To: Penni Frank, Supervising Attorney
From: Bridget Hale, Legal Assistant
Date: October 9, 2023
RE: King, Esther – File #2022022
Issue
Did bailment take place when Sunny Days Resort placed Esther King’s Dolce & Gabbana
sunglasses in their vault for safekeeping?
Brief Answer
Yes, bailment was established when Esther gave her sunglasses to a Sunny Days Resort
employee, to place in the resort vault. “Bailment is the union of two elements, possession, and an
intent to exercise that control.” Morris v. Hamilton, 302 S.E. 2d 51, 53 (Va. 1983). Once Ms.
King handed her sunglasses to a Sunny Days Resort employee, Alex, and he took them,
possession was established. Once Alex brought the sunglasses to the vault in the office, the intent
to exercise control was satisfied. Therefore, bailment was established when Alex, a Sunny Days
Resort employee, took control of Esther King’s sunglasses.
Fact Summary
A few weeks ago, Esther King vacationed in Virginia Beach, Virginia, and stayed at the
Sunny Days Resort. During her stay, her Dolce & Gabbana “blooming” sunglasses went missing
after giving them to the attendant on duty to place in the hotel vault. The sunglasses were a gift
worth about $1,100. While staying at the resort, Esther asked the front desk attendant, Alex, if
the resort could place her sunglasses in the resort vault while she went to dinner. Alex took the
sunglasses to the back office. After dinner, Esther headed to the front desk to retrieve her
sunglasses, but nobody was there.
The next morning, Esther informed the attendant on duty, Carson, that her sunglasses
were in the hotel vault. Carson and the hotel manager checked the vault and informed Esther that
the sunglasses were not there. A week later, the hotel manager contacted Esther and informed her
that after reviewing the security footage, it was observed that Alex had placed the sunglasses in
the vault but had returned and removed the sunglasses. Alex gave the sunglasses to a friend of
his. Alex never returned to work and the manager was unable to locate him or the sunglasses.
Discussion
Gratuitous Bailment occurs when an individual comes into possession of chattel and
exercises physical control over it. Physical control was created when King handed Alex her
sunglasses to place in the resort vault. Therefore, bailment was established under the two
elements of possession and exercise of physical control.
1. Possession
“To have possession there must be a union of two elements --- physical control over
the thing possessed and an intent to exercise that control.” K-B Corporation v.
Gallagher, 218 Va. 381, 384 S.E.2d 183 (Va. 1977). Edward Gallagher was employed
by K-B Corporation in July 1973 and was mandated by the company to supply his
own tools. Id. On November 19, 1973, Edward Gallagher reported to work where his
tools were still locked up in the shop building. Id. Gallagher had the only key to his
toolbox. Id. He was ordered by his supervisor to take a customer to a Western Union
to pick up a money order. Id. Edward Gallagher did not have anyone keeping an eye
his tools or toolbox for him when he left the shop, and when he arrived back 40
minutes later, he found his tools and toolbox gone. Id. K-B Corporation did not have
physical control over Edward Gallagher’s tools or an intent to exercise physical
control over the tools or toolbox because Gallagher locked up his tools and had the
only key that accessed his toolbox in his possession at all times. There was no
possession established.
“For an alleged bailee to have possession, he must have both physical control over the
property and an intent to exercise that control.” Morris v. Hamilton, 302 S.E. 2d 51,
53 (Va. 1983). At roughly 11:30 p.m., while Marsha Hamilton was working in the
kitchen for a dinner party, she removed her watch and placed it on the counter. Id.
Around midnight, Andrea Morris saw the watch on the counter and picked up the
watch to return it to Hamilton. Id. Hamilton and her fiancé left the dinner party
shortly after midnight as she had become ill. Id. Morris could not remember what she
had done with the watch, thinking she had either given it to Hamilton’s fiancé or put
it somewhere in the house for safekeeping. Id. Morris admitted to being in possession
of the watch, which occurred when she picked it up off the counter. Bailment was
established when she picked up the watch and walked away with it.
One of the elements required for bailment is possession. In Morris v. Hamilton, Morris
was in possession when she picked Hamilton’s watch up from the counter, to safeguard it.
Similarly, Alex took possession of Esther King’s sunglasses when he accepted them from her to
place in the resort vault. In K-B Corporation v. Gallagher, the only person in possession of the
key that could access Gallagher’s toolbox and tools was Gallagher himself. Esther King could
not access the vault. Only the resort staff had access to where her sunglasses were placed.
2. Exercise Physical Control
“Exercise of physical control is the hallmark of ‘care, custody, and control’ of
another’s property.” Zurich American Ins. Co. v. Public Storage, 743 F.Supp. 2d 525,
542 (E.D. VA 2010). Talal M. Nsouli leased a storage unit from Public Storage in
August 1999, to store roughly 600 boxes of medical records. Id. Public Storage
requested a storage key from Nsouli, to make repairs to the ceiling in the storage unit,
and the key was delivered May 31, 2006. Id. During the process of repairing the
ceiling, the boxes were removed and ultimately destroyed. Id. The courts determined
that Public Storage was in the care, custody, and control of Nsouli’s medical records.
Id.
“Physical control coupled with an intent to exercise control over the goods constitute
possession.” Handelsgesellschaft v. Sheridan Transp. Co., 800 F.Supp. 1359, 1366
(E.D. VA 1992). In March 1990, Port Everglades created a charter party with
Sheridan Towing Company via Sheridan Transportation Corporation (“Sheridan”). Id.
Port Everglades then agreed with Otto Wolff to move rebars to Puerto Rico by using
the barge that came through Sheridan. Id. Sheridan reported that it rained periodically
during the undertaking of loading up the barge, which led to the barge’s hold
becoming wet. Id. The bill of landing, supplied by Port Everglades to Otto Wolff,
remarked that during the time of loading the cargo was slightly rusted. Id. Once the
cargo reached Puerto Rico, Wolff complained to Sheridan that the cargo was
considerably rusted and corroded. Id. Sheridan was not in physical control of the
cargo and they were not in a contract with Otto Wolff. The court decided that there
was no contract of carriage or bailment due to Sheridan not having physical control
over the cargo. The chartered party was found to be in control, but there was no way
to control the weather that ultimately caused the damage to the cargo.
The second requirement for bailment to be established is exercise of physical control. In
Zurich American Ins. Co. v. Public Storage, the medical records were destroyed by a third party,
not the actual company. In Handelsgesellschaft v. Sheridan Transp. Co., the damage to the cargo
was caused by the weather which nobody could physically control. In both these cases, bailment
was not fulfilled because there was no exercise of physical control established. In the Esther
King case, exercise of physical control was fulfilled when the resort employee, Alex, accepted
the sunglasses, taking possession and control of them when he left to place them in the resort
vault for safekeeping.
Conclusion
A Gratuitous Bailment was established when Alex took possession of King’s sunglasses.
Bailment was also established when Alex exercised physical control over King’s sunglasses
when he left for the office to place the sunglasses in the resort vault. Both requirements for
Gratuitous Bailment, possession, and exercise of physical control, were created. When Esther
King handed her sunglasses to Alex, he exercised physical control over them. When Alex took
them to the hotel vault, where only the staff had access, he gained possession of the sunglasses.
