Central Parking System v. Miller , 1979 Ky. LEXIS 282 ( 1979 )

STEPHENSON, Justice.

This case arose out of the thefts of wire wheels from Miller’s car. The car was parked in a large self-service parking garage owned by Central Parking System. The parking garage is a self-service type operation where a ticket machine automatically gives a ticket to a driver before he enters the garage. The driver then parks in a place of his choice and leaves his car, taking his keys with him. The only employ- • ee on duty is the attendant who collects the money from the driver upon exiting. Miller parked his car in movant’s garage following the above procedure on the three occasions when his wheels were stolen. After the thefts, Miller filed suit against Central Parking. The Jefferson Quarterly Court entered a judgment of $838.20 in favor of Miller. The . Jefferson Circuit Court affirmed, basing its decision on the quarterly court’s findings of fact and conclusions of law. The Court of Appeals affirmed. We reverse.

The Court of Appeals held that Central Parking was a bailee, relying on Blackburn v. Depoyster, 209 Ky. 105, 272 S.W. 398 (1925). Blackburn held that the garage keeper was a bailee for hire who was under a legal obligation to exercise such ordinary care as a man of reasonable prudence and discretion would exercise under like circumstances with respect to his own property. The facts in Blackburn were that an agreement existed whereby Blackburn was allowed to park in Depoyster’s garage. On the night of the theft, the owner was not present when Blackburn parked his car in the garage. The court in holding that the garage keeper was a bailee for hire stated that the duty imposed on the garage keeper was similar to that imposed on a liveryman.

The standards that were applicable to a liveryman should not be applicable to a parking garage where hundreds of cars are parked daily. While it may have been that these standards were applicable to a parking garage in 1925, it is not practical to apply them to garages of today. There are more automobiles in existence today, more and larger parking facilities and easier access to these facilities as a result of automatic ticket machines and other technological advances. No longer is entry into a lot or garage and the parking of a car dependent upon the presence of the owner or an attendant or an express agreement between the garage and car owner. For these reasons we hold that Blackburn, supra, is no longer applicable and that the facts in the case at bar do not create a bailment.

Therefore, Central Parking is not liable to Miller in the absence of negligence. This same conclusion, based on similar facts, was reached in Ellish v. Airport Parking Co. of America, Inc., 42 A.D.2d 174, 345 N.Y.S.2d 650, app. dism. 33 N.Y.2d 764, 350 N.Y.S.2d 411, 305 N.E.2d 490 (Ct.App., 1973), aff’d, 34 N.Y.2d 882, 359 N.Y.S.2d 280, 316 N.E.2d 715 (Ct.App., 1974). Although this case involved the theft of an automobile from an airport’s parking lot, the parking procedure was exactly the same as in this case. This court finds the reasoning in Ellish, supra, persuasive:

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.

The effect of this holding is that the owner of the car must offer proof of specific acts of negligence by the operator or his employees if he is to recover for loss or damage. 38 Am.Jur.2d, Garages, etc., § 71. The trial court made no finding that Central Parking was negligent, holding only that there was a bailment created and Miller had met his burden of proof. However, as a result of our holding Miller must prove specific acts of negligence on the part of Central Parking in order to recover for his stolen wheels. In the absence of such evidence, Central Parking is not liable.

In conclusion when a person parks his automobile in a garage by receiving a ticket from an automated machine, choosing his own space and taking his keys with him, the garage is not a bailee and is not liable in the absence of negligence on its part.

The judgment of the circuit court and the opinion of the Court of Appeals are reversed.

All concur except STERNBERG, J., who dissents.