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Hello Everyone,
Thanks in advanced for your suggestions. This is in
Pennsylvania. On Sunday my girlfriend and I were at a large department
store shopping and I lent her my cell phone so that she could call
another store to see if they were open. When done with her call she
left my cell phone on her bag. After she was done looking at shoes she
picked up her bag and my cell phone fell on the floor (we are
assuming). In any event it wasn't until around 9:00 pm that we
discovered that my cell phone was missing. We called the phone and got
my voicemail with my voice. We then called back 30 minutes later and
there was a man laughing on the voicemail message. I immediately
called the cell phone company and had the phone disconnected. Today my
girlfriend called the department store and asked if they found the
phone. They did indeed find my phone. The woman working there on
Sunday found it and placed it on top of the register, however, she did
nothing more with it and the phone disappeared. We surmised that the
cleaning crew stole it when the store closed. They said they checked
the security tapes and saw nothing and that the trash was already
tossed. I know the phone was stolen though because of the laughing on
the phone. My guess is they just told my girlfriend that to get her
off the phone. As far as they were concerned it was a done matter. I
was on a business trip with my lawyer today and I told him the story.
He told me that since they found it and had it in their possession an
implied contract for bailment was established and that they should
have reasonably protected my property while in their possession until
I could pick it up (i.e. locking it up or giving it to security). He
said that they were responsible and should pay for the phone since
through their negligence it was stolen. I agree. I just wanted to get
others input into the task at hand. The cell phone will cost about
$400.00 to replace so it's not like I am out a free phone. I plan on
calling them and seeing if they will pay. If they won't pay I will
send a letter and if still nothing I will then file an arbitration
case against them (to bypass the local magistrate case). Any other
thoughts? Who should I list? I'm thinking the manager, the store clerk
and the store.
Thanks,
Sam
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You already already received advice from a lawyer. Have your lawyer write a
letter to the store.
I was on a business trip with my lawyer today and I told him the story.
He told me that since they found it and had it in their possession an
implied contract for bailment was established and that they should
have reasonably protected my property while in their possession until
I could pick it up (i.e. locking it up or giving it to security). He
said that they were responsible and should pay for the phone since
through their negligence it was stolen.
Thanks in advanced for your suggestions. This is in
Pennsylvania. On Sunday my girlfriend and I were at a large department
store shopping and I lent her my cell phone so that she could call
another store to see if they were open. When done with her call she
left my cell phone on her bag. After she was done looking at shoes she
picked up her bag and my cell phone fell on the floor (we are
assuming). In any event it wasn't until around 9:00 pm that we
discovered that my cell phone was missing. We called the phone and got
my voicemail with my voice. We then called back 30 minutes later and
there was a man laughing on the voicemail message. I immediately
called the cell phone company and had the phone disconnected. Today my
girlfriend called the department store and asked if they found the
phone. They did indeed find my phone. The woman working there on
Sunday found it and placed it on top of the register, however, she did
nothing more with it and the phone disappeared. We surmised that the
cleaning crew stole it when the store closed. They said they checked
the security tapes and saw nothing and that the trash was already
tossed. I know the phone was stolen though because of the laughing on
the phone. My guess is they just told my girlfriend that to get her
off the phone. As far as they were concerned it was a done matter. I
was on a business trip with my lawyer today and I told him the story.
He told me that since they found it and had it in their possession an
implied contract for bailment was established and that they should
have reasonably protected my property while in their possession until
I could pick it up (i.e. locking it up or giving it to security). He
said that they were responsible and should pay for the phone since
through their negligence it was stolen. I agree. I just wanted to get
others input into the task at hand. The cell phone will cost about
$400.00 to replace so it's not like I am out a free phone. I plan on
calling them and seeing if they will pay. If they won't pay I will
send a letter and if still nothing I will then file an arbitration
case against them (to bypass the local magistrate case). Any other
thoughts? Who should I list? I'm thinking the manager, the store clerk
and the store.
Thanks,
Sam
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Sam,
I'm hoping that someone can answer this question that is related to your
case. Can you sue the store? I think that you can sue your friend and she
can sue the store. I believe that your friend lost the phone and the store
failed to safeguard it for her but the store had no obligations to you.
Still. a letter seeking compensation might work but I'd be surprised if they
offer the full price of a new phone.
Dave M.
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Your complaint is against the store only, not the employees. You
could sue the girlfriend, but it's not necessary. I don't know PA
law, but I doubt if you're right about the ability to take the case to
arbitration. A letter from a lawyer would be a good start.
McGyver
Hello Everyone,
Thanks in advanced for your suggestions. This is in
Pennsylvania. On Sunday my girlfriend and I were at a large
department
store shopping and I lent her my cell phone so that she could call
another store to see if they were open. When done with her call she
left my cell phone on her bag. After she was done looking at shoes
she
picked up her bag and my cell phone fell on the floor (we are
assuming). In any event it wasn't until around 9:00 pm that we
discovered that my cell phone was missing. We called the phone and
got
my voicemail with my voice. We then called back 30 minutes later and
there was a man laughing on the voicemail message. I immediately
called the cell phone company and had the phone disconnected. Today
my
girlfriend called the department store and asked if they found the
phone. They did indeed find my phone. The woman working there on
Sunday found it and placed it on top of the register, however, she
did
nothing more with it and the phone disappeared. We surmised that the
cleaning crew stole it when the store closed. They said they checked
the security tapes and saw nothing and that the trash was already
tossed. I know the phone was stolen though because of the laughing
on
the phone. My guess is they just told my girlfriend that to get her
off the phone. As far as they were concerned it was a done matter. I
was on a business trip with my lawyer today and I told him the
story.
He told me that since they found it and had it in their possession
an
implied contract for bailment was established and that they should
have reasonably protected my property while in their possession
until
I could pick it up (i.e. locking it up or giving it to security). He
said that they were responsible and should pay for the phone since
through their negligence it was stolen. I agree. I just wanted to
get
others input into the task at hand. The cell phone will cost about
$400.00 to replace so it's not like I am out a free phone. I plan on
calling them and seeing if they will pay. If they won't pay I will
send a letter and if still nothing I will then file an arbitration
case against them (to bypass the local magistrate case). Any other
thoughts? Who should I list? I'm thinking the manager, the store
clerk
and the store.
Thanks,
Sam
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Am I the only person here that thinks that this is a bad idea? I never
dreamed that maintaining a "lost and found box" could create a legal
liability. If a suit such as one described in this post was successful, then
if I were a small business owner I would instruct my employees to toss any
items found in the store into the trash and deny having ever seen them. Why
make any effort to return someone's lost cell phone (or purse, or whatever)
if you're risking a lawsuit in the process?
To the OP: Face it, your gfriend lost your cell phone. Blame yourself, or
her, but don't try to make the store liable for your (or her) misfortune.
--
John Goulden
Thanks in advanced for your suggestions. This is in
Pennsylvania. On Sunday my girlfriend and I were at a large department
store shopping and I lent her my cell phone so that she could call
another store to see if they were open. When done with her call she
left my cell phone on her bag. After she was done looking at shoes she
picked up her bag and my cell phone fell on the floor (we are
assuming). In any event it wasn't until around 9:00 pm that we
discovered that my cell phone was missing. We called the phone and got
my voicemail with my voice. We then called back 30 minutes later and
there was a man laughing on the voicemail message. I immediately
called the cell phone company and had the phone disconnected. Today my
girlfriend called the department store and asked if they found the
phone. They did indeed find my phone. The woman working there on
Sunday found it and placed it on top of the register, however, she did
nothing more with it and the phone disappeared. We surmised that the
cleaning crew stole it when the store closed. They said they checked
the security tapes and saw nothing and that the trash was already
tossed. I know the phone was stolen though because of the laughing on
the phone. My guess is they just told my girlfriend that to get her
off the phone. As far as they were concerned it was a done matter. I
was on a business trip with my lawyer today and I told him the story.
He told me that since they found it and had it in their possession an
implied contract for bailment was established and that they should
have reasonably protected my property while in their possession until
I could pick it up (i.e. locking it up or giving it to security). He
said that they were responsible and should pay for the phone since
through their negligence it was stolen. I agree. I just wanted to get
others input into the task at hand. The cell phone will cost about
$400.00 to replace so it's not like I am out a free phone. I plan on
calling them and seeing if they will pay. If they won't pay I will
send a letter and if still nothing I will then file an arbitration
case against them (to bypass the local magistrate case). Any other
thoughts? Who should I list? I'm thinking the manager, the store clerk
and the store.
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Am I the only person here that thinks that this is a bad idea? I
never
dreamed that maintaining a "lost and found box" could create a legal
liability. If a suit such as one described in this post was
successful, then
if I were a small business owner I would instruct my employees to
toss any
items found in the store into the trash and deny having ever seen
them. Why
make any effort to return someone's lost cell phone (or purse, or
whatever)
if you're risking a lawsuit in the process?
Bailment law is not new. It's ancient. If you obtain possession of
someone's property all you have to do is act reasonably in protecting
it. Stick it in a drawer labeled Lost and Found. What's so hard?
You wouldn't advise your employees to throw it away and lie to the
customers. The employees would snitch and you would be liable in a
lawsuit for conversion. That's the civil equivalent of theft. And if
it's a purse containing a phone, money, jewelry, credit cards,
checkbook and an address book, which you threw in the trash, there
would be punitive damages added, and well deserved. If you are daft
enough to stick it on top of a register with a label saying "Steal
Me", you are liable as a bailee. I'm surprised that you're surprised.
McGyver
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According to the OP the phone was on a register in a locked store and
(supposedly) stolen by the cleaning crew. How is that different from a "lost
and found" drawer or box, which is presumably also vulnerable to internal
pilfering? How is one "acting reasonably to protect the property" and the
other not?
--
John Goulden
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Re. the OP who said he lent his cell phone to a friend while the two
were shopping, that he chose after she completed her call not to ask
her to return his phone to him and that she put it in her hand-bag
instead, that he and she did not realize after they left the store
that she had probably allowed the phone to fall out of her bag when
she put her bag on the store's floor while trying on shoes, that they
confirmed by phone the next day that a store employee had found it and
said she put it next to her cash register (presumably, in the belief
that the phone's owner would have been sufficently self-dilligent to
realize it was missing and to return to retrieve it?) but that she
could not find the phone by the time the OP's friend called, and that
the OP "speculates" that a store employee may have taken and retained
it and says that it would cost about $400 to replace and that he is
thinking of suing the store and its shoe dept. employee who had found
but later could not locate the phone, "McGyver" <Greyprof@msn.com>
wrote:
"John D. Goulden" <jgoulden_news@goulden.org> wrote:
Bailment law is not new. It's ancient. If you obtain possession
of someone's property all you have to do is act reasonably in
protecting it. Stick it in a drawer labeled Lost and Found.
What's so hard? You wouldn't advise your employees to throw
it away and lie to the customers. The employees would snitch
and you would be liable in a lawsuit for conversion. That's the
civil equivalent of theft. And if it's a purse containing a phone,
money, jewelry, credit cards, checkbook and an address book,
which you threw in the trash, there would be punitive damages
added, and well deserved. If you are daft enough to stick it on
top of a register with a label saying "Steal Me", you are liable
as a bailee. I'm surprised that you're surprised.
Except perhaps for the "punitive damages" reference (though itself too
vague and hypothetical to enable meaningful analysis), the "McGyver"
summary is as usual a lucid and a basically commonsensical and also
mor more or less law-accurate one -- except, however, that, in at
least these four respects, it does not provide anything close to a
what-to-do? road map for someone in the OP's circumstances:
- While "McGyver" is correct (as a largely definitional matter)
that, in general, undertaking to hold a widget for its eventual return
to the wiget's owner creates a "bailment" and that one can be "liable
as a bailee" if the widget in question is not returned, saying merely
this begs the question of whether there is an explicit agreement
between the "bailor" and "bailee" about what would be the standard to
trigger such liability (for the reason noted below, one can't tell
just from the OP's posting whether there arguably was/wasn't such an
agreement) or, absent an explicit "bailment" agreement, what the
nature of the bailment in question is. As "McGyver" knows but forgot
to mention in this connection, at common law, which in this respect
varies in some respects considerably from one jurisidiction to
another, there are different sorts of "bailment" (e.g., besides
explictly agreed ones, those which are "gratuitous" and others for
mutual fee or other dollar measurable benefit, etc.), each of which is
said to entail a different degree of care and, hence, require
differing degrees of proof of conduct that will/won't result in
"liability as a bailee" and also that, in numerous U.S. states, common
law "bailment" principles have also been modified in one way or
another by statute (including in his state) in ways which also in
contested litigations entail different requirements of proof of what
will/won't be deemed "reasonable" in/for particular
relationships/circumstances
- Not merely has the OP not answered the "where?" question, so
that one cannot reliably tell from what he said whether there are (or
aren't) statutory limitations on his would-be lawsuit, but he also has
not said in his posting/query whether (as, however, is not uncommon)
the large retail store to which he refers had posted notices to the
effect that, as a condition of their entering and being permitted to
remain in that store, customers/prospective-customers will be deemed
to have agreed that the retailer and its employees and agents shall
not be liable for lost or misplaced personal property, e.g., absent
proof of some degree of deliberate misconduct (although, besides not
having said whether any such claim is likely to be invoked by his
would-be defendants, the OP does merely "speculate" that his phone's
ultimate loss is attributable to a store employee's theft rather,
than, f'r'instance, a customer having taken it form the store counter
after the store employee found it).
- In the state in which "McGyver" practices law, apart from
whether a retailer has posted such a notice and, if so, what it says,
the finder of a lost widget who choses to take it into his posssession
(impliedly for the benefit of its owner) is presumptively deemed to be
required to treat that widget with "ordinary care" (as "McGyver"
impliedly notes correctly), yet it is not obvious that (even if the
store employee who found and put the phone next to her cash register
then forgot about it) the store and its employee were not reasonable
in this respect in the circumstances (since, f'r'instance, and as
indicated above, one might question whether phone's owner or person to
whom he gave that phone, if he or she had been themselves reasonable,
ought have discovered that the phone was missing sooner than they did
and ought have inquired sooner than they did).
- Though concededly he does not address this issue explicitly,
the "McGyver" "liable as a bailee" formulation (standing alone) does
not address whether the OP is correct (or not) to assume that the OP's
assignment of value ($400) would probably be the acceptable one.
None of this is to say that the OP will not prevail if he were to sue
(and it is to agree with the earlier "McGyver" comment that, if he
does opt to sue, the OP has not yet given any reason to sue anyone
other than just the store's owner) or that the store might not decide
in its own self-defined self-interest to offer a resonable
compromise/settlement.
But it is to suggest that the OP's posting/query, like most others
posted to internet/Usenet newsgropups that purport to ask real-life
law-related questions, is not sufficiently factually detailed to
enable reliable analysis if he were to sue and if that lawsuit were
then defended effectively.
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"McGyver" <Greyprof@msn.com> wrote in message news:<2u7u5jF281dfnU1@uni-berlin.de>...
never
successful, then
toss any
them. Why
whatever)
Bailment law is not new. It's ancient. If you obtain possession of
someone's property all you have to do is act reasonably in protecting
it. Stick it in a drawer labeled Lost and Found. What's so hard?
You wouldn't advise your employees to throw it away and lie to the
customers. The employees would snitch and you would be liable in a
lawsuit for conversion. That's the civil equivalent of theft. And if
it's a purse containing a phone, money, jewelry, credit cards,
checkbook and an address book, which you threw in the trash, there
would be punitive damages added, and well deserved. If you are daft
enough to stick it on top of a register with a label saying "Steal
Me", you are liable as a bailee. I'm surprised that you're surprised.
McGyver
For an illustration of just how ancient bailment law is, see for
example Broyde and Hecht, "The Return of Lost Property According to
Jewish & Common Law: A Comparison", online at
http://www.jlaw.com/Articles/avedah1.html
It has considerable discussion of the difference between a gratuitous
bailee and a bailee for hire when lost or mislaid property is involved
and the degree of care expected of such a bailee.
It also covers New York statutory law on such property, particularly
the interesting difference that in New York the finder is not a
bailee.
--
Not a lawyer,
Chris Green
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