Mark Hadfield filed this action against Sam Gilchrist, d/b/a Gilchrist’s Service Center, and d/b/a Gilchrist Towing Company (Gilchrist) for damages sustained by Hadfield’s vehicle while impounded on Gilchrist’s lot. * * * 

Facts/Procedural Background 

Gilchrist owns a motor vehicle towing service and maintains a storage facility for the retention of the towed vehicles. Gilchrist operates under a license issued by the City of Charleston.

Hadfield, a medical student at MUSC, went to retrieve his 1988 Lincoln Continental from the parking spot where his wife parked the vehicle. The parking spot, located near MUSC, was on private property owned by Allen Saffer. Hadfield’s wife parked the vehicle on Saffer’s property without Saffer’s permission. The vehicle was not in the parking spot when Hadfield arrived as Saffer had called Gilchrist to have the vehicle removed. 

Gilchrist towed Hadfield’s car to his storage facility. Gilchrist maintained a chain link fence around the storage area, and had an employee on the lot around the clock. The employee’s duties included periodically leaving the office to check on the storage area, which was some distance away from the office. 

Hadfield called to retrieve his vehicle, but was informed he would have to wait until the next morning and pay towing and storage fees. Upon Hadfield’s arrival to pick up his car the following morning, he paid the fees. When he went to the storage area to collect his vehicle, Hadfield discovered the vehicle had been extensively vandalized. The vandals stole the radio/compact disc player, smashed windows, and pulled many electrical wires out of the dashboard. The vehicle depended heavily upon computers and never functioned properly after the incident. The vandals entered the storage area by cutting a hole in the fence. They vandalized between six and eight vehicles on the lot that night.

The magistrate, in summarizing Hadfield’s testimony, concluded Hadfield’s attempts to persuade Gilchrist to pay for the damages were futile. Hadfield secured estimates for the damage to the automobile * * * at $4,021.43. * * * After more than 60 days elapsed, Hadfield sold the vehicle for $1,000.00. 

The magistrate found Gilchrist liable for the damages as a bailee, and entered judgment in favor of Hadfield for $4,035.00. Gilchrist appealed to the Circuit Court, which affirmed the decision of the magistrate. 

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Issues

I Did the Circuit Court err in applying the law of bailments? 

II Did the Circuit Court err in finding Gilchrist was responsible for damages? 

Law/Analysis

Neither the magistrate nor the Circuit Court judge made a finding as to the type of bailment created in this case. The type of bailment created may determine the standard of care the bailee, Gilchrist, must meet. Therefore, we review the law of bailments. 

  Bailments

A bailment is created by the delivery of personal property by one person to another in trust for a specific purpose, pursuant to an express or implied contract to fulfill that trust. [Citations.] 

Bailments are generally classified as being for (1) the sole benefit of the bailor; (2) the sole benefit of the bailee; or (3) the mutual benefit of both. [Citation.] Bailments which benefit only one of the parties, the first and second classifications, are often described as gratuitous. [Citation.] 

A. Gratuitous Bailment

‘‘A gratuitous bailment is, by definition, one in which the transfer of possession or use of the bailed property is without compensation.’’ [Citation.] For instance, a gratuitous bailment arises if the bailment is undertaken as a personal favor or is involuntary. [Citations.]

A ‘‘gratuitous bailee’’ acts without expectation of reward or compensation. [Citation.] To show the bailment was for the sole benefit of the bailor, the bailee must establish that it was not expecting compensation. * * * 

B. Bailment for Mutual Benefit

By contrast, a bailment for the mutual benefit of the parties arises when one party takes the personal property of another into his or her care or custody in exchange for payment or other benefit. [Citations.]

C. Constructive Bailment

Although a bailment is ordinarily created by the agreement of the parties, the agreement of the parties may be implied or constructive, and the bailment may arise by operation of law. [Citation.] Such a constructive bailment arises when one person has lawfully acquired possession of another’s personal property, other than by virtue of a bailment contract, and holds it under such circumstances that the law imposes on the recipient of the property the obligation to keep it safely and redeliver it to the owner. [Citations.] A constructive bailment may occur even in the absence of the voluntary delivery and acceptance of the property which is usually necessary to create a bailment relationship.

Gilchrist argues he towed the vehicle pursuant to the Charleston Municipal Ordinances, and the ordinances are for the sole benefit of the vehicle owners. Accordingly, he contends, the relationship created is a gratuitous bailment. We disagree. * * *

 Clearly, the [applicable Charleston] ordinances provide for the payment to the city or its agent, the towing service, for the costs of towing and storage. Gilchrist charged Hadfield towing and storage fees.

The vehicle owned by Hadfield was plucked by Gilchrist from the private property of Saffer. Gilchrist acted pursuant to and by virtue of the licensing authority under the city ordinance. Quintessentially, the factual scenario encapsulated in this case is a paradigm of a ‘‘constructive bailment.’’ We conclude a constructive bailment, for the mutual benefit of Hadfield and Gilchrist, was created. 

Bailment Action/Nature of Theory 

Although contractual in nature, and involving the conveyance of personal property, an action for breach of the duty of care by a bailor sounds in tort. [Citations.] Concomitantly, after finding a bailment for mutual benefit exists in this case, we must determine whether Hadfield is entitled to damages, relying on the application of tort principles rather than contract principles.

Bailee’s Degree of Care/Burden of Proof 

The degree of care required of a bailee for mutual benefit is defined as ordinary care, or due care, or the degree of care which would be exercised by a person of ordinary care in the protection of his own property. [Citations.] 

In a bailment action alleging a breach of the duty of care, the bailor is entitled to be compensated for all losses that are the natural consequence and proximate result of the bailee’s negligence. [Citation.] * * * The Supreme Court, in Shoreland Freezers, [citation], discussed a bailee’s liability under a bailment for mutual benefit: 

Under the decided cases in this State, liability of a bailee under a bailment for mutual benefit arises upon a showing that (1) the goods were delivered to the bailee in good condition, (2) they were lost or returned in a damaged condition, and (3) the loss or damage to the goods was due to the failure of the bailee to exercise ordinary care in the safekeeping of the property. The burden of proof in such cases, in the first instance, rests upon the bailor to make out a prima facie case. This has been done when the bailor proves that he delivered the goods to the bailee in good condition and their loss or return in a damaged condition. When the bailor has so proven, the burden is then shifted to the bailee to show that he has used ordinary care in the storage and safekeeping of the property. [Citations.] 

[Citation.] 

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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. * * * 

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Accordingly, the order of the Circuit Court is AFFIRMED.