CITY OF CLEARWATER, JACK BRYANT AND BILL BURCHFIELD, APPELLANTS,
v.
EUGENE B. THOMAS, APPELLEE
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The City of Clearwater and its officers appealed a summary judgment finding them negligent as gratuitous bailees for a boat stolen from the marina while in their custody. The court reversed, holding that genuine issues of material fact existed regarding whether the City exercised sufficient care to negate gross negligence liability.
The court reversed the summary judgment because the City presented evidence rebutting the presumption of negligence by explaining the disappearance through theft and demonstrating that the boat was properly secured in a guarded, well-lit area. The question of whether the City exercised sufficient care to negate gross negligence was a fact question for the jury, not subject to summary judgment.
[1] A gratuitous bailee is not liable for the loss of bailed property unless the bailee breached the duty of care by committing gross negligence.
[2] In a bailment for mutual benefit, a bailee's failure to return bailed property raises a presumption of negligence, shifting the burden to the bailee to demonstrate the re…
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Join FLexlaw to unlock all legal intelligence“A bailee is not an insurer of property entrusted to its keeping and is not liable for the loss of the bailed property except where there is a breach of duty of a requisite degree of care.”
Establishes the foundational principle that bailees are not absolute insurers but are liable only for breach of required duty of care.
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Join FLexlaw to unlock all legal intelligencePolice officer Bryant towed Thomas's homemade boat to Clearwater Marina where it was impounded during a fee dispute. The marina was guarded by city pe…
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SCHOONOVER, Judge.
Appellants, City of Clearwater (City) and its agents, Jack Bryant and Bill Burchfield, have filed this interlocutory appeal from an order granting appellee, Eugene B. Thomas, a partial summary judgment. We reverse.
Appellant Bryant, a Clearwater police officer, towed appellee’s homemade boat from its mooring place to the Clearwater Marina where it was impounded. When appellee discovered that his boat was missing, he went to the marina and demanded its return. While the parties were disputing over the amount of impoundment and storage fees claimed by the City, the boat disappeared. The record indicates that the marina was guarded by city personnel between the hours of 6:00 a.m. and 9:00 p.m. and by private security personnel between 9:00 p.m. and 5:30 a.m. The boat was stolen between 5:30 a.m. and 6:00 a.m. on March 13, 1980.
After the boat’s disappearance, appellee filed a two-count complaint in the trial court. The first count-sought damages for wrongful taking without due process of law, and the second count sought damages for negligence.
The trial court granted a partial summary judgment on appellee’s negligence count. The court found that the City was a gratuitous bailee of the boat and held that the City and its agents were negligent in failing to protect and return appellee’s boat. This appeal timely followed.
A bailee is not an insurer of property entrusted to its keeping and is not liable for the loss of the bailed property except where there is a breach of duty of a requisite degree of care. Fruehauf Corp. v. Aetna Insurance Co., 336 So. 2d 457 (Fla. 1st DCA 1976). Since appellants were gratuitous bailees, before a summary judgment could be properly entered, appellee had the burden of showing that appellants committed gross negligence as a matter of law. Armored Car Service, Inc. v. First National Bank, 114 So. 2d 431 (Fla. 3d DCA 1959).
We recognize that, in a bailment for mutual benefit, the bailee’s failure to return the bailed property in accordance with the terms of the bailment agreement, raises a presumption of negligence on the part of the bailee, unless he satisfactorily explains such failure. The law under such circumstances imposes on the bailee the burden of showing that he exercised the degree of care required by the nature of the bailment. Clermont Marine Sales, Inc. v. Harmon, 347 So. 2d 839 (Fla. 2d DCA 1977). This presumption of negligence has been extended to apply to gratuitous bailees. Marine Office-Appleton & Cox Corp. v. Aqua Dynamics, Inc., 295 So. 2d 370 (Fla. 3d DCA 1974); see also, 8 Am.Jur.2d Bailments § 326 (1980). Furthermore, a bailor may be entitled to a summary judgment on a prima facie showing of entitlement to the presumption of negligence if the bailee fails to present evidence contradicting that presumption. Ferrell Jewelers v. Southern Mill Creek Products Co., 205 So. 2d 657 (Fla.1967). However, this presumption is a vanishing one. Insurance Company of Pennsylvania v. Estate of Guzman, 421 So. 2d 597 (Fla. 4th DCA 1982). In the case sub judice, we find that appellants did present some evidence rebutting said presumption. First, appellants explained the disappearance of the boat by presenting evidence of theft. Next, appellants established that the boat was properly tied to a slip in a well lighted and guarded area. Therefore, some degree of care was exercised by appellants. The question remaining as to whether it was due care sufficient to negate gross negligence was a question for the trier of fact, and accordingly, summary judgment should have been denied. Clermont Marine Sales, Inc. We accordingly reverse and remand for proceedings consistent herewith.
GRIMES, A.C.J., and SCHEB, J., concur.
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AETNA Cas. & Sur. Co. v. Pappagallo Rest., Inc., 547 So. 2d 243 (Fla. 3d DCA 1989)…lying facts are probative of the inferred fact. Whether an inference is drawn by the trier of fact is within its discretion. C. Ehrhardt, supra. The presumption of the bailee’s negligence is a “vanishing” presumption. City of Clearwater v. Thomas, 446 So. 2d 1160 (Fla. 2d DCA 1984); Insurance Co. of State of Pa. v. Estate of Guzman, 421 So. 2d 597 (Fla. 4th DCA 1982). Therefore, although Pappagallo elicited testimony from Aetna’s witnesses that a theft had occurred, whether the circumstances surrounding that…
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Hussmann Corp. v. UPS Truck Leasing, Inc., 549 So. 2d 215 (Fla. 5th DCA 1989)…2d 526 (Fla. 1st DCA 1981). . Fla.Jur.2d Bailments § 10 (1978); Peacock Motor Co. of Marianna v. Eubanks, 145 So. 2d 498 (Fla. 1st DCA 1962); Fruehauf Corporation v. Aetna Ins. Co., 336 So. 2d 457 (Fla. 1st DCA 1976); City of Clearwater v. Thomas, 446 So. 2d 1160 (Fla. 2d DCA 1984). . See Biltmore Systems, Inc. v. Mai Kai, Inc., 413 So. 2d 458 (Fla. 4th DCA 1982); National Merchandise Co., Inc. v. United Service Auto Assoc., 400 So. 2d 526 (Fla. 1st DCA 1981). . 10A Couch on Insurance § 42.315 (1982); 4 Ap…
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Value Rent-A-Car, Inc. v. Collection Chevrolet, Inc., 570 So. 2d 1376 (Fla. 3d DCA 1990)…is, its extensive security measures, and the only logical inference from the evidence presented was that the car had been stolen. See Aetna Casualty and Surety Company v. Pappagallo Restaurant, Inc., 547 So. 2d at 245; City of Clearwater v. Thomas, 446 So. 2d 1160 (Fla. 2d DCA 1984); Clermont Marine Sales, Inc. v. Harmon, 347 So. 2d at 841. A ruling that the presumption continues even though the bailee has presented evidence of its due care, would effectively result in the bailee becoming the insurer of the…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Armored CAR Serv., Inc. v. First Nat'l Bank OF Miami, 114 So. 2d 431 (Fla. 3d DCA 1959)
- Clermont Marine Sales, Inc. v. Binion Gaines Harmon, 347 So. 2d 839 (Fla. 2d DCA 1977)
- The Ins. Co. OF the State OF Pa. v. The Est. OF Frank Guzman, 421 So. 2d 597 (Fla. 4th DCA 1982)
- Marine Office-Appleton & COX Corp. v. Aqua Dynamics, Inc., 295 So. 2d 370 (Fla. 3d DCA 1974)
- Fruehauf Corp. v. AETNA Ins. Co., 336 So. 2d 457 (Fla. 1st DCA 1976)
- Liberty Assocs., Inc. v. Fishman, 205 So. 2d 657 (Fla. 1968)