In the 2009, Saskatchewan case of Sherry Boire v. Eagle Lake Enterprises Ltd. and Paul Florizone o/a Delta Sales, Ms. Boire sued the initial and the subsequent owner of the storage facility for her losses, over $35,000.
There was no written contract, but on the receipt Mr. Florizone wrote “all items left at owner’s risk.” Ms. Boire believed that this meant that she had to have insurance. She did, but there were exclusionary clauses relating to water and other damage, so her insurance did not cover the loss.
Mr. Florizone told Ms. Boire that to enter the building she would need to contact management, and to access her unit she would have to provide her own lock and key. Since he would not have a key to her locker, and therefore no access, she would have to look after the contents.
Mr. Florizone effectively approved of the manner in which Ms. Boire stored her goods. She even placed five pounds poisoned oats for rodent control.
When the plaintiff returned almost five years later, she encountered the damage. However none of the more than 100 other locker – renters, with virtually identical units, had a problem. The facility had been properly heated and kept clean and dry, and was secure. But the people who helped move Ms. Boire out of her unit noted a hairline crack in the floor, powdery mildew halfway up the walls and signs of rodents.
- Were the plaintiff’s goods damaged while in the defendants’ building?
- If so, what caused the damage?
- Were the defendants liable in bailment, negligence, or breach of contract?
- Did “left at owner’s risk” on the receipt absolve the defendants of responsibility?
- What was the quantum of damages and how should it be apportioned?
- Did the plaintiff contribute to the loss by her own negligence or by failing to take steps to reduce the loss?
The Position of Ms. Boire:
The Position of the Defendants:
- No bailment existed since Ms. Boire had exclusive access to her locker and therefore the defendants did not have full possession of the contents.
- The defendants were not negligent nor did they breach the terms of the contract. They provided a secure, clear, dry storage unit, and in fact also placed antifreeze and traps to avoid rodents. There were never any other problems with damage over the entire five years, to the property of others.
- Ms. Boire must have allowed damp items into the unit, packed too tightly, or was otherwise negligent; if not entirely, then partially.
- Ms. Boire did not prove the condition of the chattels when she first stored them.
- Damage may have occurred during or after removal from storage.
There was no definite answer as to how the damage occurred, but it did happen while the contents were in storage. It likely accumulated over time. The property of other tenants was not damaged because it was not stored long enough.
Because only Ms. Boire had access to her unit, the relationship was not a bailment. However, the defendants owed her a duty of care. The “left at owner’s risk” did not absolve them of responsibility, for two reasons: it was reasonable for Ms. Boire to understand that the phrase meant she was responsible for insurance, and she did have coverage, albeit insufficient; and it was clear that optimum storage conditions were critical to Ms. Boire, constituting an implied in the contract. The defendants breached it.
The defendants’ duty of care meant they were required to keep the surrounding environment safe. Ms. Boire relied on the defendants for an assurance that her goods would not be damaged by anything that could affect the safety of the unit. Mr. Florizone assured that leaving the goods in his premises would be the same as storing them in her own home. And of course in one’s well-kept home this would include ensuring a rodent-free environment and monitoring for moisture and water seepage. The defendants were negligent on both counts. Furthermore, they failed to alert Ms. Boire to the possibility of rodent and moisture problems.
But in this “dual control” storage arrangement, Ms. Boire had responsibilities since she alone had access to her unit. Mr. Florizone cautioned her that she had to look after her property. If she had stored the goods in her own home over that period of time and acted in a prudent manner, periodically she would have inspected them, or in failing health instructed someone else to do so. Inspections might have uncovered the damage in time to prevent it from progressing.
While approximately $35,000 in damage was proven, since the case was argued in small claims court the maximum recoverable was $20,000. A $20,000 judgment was entered. But Ms. Boire was found 50% negligent, so she was awarded only $10,000. The defendants were jointly and severally responsible for the other 50% of the loss.
The Moral of the Story:
- Periodically monitor goods in storage
- Considering giving management a key, if permitted
- Consider purchasing supplementary coverage which insures against all losses
- While in this case the waiver of liability was deemed inconsequential, if you can, quality in writing whatever you agree to
- If after discussion with counsel you think you have an excellent case, ponder proceeding in a higher court.
Alvin Starkman received his Masters in Social Anthropology in 1978. After teaching for a few years he attended Osgoode Hall Law School, thereafter embarking upon a successful career as a litigator until 2004. Alvin, a good-standing member of the Law Society of Upper Canada, now resides with his wife Arlene in Oaxaca, Mexico, where he writes, leads small group tours to the villages, markets, ruins and other sights, is a consultant to documentary film production companies, and operates Casa Machaya Oaxaca Bed & Breakfast.