Fifield v. Autobahn Body Works, Inc., No. 107-2-15 Cncv (Toor, J., May 15, 2015).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy
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                                          VERMONT SUPERIOR COURT
                                             CHITTENDEN UNIT
                                              CIVIL DIVISION

                                                          │
CURTIS FIFIELD                                            │
 Plaintiff                                                │
                                                          │
 v.                                                       │             Docket No. 107-2-15 Cncv
                                                          │
                                                          │
AUTOBAHN BODY WORKS, INC., et al.,                        │
 Defendants                                               │
                                                          │


                       RULING ON MOTION FOR WRIT OF ATTACHMENT

         Plaintiff alleges that, when he was incarcerated a number of months ago, he left a large

and valuable box of his mechanic’s tools at the shop where he was working. He sues the shop

and its owners for negligence for allowing the toolbox to disappear while he was incarcerated.

He seeks a writ of attachment for the value of the toolbox and its contents. A hearing was held on

the motion on March 18 and April 21. Post-hearing memos were complete May 8. Harley

Brown, Esq. represents Plaintiff; Richard Goldsborough, Esq. represents Defendants.

                                                 Findings of Fact

         For purposes of the motion for attachment, the court finds the following facts to be

established by a preponderance of the evidence. Autobahn is owned by Patrick and Terese Ayer.

The real estate on which the shop sits is owned by them personally, not by Autobahn. Fifield

worked as a mechanic at Autobahn on and off over the years. He was not an employee, but an

independent contractor or subcontractor. He had his own large toolbox which he brought to

Autobahn, which apparently is common practice among mechanics. It was about five feet long,

two feet deep, and over three feet high. It was heavy, although it had wheels. Fifield estimates
that the box was worth $5,000 empty and had about $18,000 worth of tools inside, for a total

value of $23,000.

       In January of 2014, Fifield was arrested and taken to jail. He remained incarcerated until

September 29, 2014. When Fifield was arrested, he apparently missed a few days of work before

calling to explain why. During that time, Patrick Ayer at some point called Fifield’s number and

left a phone message saying that Fifield shouldn’t bother retuning to work since he had failed to

show up, and should come get his tools. However, there is no evidence that Fifield ever got the

message, as he was already incarcerated.

       Fifield alleges that he called the shop soon after his arrest and asked the assistant

manager whether he could leave the toolbox there while he was in jail, and was told that was

fine. The assistant manager does not recall such a call. Fifield did not speak to the owners of

Autobahn, or send anyone to collect the toolbox, or send anything in writing. He showed up in

September to get the toolbox and found it missing. He had the keys, and it had been locked when

he left it, although a second key was hidden somewhere on the toolbox.

       The shop has an alarm system and is locked when it is not open. On an earlier occasion,

Fifield had been “laid off” and had left the toolbox safely at the shop for four months. The shop

had approximately eight people working in it, and several mechanics had their own large

toolboxes in the shop. No one has offered any explanation for where the toolbox went.

                                      Conclusions of Law

       The legal issue here is what duty Autobahn had to Fifield. The relevant legal doctrine is

that of bailment, the law that applies when one party holds property for another. “The standard of

care a bailee owes a bailor is measured by the amount of benefit each party derives from the




                                                2
bailment.” Kottlowski v. Bridgestone/Firestone, Inc., 670 N.E. 2d 78, 82 (Ind. App. 1996)

(citation omitted).

        The parties disagree over the correct characterization of Autobahn. Fifield argues that the

bailment was for the benefit of both parties. If so, then ordinary negligence might be sufficient to

establish liability. Sargent v. Slack, 47 Vt. 674, 676 (1875) (If for mutual benefit, bailor’s duty is

“the exercise of ordinary care, or that degree of care which a man of ordinary prudence would

use in the performance of the same duty towards his own property.”); LaPlace v. Briere, 962 A.

2d 1139, 1149 (N.J. Super. Ct. App. Div. 2009)(“In a bailment for mutual benefit, a bailee has a

duty to exercise reasonable care for the safekeeping of the subject of the bailment and will be

liable for any loss caused by its failure to do so.”). For example, evidence of inadequate alarms

or locks to prevent burglary might be sufficient. Johnson & Towers Baltimore, Inc. v.

Babbington, 264 Md. 724, 727-28 (Md. 1972)(where employee’s tools were stolen from

workplace, evidence supported finding that employer’s security was inadequate).

        Autobahn argues that it was a “gratuitous bailee,” sometimes called a “naked bailee.” If

so, then “[t]he measure of responsibility . . . is generally stated to be that he is answerable only

for fraud or gross neglect, and not for such ordinary inattention as may be compatible with good

faith.” Jobidon v. Lussier, 124 Vt. 242, 247 (1964); see also 19 Williston on Contracts § 53:8

(4th ed.) (“A bailee who undertakes the care of goods without reward is liable for damage caused

only by his or her gross negligence.”). In other words, ordinary negligence would not create

liability.

        The court concludes that on the evidence presented so far, there is nothing to support

plaintiff’s claim that the tools were left in the shop for the benefit of both parties while Fifield

was in jail. He had the key, and the toolbox was locked. There is no evidence that he offered the




                                                  3
use of the tools to others in the shop while he was incarcerated. The only evidence before the

court at this time suggests that the only person benefitting from the storage of the tools at

Autobahn was Fifield. The fact that the tools had been of use to Autobahn previously when they

were actually being used by Fifield to do work is not the point. Compare, Kottlowski, 670 N.E.

2d at 83 (finding that “whenever an employee is required to bring his own tools to a job site and

it is impractical for him to remove those tools at the end of the workday,” that creates a bailment

for mutual benefit). The issue is whether they were of benefit to Autobahn while stored there in

Fifield’s absence. Thus, on the evidence to date, this was a gratuitous bailment, and unless

further evidence is presented at trial to change that, liability can be established only if gross

negligence or fraud is shown.

       However, there is a presumption of negligence that applies when property disappears

while in the bailee’s hands. LaPlace, 962 A. 2d at 1149; Griffin v. Nationwide Moving and

Storage Co., Inc., 446 A.2d 799, 802 (Conn. 1982). “[T]he law has come to be well recognized

that in those instances of bailment, where the bailee has the sole, actual and exclusive physical

possession of the goods, the bailee is presumed to be negligent if, upon the disappearance of the

goods, he cannot explain their loss.” Arkwright Mills v. Clearwater Mfg. Co., 61 S.E.2d 165,

167 (S.C. 1950). This applies even to gratuitous bailments:

               A bailee who has sole, actual, and exclusive physical possession of
               the bailed goods is presumed to be negligent if he or she cannot
               explain the loss or disappearance of the goods, or fails to redeliver
               or return them upon proper demand, or returns the goods in a
               damaged condition where the goods were not so damaged when
               received, and the law imposes on the bailee the burden of showing
               that he or she exercised the degree of care required by the nature of
               the bailment. This rule applies not only to bailments for mutual
               benefit, but also to gratuitous bailments.

8A Am. Jur. 2d Bailments § 231 (Westlaw updated May 2015); see also, National Broadcasting

Co. v. Rose, 215 A.2d 123, 126 (Conn. 1965). The court finds that while Fifield was in jail,


                                                4
Autobahn had exclusive possession of the toolbox. Thus, the presumption applies here. “The

bailee may meet the duty of going forward with evidence in a bailment action either by showing

that the property was destroyed, lost or damaged, by some special cause consistent with due care

by him or her, which ought to constitute an excuse, or, more generally, that he or she was not

culpably negligent, or exercised due care in all that he or she did with respect to the bailed

property, as required by the nature of the bailment.” Id. § 242; see also, e.g., Dole Fresh Fruit

Co. v. Delaware Cold Storage, Inc., 961 F. Supp. 676, 680-81 (D. Del. 1997) (“[B]ailee's burden

of ‘accounting for the loss’ encompasses a showing [that] the bailee was not negligent and/or his

actions were not the cause of the loss.”); Price v. Brown,          680 A.2d 1149, 1151-52 (Pa.

1996.)(explaining shifting burdens).

       Based upon the record so far, the court concludes that Fifield has established a prima

facie case, and Autobahn has not rebutted it. There is no evidence as to what actually happened

to the toolbox. It is unclear whether a coworker took it, or sold it, or it was stolen, or some other

explanation exists. The evidence does not establish where or how it went missing. As for the

duty of care, the only evidence in the record is that the shop was locked on nights and weekends.

If so, how could the box have been stolen, except by a coworker? Were there adequate

safeguards against employees or contractors taking property out of the shop? Who had keys to

the shop? Given that the burden of rebutting the presumption is on Autobahn, the court

concludes that it has not yet done so. See, e.g., Inter-Ocean (Free Zone), Inc. v. Manaure Lines,

Inc., 615 F. Supp. 710, 716 (D.C. Fla. 1985) (“It is not enough to show that the bailee used

reasonable care if ‘mysterious disappearance’ is the only explanation given . . . If the bailee fails

to provide a sufficient explanation supported by evidence, then he will be liable for breach of

bailment and negligence.”).




                                                 5
       Defendants raise two other issues, however. One is that there is no evidence beyond

Fifield’s testimony with regard to the monetary value of the toolbox and its contents. There is no

rule that additional evidence is required. An owner may testify to the value of his property.

Fifield appeared credible on this point, and no contrary evidence was presented. The court finds

his testimony on this point sufficient to establish that it is reasonably likely he can show the

requested damages.

       Lastly, Defendants argue that the only proper defendant here is the corporation, not the

individual defendants. Plaintiff offers no argument as to how the individual defendants would be

liable here, as the bailment was not to them personally. Thus, the court agrees that no attachment

can be issued against them.

                                               Order

       The motion for a writ of attachment (in the amount of $23,000) is granted as to Autobahn

only, and denied as to the individual defendants. Given the narrow issues in this case, the court

orders that all discovery shall be completed by September 15, all dispositive motions shall be

filed by October 1, and the case shall be trial-ready by that date if no motions are filed. The court

leaves to the parties the choice of whether to engage in mediation. If more (or less) time is

agreed to by the parties, they may submit an alternate schedule for the court’s approval.

       Dated at Burlington this 15th day of May, 2015.



                                                              _____________________________
                                                              Helen M. Toor
                                                              Superior Court Judge




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