Parking lot damage--who is responsible?

[Bruce]

My wife's car was damaged by a shopping cart while at Wal Mart. She
contacted the manager who gave her a person to call about the damage.
She was asked to send photos of the damage, which she did, but then
received a call a few days later to tell her that Wal Mart wasn't
responsible for the damage. (We have one estimate for about $450 to
have it repaired http://www.universalregistrar.com/html/car.html

Is there much of a chance to collect from Wal Mart in a small claims
court, or would this type of damage in their parking lot not be
considered their responsibility?
Bruce
A.& B.Construction
Houston, Texas
www.1-866-Roof-Men.com

[Michael Jacobs]

Parking lot damage--who is responsible?

Bruce <[email protected]> wrote in message
news:<[email protected]>. ..

My wife's car was damaged by a shopping cart while at Wal Mart. She contacted the manager who gave her a person to call about the damage. She was asked to send photos of the damage, which she did, but then received a call a few days later to tell her that Wal Mart wasn't responsible for the damage. (We have one estimate for about $450 to have it repaired http://www.universalregistrar.com/html/car.html Is there much of a chance to collect from Wal Mart in a small claims court, or would this type of damage in their parking lot not be considered their responsibility? Bruce A.& B.Construction Houston, Texas www.1-866-Roof-Men.com

A parking lot operator, esp. a free one, is usually not considered a
"bailor" of your car -- you didn't turn over custody of the car to
Wal-Mart when you parked there and ask them to watch over it, which
would be a "bailment" (such as when you turn your coat in to the
coat-check person at a restaurant, or hand your keys to the valet
parking attendant, and get a ticket stub to turn in to retrieve your
property). Instead, they just gave you "license" (permission) to use
one of their spaces on your own, with you keeping your own keys, and
remaining responsible for the property you left there -- same as if
you parked it on a public street. Unless you can show, by affirmative
evidence, that it was a Wal-Mart employee who actually caused the
damage, IMO you're out of luck. Of course, you can still make claim
against the person who did cause the damage, but lotsa luck unless
they were kind enough to leave a note on your windshield identifying
themselves, or unless somebody else saw them do it and left you a
note.

--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300

[Timothy Horrigan]

Parking lot damage--who is responsible?

>Is there much of a chance to collect from Wal Mart in a small claims

court, or would this type of damage in their parking lot not beconsidered their responsibility?

Your best bet would be, if you have collision coverage on your car, to claim it
on your insurance.

Wal-Mart probably posted a disclaimer at the entrance to the store disclaiming
responsibility for parking lot mishaps. Not only that, it is unlikely that a
Wal-Mart employee was directly responsible. Maybe an employee pushed the cart
into your car while shagging carts or while assisting a company--- but it is
much more probable that another customer pushed the cart into your car.


*****
Tim Horrigan <[email protected]>
*****

[Paul Cassel]

Parking lot damage--who is responsible?

Horrigan wrote:

Is there much of a chance to collect from Wal Mart in a small claimscourt, or would this type of damage in their parking lot not beconsidered their responsibility? Your best bet would be, if you have collision coverage on your car, to claim it on your insurance.

This is not a claim possible under his collision coverage, but
comprehensive. The car was parked.

As far as collecting from Wal-Mart, per M. Jacobs' post, you'd have to
establish that a bailment was created somehow and the damage occured due
to lack of proper care. I'll add that that if you can prove that
Wal-Mart was negligent in its parking lot operation somehow you can also
collect.

Based on your post, however, the negligence (or even malice) causing the
harm to your property wasn't from Wal-Mart, but from a shopper. I'd say
if you went to court on this, it'd be a long shot that you'd prevail.

-paul
ianal

[bat]

Parking lot damage--who is responsible?

Hello Michael:
You wrote on Tue, 10 Aug 2004 15:00:39 -0400:

MJ> A parking lot operator, esp. a free one, is usually not considered a
MJ> "bailor" of your car -- you didn't turn over custody of the car to
MJ> Wal-Mart when you parked there and ask them to watch over it, which
MJ> would be a "bailment" (such as when you turn your coat in to the
MJ> coat-check person at a restaurant, or hand your keys to the valet
MJ> parking attendant, and get a ticket stub to turn in to retrieve your
MJ> property).

I think you are missing the important point that it was store's cart that
did the damage. The store is not in custody of the parked car, but it is in
"custody" of their own equipment.

If the car was hit not by a cart, but, for example, by a brick fallen from
the building - there's no doubt the store would be responsible. Just another
piece of their equipment.

regards

[Barry Gold]

Parking lot damage--who is responsible?

Michael wrote on Tue, 10 Aug 2004 15:00:39 -0400: MJ> A parking lot operator, esp. a free one, is usually not considered a MJ> "bailor" of your car -- you didn't turn over custody of the car to MJ> Wal-Mart when you parked there and ask them to watch over it, which MJ> would be a "bailment" (such as when you turn your coat in to the MJ> coat-check person at a restaurant, or hand your keys to the valet MJ> parking attendant, and get a ticket stub to turn in to retrieve your MJ> property).

bat <[email protected]> wrote:

I think you are missing the important point that it was store's cart thatdid the damage. The store is not in custody of the parked car, but it is in"custody" of their own equipment.If the car was hit not by a cart, but, for example, by a brick fallen fromthe building - there's no doubt the store would be responsible. Just anotherpiece of their equipment.

They can only be liable if they fail in a "duty of care". Merely
owning a piece of equipment doesn't make you liable. Pieces of
equipment do not run around on their own (unlike, say, dogs), so the
only way a shopping cart can collide with a car is if some human being
causes it to.

I can think of four interesting cases:

1. A store employee is moving the cart when it collides with the
victim's auto. In this case the store is clearly responsible under
respondeat superior.

2. A store employee has possession of the cart but abandons it for
some reason. Subsequently it begins to roll because of the slope of
the lot and collides with an auto. Treat the same as 1, above.

3. A customer is moving the cart when it collides with the victim's
auto. The customer is in control of the cart and is responsible for
the collision. The store is pretty clearly _not_ responsible.

4. A customer uses the cart and abandons it in the lot. As with (2),
it beings to roll and collides with an auto. Clearly the customer is
negligent, but the store may _also_ be negligent. For example, if the
lot is sloped so heavily that it letting go of a cart for a moment to
load your purchases in your trunk, a good lawyer could argue that the
store contributed to the loss through its negligence.

OTOH, most stores have signs in their parking lots that claim they
have no responsiblity for your car when it is parked there. This may
or may not insulate the store against a claim of ordinary negligence.
(Courts have held that you can not insulate yourself against claims
for intentional torts or gross negligence.)
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[Arthur L. Rubin]

Parking lot damage--who is responsible?

bat wrote:

I think you are missing the important point that it was store's cart that did the damage. The store is not in custody of the parked car, but it is in "custody" of their own equipment.

I don't see it. Are YOU responsible if YOUR baseball is thrown through
a neighbor's window? The person who threw it is responsible.

Even in the case of a car, where your insurance covers damage caused
by your car, any excess over the liability limits is the responsibility
of the DRIVER, not the OWNER.

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[Stan Brown]

Parking lot damage--who is responsible?

"bat" <[email protected]> wrote in misc.legal.moderated:
(parked car hit ad damaged, presumably by shopping cart)

I think you are missing the important point that it was store's cart thatdid the damage. The store is not in custody of the parked car, but it is in"custody" of their own equipment.

Is the store singular (it) or plural (their)? :-)

By your theory, if you lend me a knife to cut up vegetables, and I
use it to stab someone, you share the blame because it's your knife.

I don't think so.

Shopping carts are not wild animals: they go where people (or
gravity) put them. Wal-mart owns the carts, but it does not give
them to customers and say "here, go bash a car". Responsibility for
damage rests with the person who was in control of the cart.

Sure, we can construct scenarios. For instance, an elderly shopper
lets go of a cart so that she can dart out of the path of an
oncoming SUV, and the cart crashes into a parked car. If the woman
reasonably believed she was in danger, the SUV driver is responsible
for the consequences of his reckless actions.

But any such scenario would have to be proved, and is rare anyway.
The most likely explanation is that some shopper was careless with a
cart and banged a nearby car, then didn't have the integrity to
leave a note. The responsibility rests with that shopper, but since
s/he can't be identified it's the problem of the car owner and
his/her insurance company. Wal-mart is essentially an innocent
bystander here.

--
If you e-mail me from a fake address, your fingers will drop off.

I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.

Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com

[Michael Jacobs]

Parking lot damage--who is responsible?

"bat" <[email protected]> wrote in message
news:<[email protected]>. ..

I think you are missing the important point that it was store's cart that did the damage. The store is not in custody of the parked car, but it is in "custody" of their own equipment.

Did Wal-Mart have the right to control the details of _how_ the
customer pushing the cart, used it? Or just to make sure they didn't
take it off the lot? IMO even though the "license" Wal-Mart gives to
its customer to use the cart is free, this is like a rental-car
situation -- Hertz is not liable, absent some state law requiring
this, when their customer uses their car to run into somebody else.
The liable person is the one who caused the damage and/or his
employer, unless there is some other independent basis such as
negligent entrustment. Did Wal-mart know that Customer X was known
as "the Mad Banger" because every time he came in, he would grab a
cart and shove it into someone's car? If so, they may be negligent
for letting him use a cart. Otherwise, no.

--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
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For confidential professional advice, consult your own lawyer in a
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Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300

[ptsc]

Parking lot damage--who is responsible?

On Mon, 16 Aug 2004 19:24:29 -0400, [email protected] (Barry Gold) wrote:

4. A customer uses the cart and abandons it in the lot. As with (2),it beings to roll and collides with an auto. Clearly the customer isnegligent, but the store may _also_ be negligent. For example, if thelot is sloped so heavily that it letting go of a cart for a moment toload your purchases in your trunk, a good lawyer could argue that thestore contributed to the loss through its negligence.

I think 5. is much more likely.

5. Customer returns to his car to find his car damaged by a shopping cart.
He has no idea who did it.

6. is kind of amusing.

6. Unknown party abandons cart in the lot, which is gently sloped. Due
to a tremor (say it's California), the shopping cart begins to roll down the
slope and eventually strikes a customer's car. Act of God? Negligence?
Assume the slope isn't excessive and it wouldn't have been reasonable
to level it.

[Falky foo]

Parking lot damage--who is responsible?

"Paul Cassel" <[email protected]> wrote in message
news:[email protected]

Horrigan wrote:

Is there much of a chance to collect from Wal Mart in a small claimscourt, or would this type of damage in their parking lot not beconsidered their responsibility? Your best bet would be, if you have collision coverage on your car, to

claim it

on your insurance. This is not a claim possible under his collision coverage, but comprehensive. The car was parked. As far as collecting from Wal-Mart, per M. Jacobs' post, you'd have to establish that a bailment was created somehow and the damage occured due to lack of proper care. I'll add that that if you can prove that Wal-Mart was negligent in its parking lot operation somehow you can also collect. Based on your post, however, the negligence (or even malice) causing the harm to your property wasn't from Wal-Mart, but from a shopper. I'd say if you went to court on this, it'd be a long shot that you'd prevail.

Right BUT if you even threaten a lawsuit I give you a 90% chance they'll
settle, especially if the amount is only a couple hundred dollars. The
store manager himself (at least at Vons, dont know about WalMart) has the
ability to settle insurance claims under a specified amount if he feels it
prudent.

Send a letter with the claim, make it sound terrible, and see what happens.

[Michael Jacobs]

Parking lot damage--who is responsible?

ptsc <[email protected]> wrote in message
news:<[email protected]>. ..

6. Unknown party abandons cart in the lot, which is gently sloped. Due to a tremor (say it's California), the shopping cart begins to roll down the slope and eventually strikes a customer's car. Act of God? Negligence? Assume the slope isn't excessive and it wouldn't have been reasonable to level it.

Your assumption contains the answer to your question. Actionable
"negligence" is the doing of something that is not reasonable to do,
or the omitting to do something that any reasonable person _would_
have done, with injury as a direct and foreseeable result of that
unreasonable conduct. If a jury concludes it "wouldn't have been
reasonable" to require the owner to level the parking lot, a
conclusion the jury would be free to reach (based probably on their
prior conclusion that "the slope isn't excessive", which is also a
judgment call), then he's not negligent for failing to do so. Since
there's no basis for finding any underlying negligence at all, there's
no need for the defendant to go so far as to assert any affirmative
defenses such as "act of G-d" to get himself off the hook.

But your assumptions are just that, assumptions, and these are not
what a jury starts with when it first faces the issue, or what a
lawyer will look for when he tries to consider whether to take a case.
The "basic" facts might include, for instance, tidbits such as "the
lot slopes at a consistent angle of 2 degrees away from the store
entrance" and "the applicable BOCA codes for parking lot design allow
up to a 4 degree slope in parking lots" and "it would have cost the
owner $XXXXX to level the lot" and "they _do_ have earthquakes here
from time to time" and so forth. The jury takes those basic facts and
then comes to its conclusions, as to whether it was or was not
reasonable for the owner to forego leveling his lot under all the
applicable circumstances.

And it should go without saying that, if they are allowed to make that
judgment call, the jury is also free to come to the _opposite_
conclusion -- that it was _un_reasonable for the lot owner to fail to
level the lot. That's why we have trials -- so that a jury of peers,
not the victim or the defendant, is the one who ultimately makes those
judgment calls.

--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.

Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300

[taphxaz]

Hello,

I had the same thing happen to me yesterday. I understand that Wal-Mart may not be responsible for what a customer does with their carts but I think there is something different in my case. Last night Wal-Mart failed to collect the cars from their parking lot, the parking lot was full of cart. Most, if not all of the cart returns were full. Carts everywhere including the middle of the parking lot, I had to drive around several of them just to get to a parking spot. This caught my attention when I was looking for a place to park so I decided to park next to an island far away from the main door. After I got done shopping, there was a train of six to ten carts that had rammed into my car. I called the manager and he went out to look at my car. He quickly remove the carts away from my car and informed me that they are not normally responsible for cart damaged but in this case he wanted me to talk to the main store manager this morning. I went home got my camera and came back to video tape and take pictures of the mess of carts all over the parking lot. I talked to the main store manager this morning but he was not really interested on what I had to say. I told him of the conditions of his parking lot last night and that it looked like they had not picked up carts for hours before my mishap happened. I even told him I had pictures of the damaged and of his parking lot but he did not want to see them. He said he guarantees me that they had people picking up carts last night. I did not see a single person doing that the hour and forty five minutes I was there looking at my car and taking pictures. I filled out an accident report with Wal-Mart and also my police department but I don't know what to do next.
I believe Wal-Mart was negligent in this case because they failed to collect the carts causing them to be a hazard to their customers.
I am estimating my repair to be around $1200.00.
What should I do next?

[GotSmart]

In most cases WalMart would not be responsible, as they have multiple places for customers to put the carts. When they do not have the lot cleared, they are contributing to a hazardous situation. You could have a case. Talk to a lawyer.

I think that your answer was in the previous post.

Actionable"negligence" is the doing of something that is not reasonable to do,or the omitting to do something that any reasonable person _would_
have done, with injury as a direct and foreseeable result of that
unreasonable conduct.

They have a regular schedule for carts being gathered for that reason. Your vidio proves your case.

[taphxaz]

Update

In most cases WalMart would not be responsible, as they have multiple places for customers to put the carts. When they do not have the lot cleared, they are contributing to a hazardous situation. You could have a case. Talk to a lawyer.

Thank you all for your advised. I was contacted by Wal-Mart's insurance company and they are going to take care of the repairs to my car and give me a rental car during the time. They said that they were negligent for having the parking lot full of shopping carts and she also said they were able to confirm that on the surveillance tape. I don't know if they were able to tell who did the damaged, I'm sure they did, but they are taking care of the repairs so I guess it does not matter.

Thanks again to all for your help.

TAPHXAZ