Ellish v. Airport Parking Co. of America, Inc.

(dissenting). My learned brother, Mr. Justice Hopkins, has aptly stated the question here to be determined when he says: “ 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.” He concludes that “ the realities of the transaction in which the parties engaged” establish that when the plaintiff placed her automobile in the defendant’s enclosed parking lot (from which she was not free to remove it without paying the accrued parking charges) she merely obtained 11 a license to occupy space ”. I cannot subscribe to that view.

We start with the undisputed fact that the plaintiff was a captive-customer of the defendant. There was no public street on which she could park her ear; nor did she have a choice of parking facilities. If she was to come to the airport by automobile — which she had a right to do and the doing of which was encouraged by the defendant’s operation of a commercial parking lot there — she had no choice of accommodations. She could not pick out a parking lot in which the operator would take her keys and park her car. It was the defendant’s lot or none at all. Under such circumstances and considering the fact that the plaintiff was not free to leave with her automobile until she had first paid the charges due thereon, it seems to me that ‘1 the realities of the transaction in which the parties engaged ” clearly show a sufficient retention of control by the defendant over the plaintiff’s car to make the defendant liable for the loss in the absence of the defendant’s giving any explanation for the loss.

*180Although the majority recognizes that “ the condition of non-liability for theft sought to be imposed by the defendant [by virtue of the terms of the ticket-receipt which the plaintiff received from the automatic machine] is unenforceable under , the public policy of our statute (General Obligations Law, § 5-325),” it nevertheless draws the inferences, improperly I believe, “ that the plaintiff heeded the warning of the ticket to lock her automobile ” and that, since the plaintiff followed that direction on the ticket, she must have “ 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 ” and that therefore “ 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.” But those successive assumptions, heaped upon one another, proceed on the theory that the plaintiff, and others like her, approached this parking lot with tabula rasa — that she knew what to do only from reading the instructions on the ticket. That assumption, in my opinion, lacks validity. Every driver these days is familiar with parking lot procedures and does not have to examine a ticket (with printing usually too small to be readily readable) to know what to do when he enters a self-service parking lot. Every driver knows that airport parking lots are fenced in and attended at all times because he knows that he must pay the full parking fee due when he comes to retrieve his car. The lot operator’s retention of the right to payment when the car owner comes for his car, it seems to me, carries with it a concomitant representation that the car will be there at that time, since, at least to that extent, the parking lot operator has retained control over the car. Such awareness by a patron of his obligation to pay when he returns for his car is inconsistent with any implication of acceptance by him of the risk of an unexplained disappearance of the car from the lot.

Neither do we believe that the plaintiff’s observations of the confusion and bustle which unfortunately characterize the operations of our huge airports at heavy-use periods should have led her to realize that the parking lot operator owed her no duty of seeking to ascertain that the check she had received when entering the parking lot with her ear was the same check presented by the person leaving the lot with her car. Would not the patron have reason to believe, from the fact that the lot was fenced in and its exit gate manned throughout the day and night, that his car was safer there than on the streets or in an unmanned, unpatrolled and unfenced lot and that the lot oper*181ator was accepting supervision and control, though limited in degree, of his car? ,

To buttress its conclusion that the defendant should not “ be ' held responsible for the loss of the automobile ”, the majority says that other courts considering parking lots at airports have' concluded as the majority does (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.]). However, these three cases are not at all persuasive. All three use as their keystone the outworn limitation of the law of bailment. Wall v. Airport Parking Co. of Chicago (supra) follows the reasoning of Greene Steel & Wire Co. v. Meyers Bros. Operations (44 Misc 2d 646 [App. Term, 1st Dept.]) although the Greene case did not deal with the loss of an automobile, but with damage to it.* In the St. Paul case the court based its decision on the ground that in Louisiana the self-service long-term airport parking lot from which the car was stolen was an exception to the general rule that parking lots are treated as compensated depositories against which negligence need not be proved in cases of vehicle loss or theft, because its operation was so “ restricted and structured so as to make it clear that the patron-motorist merely leases parking space rather than making a deposit of his car ” (p. 453). In the Equity Mutual case the rejection of the plaintiff’s claim was based on the erroneous premise that it could recover only if there was “ such delivery to the bailee as would entitle him to exclude the possession of anyone else, even the owner, for the period of the bailment” (P- 914). _

*182Parking lots where the operators retained dominion over any cars parked in the lots until the cars were returned to their owners have traditionally been held to be liable for loss or damage unless the owners rebutted the presumption of negligence yby showing reasonable care. Modern technology has allowed parking lot operators at airports to dispense with attendants at the entrances of the lots who insured that the license numbers and makes of the cars were recorded on the receipts so as to help insure that the holders of the receipts were in fact the owners of the cars when they were taken out of the lots. This cutting of costs of operation, while retaining sufficient dominion of the cars parked in their lots by means of fencing and manned exit gates to insure payment of the fees due as a condition of releasing parked cars to their owners, has caused the operators to seek to avoid liability for loss or damage by claiming that their more automatic method of operation eliminates the presumption of negligence in case of loss they formerly had to rebut. In our view, the shift to lessened personal contact between the lot operator’s employees and his patrons in no way changes the basic nature of the relationship between the lot operator and his patrons so long as he retains dominion over the ears parked in his lot and can withhold their return until he is paid the full fee due for the parking. It would be ironic if the operator’s use of additional cost-saving devices were read as lessening his responsibility to use due care in protecting cars parked with him from damage or theft. If he-fences in the lot, mans its exits at all hours so that his employees control every removal of cars from the lot, and patrols the lot nightly to record all ears left overnight, he is clearly responsible to exercise a reasonable effort to use his facilities to prevent or at least minimize theft of cars from the lot. And if a theft does occur he must rebut the presumption of negligence that arises therefrom by showing that he used reasonable care to avoid thefts.

Airport long-term parking lots are not public streets or open parking areas. Patrons who must use such lots are made aware of this by the fact that the lots are fenced in and their exits are guarded at all times. Such patrons expect the use of due care by the operator to prevent removal of their cars without the receipts given them by the lot operator (by a machine), the 1 more so because they have no choice but to use the lot and pay the fee imposed. If they find their cars gone when they return, they should be able to recover for the loss unless the operator can show that the loss occurred despite Ms exercise of due care. *183Such, a result is in accord with both public policy and with the public interest in facilitating air travel.

For the foregoing reasons the order of the Appellate Term should be reversed and the judgment of the Civil Court in favor of the plaintiff should be reinstated.

Christ and Benjamin, JJ., concur with Hopkins, Acting P. J.; Shapiro, J., dissents and votes to reverse and to reinstate the judgment of the Civil Court of the City of New York, Queens County, with an opinion, in which Latham, J., concurs.

Order of the Appellate Term of the Supreme Court, Second and Eleventh Judicial Districts, entered May 11,1972, affirmed, without costs. 1