Virginia Lawyers Weekly//August 12, 2019
Virginia Lawyers Weekly//August 12, 2019//
Where plaintiff claims defendant marina’s actions caused his boat to sink during a winter storm, the parties’ boat slip lease did not create a bailment, so plaintiff’s cause of action is limited to a claim for breach of contract. His bailment-based claims are dismissed.
Defendant rented a boat slip to plaintiff. Plaintiff’s boat sank when a winter storm hit defendant’s marina. He alleges defendant’s actions — turning the electricity off at the marina and denying him access to the boat — caused the sinking.
Plaintiff sued for breach of a bailment contract and for “negligence/gross negligence arising from Defendant’s duties to act with ordinary care under the bailment relationship.”
Defendant seeks summary judgment, arguing that the lease did not create a bailment agreement, and that the contract, which incorporated “Extreme Weather Preparedness Plan” and “Use Restrictions,” releases defendant from liability.
Plaintiff responded that the lease does not release defendant from its own negligence and that a bailment was created when plaintiff “delivered possession of the boat” to defendant.
“To create a bailment, there must be ‘a delivery of the chattel by the bailor and its acceptance by the bailee.’ … There does not have to be a “meeting of the minds’ when creating a bailment, ‘it is the element of lawful possession … and duty to account for the thing as the property of another that creates the bailment.’ … For the bailee to have possession sufficient to create a bailment, ‘there must be the union of two elements, physical control over the thing possessed, and intent to exercise that control.’”
In this case, defendant rented the slip space to plaintiff. Defendant did not assume liability for the boat, did not have the keys, and plaintiff “had key code access to the dock and his boat at all times.” Even though defendant could, under the rental contract, move the boat for an emergency or to repair the dock, this was not complete control or possession that would create a bailment.
Under the rental contract and the extreme weather plan, defendant was required to give plaintiff reasonable access to the slip, and defendant was released from liability for weather-related events. “Plaintiff alleges that Defendant failed to allow access to the boat prior to the storm in question preventing him from moving or otherwise tending to his boat.” Despite the contractual release of liability, “any release is subject to Defendant’s compliance with its contractual obligations (e.g. allowing reasonable access). The Court finds that the issue is a matter of disputed material fact.”
Defendant’s duties are established by the contract. There is no common law duty outside the contract because there was no bailment. Plaintiff’s bailment-based claims are dismissed, and he will be allowed to amend his complaint to clarify his contract claim outside the scope of a bailment.
Lowenstein v. Rocketts Landing Yacht Club. Case No. CL-16-5571, March 25, 2019; Richmond Cir. Ct. (Marchant). VLW 019-8-068, 5 pp.