject-matter thereof, and is responsible only for ordinary negligence. In other words, the bailee is answerable for loss or injury resulting from his or her failure to exercise such care or diligence.

Thus, unless otherwise provided by contract, a bailee is not an insurer of the property delivered into its keeping and is not liable for the loss of the thing bailed, except where there is a breach of the duty of the requisite degree of care. As a general rule, in the absence of negligence or violation of his or her special contract, a bailee is not liable for loss in respect of the thing bailed resulting from the inherent nature or some infirmity of the property itself, disaster, or accidental casualty.

The bailee is not liable if the property bailed is injured by accident, or by some other means wholly without the bailee's fault; in the absence of some special stipulation, an injury to or loss of the property falls on the bailor. This would apply to loss or damage to the bailed property because of internal decay or a defect in such property, or the negligence of a third person.

The test is whether the bailee exercised that degree of care toward the goods that a reasonably prudent person would bestow on his or her own goods.” 5 Fla Jur Bailments § 17

[SwampdonkeyPLD]

An agency relationship can also be said to have arisen in this case.

That's flat out wrong.

Courts in the cases included herein, however, [b]usually[b] have determined that between customer and proprietor, a mutually beneficial bailment, also known as a bailment for hire, has arisen, establishing the duty of the latter to exercise due or ordinary care over the property subject of the bailment. Thus, even under bailment principles, a proprietor's negligence is at issue, since the business owner must exercise only ordinary care over the property and is not deemed an insurer of his or her customers' valuables.

I think these facts are why they used the word "usually" instead of "always". This bailment isn't for the customer's benefit.

If you're going to say he can't recover the items in the bag, you might as well say the only thing he can recover is the bag. I doubt this would be the result. Constructive notice will probably play some part with respect to that issue and the rest is a question of prove.

Intent to control is one element of a bailment. You can't intend to control items you don't know exist.

And to the rest, I don't think there is mutual benefit here.

[Kellanved]

That's flat out wrong.



I think these facts are why they used the word "usually" instead of "always". This bailment isn't for the customer's benefit.



Intent to control is one element of a bailment. You can't intend to control items you don't know exist.

And to the rest, I don't think there is mutual benefit here.

The vast majority of legal authority and case law disagree with your contentions.

Further, I recommend doing some study on Agency law. Agency relationships have been found to exist where one friend borrows another’s car.

For your benefit:

Agency is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other to so act. See Restatement (Second) of Agency.

It can arise in very simple settings, with respect to even a single transaction. If A agrees to help B hold his bag. A is B's agent for that purpose. We're done here.

[SwampdonkeyPLD]

Except in this scenario it's called a bailment, not an agency.

[Anoat]

BUMP FOR RESOLUTION BECAUSE I HATE WHEN PEOPLE LEAVE THINGS UNRESOLVED!!!

So to conclude the story, the cops were never able to find the jerk that stole our stuff, which I figured would be the case since there was no video of his vehicle. The store owner at first agreed to reimburse us personally if we could provide documentation of the costs of all the assorted items. This took my roommate quite a while to track down, but eventually we did, and it came to the sum of around $2500 and some change. The manager then said "lolno I'll give you $200", to which we said "fuck you we'll see you in court". So it went to court, the manager never showed up, judge reviewed all documents and evidence (even got the cops who responded that night to appear in court on our behalf!), and ruled in our favor. The store was ruled to reimburse us for court costs and costs of items stolen. 2 months go by and we still haven't seen a dime, go back to court again, manager once again doesn't show up, so the judge places a lien on the porn shop until we are paid. Still waiting on that money, but I believe we are definitely headed toward a happy ending. (HAR HAR.)

Thanks to all who gave good advice!

[Tyche]

Congratulations on your new sex store.

[Day]

Congratulations on your new sex store.

it's gonna be fucking awesome

[Headspace]

OP finally delivered?

I bet Tyche wishes Stephen Ross was like OP

[Chips]

So what exactly does this lien entitle you to? The profits of the shop being earned while the payment has to be completed?

[aurik]

Basically a lien is a legal instrument giving a person, business, etc. the legal right to take, hold or sell another person's property for debt or restitution of some sort. There are many forms of liens, judgment liens pertain to lawsuits, tax liens, contractual liens, and so forth.

Here is the Wikipedia summary: "In U.S. law, lien is the broadest term for any sort of charge or encumbrance against an item of property that secures the payment of a debt or performance of some other obligation.

"Liens can be consensual or non-consensual. Consensual liens are imposed by a contract between the creditor and the debtor. These liens include:

mortgages;

car loans;

security interests;

chattel mortgages."

A lien is a formal notice of rights to property being pledged for a debt should the debt not be repaid as agreed. For instance, if a bank makes a loan to a business for the purchase of new equipment, the bank will obtain the serial numbers from the equipment (as well as a description of the equipment) and file a UCC lien against the equipment. This is available for other lenders to search (who may be considering making a loan to the company) to notify them that the bank has rights to the equipment should the business default on the loan.

Basically he can claim property as collateral until the debt is paid (including selling that property for repayment).

[Seanr]

sweet, fleshlights and real dolls for everyone! congrats on the resolution. I was like why the fuck is this old as thread popping up lol