4.41 BAILMENT Civil Model Jury Charge NJ

4.41 BAILMENT Civil Model Jury Charge

4.41 BAILMENTCivil Model Jury Charge

NOTE TO JUDGE

Recovery in bailment depends on proof of failure to exercise the requisite degree of care which proximately results in loss or damage to the bailed articles. The degree of care required depends on the relationship between the parties. In addition to the proposed charges you will probably use other general charges, such as definition of negligence, proximate cause, preponderance of the evidence, etc.

Definition of Bailment:

Under the Uniform Commercial Code bailee is defined as the person who by a warehouse receipt, bill of lading, or other document of title acknowledges possession of goods and contracts to deliver them. N.J.S.A. 12A:7-102(1)(a). Subsection (h) defines warehouseman as a person engaged in the business of storing goods for hire. [As to duty of care of a warehouseman and carrier, see Cases and Commentary under Mutual Bailment, below.]

INTRODUCTORY PARAGRAPH

A contract of bailment exists when a person turns over an article of property for a particular purpose or merely for safekeeping to another person who accepts the property with the understanding that it will be returned or kept until reclaimed or otherwise disposed of in accordance with the understanding of the parties.

Parties to a bailment contract are called the bailor and bailee. The bailor is the party who surrenders the property and the bailee is the party who receives the property. For a bailment contract to exist the bailee must be given physical possession and control over the property. The bailee must know that the property has been delivered to him/her and he/she must have an intention, express or implied from the circumstances, to exercise control over the property.

The contract of bailment may be expressly agreed upon, in writing or verbally, or it may be implied from the circumstances of the transaction and the conduct of the parties.

The standard of care for the safety of the property that must be exercised by the bailee, the person who has received the property, depends upon the purpose of the bailment, namely, whether it is for the benefit of the bailee alone, or the bailor alone, or for their mutual benefit. (For example, if a car is stored in a parking garage where the garageman will receive a fee for parking, this is a bailment for the mutual benefit of the bailor and bailee since it serves the purposes of both. If, however, a neighbor borrows a lawnmower, the neighbor is a bailee for his/her own benefit of using the lawnmower on his/her lawn and the owner of the lawnmower receives no benefit from that bailment. If a person is asked to keep his/her neighbors canary for a few days while his/her neighbor is on vacation, the person who receives the canary is a bailee without any benefit to himself/herself but solely for the benefit of the bailor.)

A. Where Bailment is Not Disputed

In this case the parties agree that plaintiff delivered possession of (specify the article of property) to defendant for (specify the purpose) and defendant agreed to return the property (specify time or conditions). Therefore, in this case there is no dispute as to the existence of the bailment contract. The dispute concerns plaintiffs contention that the defendant, as bailee, did not exercise that degree of care for the safety of the property as was required by law and that as a proximate result of defendants conduct the property was (damaged, destroyed or lost).

B. Where Bailment is Disputed

In this case the plaintiff contends that he/she was a bailor of property and that defendant was the bailee of his/her property. (Specify plaintiffs factual contentions.) Plaintiff contends that defendant, as bailee, failed to exercise that degree of care required by law for the safety of the property. Defendant, however, denies that a bailment contract or relationship ever existed. (Specify defendants factual contentions.)

It is for you as jurors to determine from the evidence in this case whether a contract of bailment, as I have previously defined that term, arose out of the transaction in question. If you find from the circumstances and conduct of the parties that the property came into the possession and control of defendant with his/her knowledge, in accordance with an understanding whereby the defendant is to be considered a bailee and the plaintiff a bailor, in accordance with the definition of bailment previously given, then you must conclude that a bailment relationship or contract did arise in the transaction between the parties. If, however, an element necessary to create a bailment contract or relationship, as previously defined, has not been established in this case by the preponderance of the evidence, you must conclude that a bailment contract or relationship did not exist. (If you conclude that a bailment contract or relationship did not exist, then you must bring in a verdict for defendant of no cause for action and you need not consider the question of defendants negligence or the question of damages.)