Ellish v. Airport Parking Co. of America, Inc. , 345 N.Y.S.2d 650 ( 1973 )

Hopkins, Acting P. J.

About to leave on a flight from John F. Kennedy International Airport on September 1, 1966, the plaintiff parked her automobile in a lot operated by the defendant under an agreement with the Port of New York Authority. "When she returned on September 5, 1966, her automobile had disappeared. Claiming that the defendant was responsible for the loss, she brought this suit. The Civil Court granted judgment in her favor, finding that the transaction was a bailment (Ellish v. Airport Parking Co. of Amer., 66 Misc 2d 470). The Appellate Term reversed and dismissed the complaint, finding that no bailment had been created (Ellish v. Airport Parking Co. of Amer., 69 Misc 2d 837). By permission of the Appellate Term the plaintiff appeals.

We affirm the order of Appellate Term. Under the circumstances of this case we do not find the defendant liable for the plaintiff’s loss.

The case was submitted to the Civil Court under an agreed statement of facts (CPLR 3222). Briefly stated, the partiés stipulated that the plaintiff drove into the parking lot at the airport, receiving from an automatic vending machine a ticket stamped with the date and time of entry. On one. side the ticket was labeled “ License to Park ” and stated that the lot provided self-service parking; it warned the holder that the lot was? not attended and that the car should be locked. On the other, side the ticket contained the words in smaller print: “ This contract licenses the holder to park one automobile in this area at holder’s risk.” Further, it provided that the defendant was not responsible for the theft of the automobile.

Upon the plaintiff’s receipt of the ticket, a gate opened, permitting the entry of the automobile into the lot. The plaintiff drove the automobile into a parking space, locked it and took the keys with her. Under the practice of the defendant, on leaving the lot, the holder of the ticket would drive to the point of exit, present the ticket to a cashier and pay the amount due based on the time elapsed. If the driver did not have a ticket, the cashier would demand proof of ownership of the automobile. The defendant employed personnel to maintain the lot and to check automobiles left overnight in order to make certain that the cashiers collected proper fees. The lot was patrolled by Port of New York Authority police, in the same manner as the airport.

Since the parties stipulated that neither had any knowledge concerning the disappearance of the automobile from the parking lot, the plaintiff could succeed in the action only by the existence of a duty on the part of the defendant to account for the loss of the automobile while standing in the lot. At common law when a chattel was placed by the owner in the possession of another under an agreement by the latter to deliver it on demand, a convenient short hand expression of a duty cast on the bailee was found by establishing a presumption of negligence if the bailee did not come forward with a satisfactory explanation to rebut the presumption (Fidelity & Guar. Ins. Corp. v. Ballon, 280 App. Div. 373; Potomac Ins. Co. v. Donovan, 274 App. Div. 666), though the burden of proof on the whole case remained on the owner (Richardson, Evidence [8th ed.], § 109). The rule thus reflected the judgment that the party last in possession of the chattel was better able to account for its loss.¹

A bailment is, of course, merely a special kind of contract; it describes a result which in many instances does not flow from the conscious promises of the parties made in a bargaining process but from what the law regards as a fair approximation of their expectations (see 9 Williston, Contracts [3d ed.], § 1030, n. 7, p. 879; § 1033, pp. 884-885; § 1065, pp. 1011-1023). Hence, in formulating a rule to determine the extent of the liability of the defendant, we must concern ourselves with the realities of the transaction in which the parties engaged. The nature of the circumstances themselves leads to the determination whether the transaction should be considered a bailment, in which event the defendant is liable to the plaintiff, or whether the transaction should be considered a license to occupy space, in which event the defendant is not liable to the plaintiff.

Parking lots generally accommodate the free use of automobiles in urban areas. Automobiles are so much a part of urban life that it is necessary for both municipalities and private operators to make space available for parking. The parking lots scarcely resemble the traditional warehouses of the professional bailee with their stress on security and safekeeping. Bather, they are designed to meet the need of providing temporary space in crowded urban centers for a highly mobile means of transportation. In the case before us, the parking lot at the airport was designed to facilitate the passage of patrons of airlines by private automobiles to the point of their departure and arrival. As the use of air transportation is a major interest in our social and economic life, it is important that a fair rule, easy to apply, should govern the relationship of the parties to the transaction.

Against this general background we think these considerations are paramount:

1. The service provided by the defendant to the plaintiff was clearly a space for her automobile to stand while she was away on her trip. That space was located in a lot where many other automobiles were similarly standing and to which the operators of the automobiles and others were given access. The plaintiff was not treated differently from the other automobile operators; nor was she led to believe that the lot would not be open to others.

2. The service provided by the defendant was impersonal. The plaintiff was aware that the defendant had no employees either to deliver the ticket for the automobile or to park the automobile. She accepted the ticket from an automatic dispensing device and she parked the car herself, choosing her own space, not at the direction of the defendant.

3. The plaintiff retained as much control as possible over the automobile. She locked the car and kept the keys. She did not expect or desire the defendant to move the automobile in her absence.

4. The plaintiff followed the directions contained in the ticket she received. In her favor, we think that the plaintiff should not be closely bound by the terms of the ticket, for plainly it was a contract of adhesion. The plaintiff was hardly in a position to bargain over the conditions of the ticket and, indeed, the condition of nonliability for theft sought to be imposed by the defendant is unenforceable under the public policy of our statute (General Obligations Law, § 5-325). Nevertheless, it is still the fact that the plaintiff heeded the warning of the ticket to lock her automobile.

5. We can draw the reasonable inference from the agreed statement of facts (CPLR 3222, subd. [b], par. 4) that, since the plaintiff followed the directions in the ticket, she read the other warnings which it contained to the effect that the lot was not attended and that the parking of her car was at her own risk. Thus, any expectation that the defendant would take special precautions to protect her car while she was away could not reasonably have been in her mind.

6. The actual operation of an airport parking lot must have been apparent to her. Thousands of automobiles were constantly entering and leaving the airport, many of which were using the parking lot that her car occupied. The plaintiff, seeing the confusion and bustle, should have realized the gigantic task which an individual check-out of each automobile would require — a task which she was aware the defendant did not undertake, since the ticket which she received did not identify her automobile.

In the absence of any proof of neglect by the defendant, then, we do not think that the defendant should be held responsible for the loss of the automobile. Other courts considering parking lots at airports have concluded as we do (Wall v. Airport Parking Co. of Chicago, 41 Ill. 2d 506; St. Paul Fire & Mar. Ins. Co. v. Zurich Ins. Co., 250 So. 2d 451 [La. App.]; Equity Mut. Ins. Co. v. Affiliated Parking, 448 S. W. 2d 909 [Mo. App.]).²

We do not find Dunham v. City of New York (264 App. Div. 732), in which we allowed recovery for the loss of an automobile parked in a lot at the World’s Fair held in 1939, a precedent requiring us to hold for the plaintiff here. In Dunham, though the motorist locked his car after parking it and retained the keys, an attendant gave a ticket to the motorist before parking and directed him to the space to be occupied, thereby giving the appearance of the acceptance of custody for the car. Here, instead, the defendant by its procedures of impersonal parking disclaimed any appearance of custody.

We are of the opinion that liability should not be determined by ancient labels and characteristics not connected with present-day practices. It is one thing for the owner of a livery stable to have to explain the disappearance of a horse from its stall to the owner, but it is not at all the same for the operator of a parking lot at a busy airport to have to explain the disappearance from the lot of one of the thousands of cars parked there daily. Unless proof of negligence is present on the part of the operator of the lot, the risk of loss must be assumed by the owner of the automobile.

We therefore should affirm the order of the Appellate Term, without costs.

1 . The presumption of negligence is similar to the doctrine of res ipso loquitur, which an authority has said has been a strong factor in achieving verdicts in favor of plaintiffs (2 Harper & James, Law of Torts, § 19.11, p. 1099).

2 . “Self-park” lots arid garages have been said not to create a bailorbailee relation (see Weinberg v. Wayco Petroleum Co., 402 S. W. 2d 597 [Mo. App.]). In many eases the retention of the keys by the motorist is considered a decisive factor preventing liability for loss (see 9 Williston, Contracts [3d ed.], § 1065, pp. 1011-1023; 8 C. J. S., Bailments, § 1, subd, b, par. [2]; Ann. 7 ALR 3d 927).