Vail Law: Who knew that checking your coat is a kind of ‘bailment’ (column)
February 13, 2018
You've got two tickets to paradise. And a heavy winter coat. Buttoned up to the bottom of your chinny-chin-chin.
Tickets clutched in your eager fist, you queue up, gently pressing to get in. It is so cold outside, you can see your breath rising like marauding ghosts. When at last the promised land appears — all glittery chandeliers, the cricket-buzz of expectant concertgoers and bonhomie — you finally slide in the double glass doors. Your first thought is, "Man, is it hot in here!" Your second is wondering where you can shed your six-pound down puffer.
You look about and spy it. There, in a far corner, near the overflowing bar, groaning under pre-game cocktails, is the coat check. You head directly for it, wondering, "Is this a gratuitous or non-gratuitous bailee?" Well maybe not. But allow me to explain.
A "bailee" is one to whom personal property is entrusted for a particular purpose by another, the "bailor," according to the terms of an express or implied agreement. Got that? "Personal property" is simply your stuff other than real estate. Presuming you didn't filtch it from someone else, your six-pound down puffer is part of your personal property. So far so good.
'Express or implied'
What about this "express or implied agreement" stuff? Well, when you get up to the front of the line and you hand over the goods, you enter into a sort of contract with the bailee; "Hey, I'm giving you my stuff — not permanently, mind you, but only to hold on to — and, man, it's cold outside so I'm going to need it back. In return for me handing it over, you agree to give me one of those little plastic tag thingies with a number on it that hangs over the hook of the coat hanger and when the concert bliss is over, I'll dig it out from the lint collected in my pockets and bring it back and you will hand me my coat. And — oh yeah — I agree to pay you three bucks for hanging on to it while I'm twerking to the music and you'll expect a tip."
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An "express" agreement is where the terms are specifically laid out. "Before we enter into this transaction, you will kindly fill out this five-page form in triplicate, acknowledging that you have read every last morsel of the fine print, have provided us with your Social Security number, six forms of official identification, your genotype and at least two letters or reference. Oh, and by the way, please sign in blood."
That stack of papers you blindly subscribe to at a real estate closing is an example of an express agreement. An "implied agreement," on the other hand is, "Hey, everybody knows the deal. You hand over your coat. I give it back, You pay the fare and everybody's happy."
These contracts of bailment can extend to oh-so-much more than simply coat checks. Some examples are banks holding bonds, storage companies where furniture or files are deposited, a parking garage, or a kennel or horse ranch where an animal is boarded. Leaving goods in a sealed rented box like a safe deposit box, is, however, not a bailment, and the holder is not a bailee since he does not handle or control the goods.
Gratuitous vs. Non-gratuitous
The house lights are flickering, so let's get through this before you have to take your seat. What about a gratuitous or non-gratuitous bailee? What's the difference?
A gratuitous bailment — also known as (oh my) a naked bailment is one made only for the benefit of the bailor and is not a source of profit to the bailee. It is a bailment offered as a courtesy and not to directly profit the bailee. As you might have guessed, a non-gratuitous bailment is the flip side; it is a bailment for profit.
As you might expect, a higher duty of care is imposed upon a paid bailee. There's a lower standard of care imposed upon a bailee in a gratuitous bailment. While both a gratuitous and non-gratuitous bailee must protect your stuff, a non-gratuitous or paid bailee — since he's profiting from the transaction — has the greater liability imposed upon him.
The bailee's standard of care is determined based upon the purpose of the bailment and whether it's for the benefit of the bailee alone, the bailor alone, or for the benefit of both parties.
If the bailment is for the benefit of the bailee alone, then the bailee owes a duty of extraordinary care. If the bailment is for the benefit of both the bailee and the bailor, then the bailee owes a duty of reasonable or ordinary care. Reasonable care is care that a person of ordinary prudence would exercise in the same or similar circumstances. If the bailment is a gratuitous bailment and is for the benefit of only the bailor, then the bailee owes only a duty of slight care. In all bailments the bailee has at least minimum duty of care to ensure the safety of the property. However, in a bailment agreement or contract, the parties can agree to hold the bailee free from liability. "I lost your stuff. Oh, well. We agreed that me holding it was on you."
One last thing before you scramble for the mosh pit — the concept of a "constructive bailment," which occurs when circumstances create an obligation for the bailee to protect the goods. In such case, the bailment is implied by law. For instance, in the case of a tenant, roommate or boyfriend or girlfriend abandoning property, an involuntary bailment might be created. Depending on the laws of the jurisdiction, a landlord or remaining tenants may have a duty to care for and even return property left behind by an abandoning tenant.
That settled now, enjoy the concert.
And, oh, on the way out, don't forget your coat.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Stevens, Littman, Biddison, Tharp & Weinberg, LLC. His practice areas include: business & commercial transactions, real estate & development, family law, custody & divorce and civil litigation. Robbins may be reached at 970-926-4461 or at Robbins@SLBLaw.com.