1. What type of bailment was created when Gilchrist took possession of Hadfield’s car? Why is a determination about the type of bailment important?

2. Explain the burden of proof applicable in this case.

3. Explain the statement, “Although contractual in nature, and involving the conveyance of personal property, an action for breach of a duty of care owed by a bailee sounds in tort.”

Mark Hadfield, a medical student in Charleston, South Carolina, went to retrieve his 1988 Lincoln Continental from a parking space on private property near the medical school where his wife had parked the car earlier that day without permission. The property owner called Gilchrist Towing Co. and had the auto removed. When Hadfield discovered that the car had been towed, he telephoned Gilchrist Towing and was told that he would have to wait until the next morning to retrieve the car after paying towing and storage fees. The next morning after paying the charges, he went to the storage lot and found that his car had been extensively vandalized along with a number of other vehicles. The owner of the company, S.A. Gilchrist, refused to pay the estimated cost of repairs, $4,021.43. Hadfield brought suit contending that a constructive bailment for the mutual benefit of Hadfield and Gilchrist had been created, and that Gilchrist breached his duty of care to Hadfield. Gilchrist contended that he towed the vehicle pursuant to Charleston Municipal Ordinances, which are for the sole benefit of the vehicle owners, intended to preserve their property. As such the relationship created was a gratuitous bailment, which limited his duty of care. Gilchrist contended he was not liable for the damages caused by unknown vandals.

JUDICIAL OPINION

ANDERSON, J.… Although contractual in nature, and involving the conveyance of personal property, an action for breach of the duty of care owed by a bailee sounds in tort. See Kurt Philip Autor, Note, Bailment Liability: Toward a Standard of Reasonable Care, 61 S. Car. L. Rev. 2117, 2124 (Sept. 1998).…

The burden of proof in this case rests first upon the bailor, Hadfield, to prove prima facie case. He must show: 1) the goods were delivered to the bailee in good condition; and 2) they were lost or returned in a damaged condition. See Fortner v Carnes 258 S.C. 455, 189 S. E. 2d 24 (1972) (burden is upon bailee to prove due or ordinary care on his part, to jury’s satisfaction, if he is to relieve himself of liability for goods not returned in accordance with bailment contract; whether bailee has exercised due care with regard to stored goods has to be determined with reference to all circumstances of particular case); Shoreland Freezers, Inc. v Textile Ice & Fuel Co. 241 S.C. 537, 129 S.E.2d 424 (1963). When the bailor, Hadfield, has so proven, the burden is then shifted to the bailee, Gilchrist, to show that he has used ordinary care in the good’s storage and safekeeping.… Hadfield testified before the magistrate regarding the “nice” condition of the vehicle prior to being towed, and the damage to his vehicle, and the other vehicles on the lot. In addition, he introduced photographs depicting the damage. Thus, Hadfield made out his prima facie case. The burden then shifted to Gilchrist to show that he used ordinary care in protecting the vehicle while in his care.

Gilchrist impounded the cars in a storage lot surrounded by a chain link fence. There was an individual on the clock at all times. The person on duty spent time in the office and only visited the storage lot to check on it. The vandal cut a hole in the fence and broke into six to eight cars on the night in question. The fact the guard was not on duty at the impound lot and, considering the only other security for the vehicles was the chain link fence, the magistrate and Circuit Court judge could have concluded Gilchrist failed to exercise ordinary care. As explicated above, the decision of whether or not Gilchrist used ordinary care is a question of fact. Based on our standard of review, we must affirm the decision of the Circuit Court on the facts if it is supported ………………..