"Hypothetical" Ethical Restaurant Dilemma Poll

[Vadouvan]

Let's say one cool Philadelphia evening I decide I am in the mood for some Tempranillo and I decide to go to a particular restaurant.

I have some delicious food, great drinks, see a lot of friends...........essentially a great time.

Such a great time that it occurs to me when I get home that I absentmindedly left my backpack on the hooks underneath the bar. I was having a jovial evening and perhaps a bit buzzed but not wasted, just forgetfull Vitis Vinifera buzz

At this point, I call the restaurant and they are closed.

I would consider it a minor loss except inside the first flap of my backpack is an Apple Macintosh I-Mac G4.

Next day I go to the restaurant just before they open and Inquire about my bag, in my discussions with the "staff" it is established that employees of the restaurant indeed found my bag and put it in the "office" for safekeeping ostensibly till identity of the owner was established.

Lets call this the 1st recovery.

Here comes the dilemma....

It is also established later in that conversation that subsequent to that 1st recovery, backpack and computer disappear again and are never to be found like Jimmy Hoffa.

1. Should i suck it up, change my last name to Dumas and fork out $1500 for another computer because it intrinsically was my responsibility for forgeting the bag in the first place even though there is an established 1st recovery by the restaurant.

OR

2. Restaurant should replace my computer since they found it and it was "stolen" from thier office

I welcome your thoughts.......

Edited April 17, 2007 by Vadouvan (log)

[philadining]

I don't have a solution for your dilemma, but dude, you're living my deepest primal techno fear: ahhhggh, where's my laptop!?!?

I feel for you man...

[Rich Pawlak]

It's on the restaurant now, it seems to me.

[Mano]

Probably one or more lawyer types will chime in, but it appears this is a small claims issue. It makes sense that when you went to the restaurant and were told they had the items but wouldn't give them to you, they then assumed responsibility.

If it were my laptop the larger "cost" would be in what's stored on it, not the hardware. Hope you backed everything up. Also hopefully you'll reach an equitable settlement.

If it's Osteria or a restaurant you really like maybe they'll pay you back in meals.

[Jeff L]

V, the title of this thread is interesting. Did this actually happen to you and if so, you ought to drop the hypothetical part of the title.

In any event, I agree with mano on this one and would certainly pursue the owners of the establishment. They may not be responsible for replacement of the laptop in a legal sense, but the fact that one of the staff told you that it had been found and put in the office sems to me to create some responsibility on the owners part. One would hope they would at least make some offer of a settlement to you.

[David McDuff]

I'm inclined to concur with most of the respondents above, V. If the staff had never fessed up to any awareness of the bag, it would have been your loss. Since they did admit to finding it, saving it for you and then "losing it," I think it became their responsibility -- ethically if not legally. The tough question will be how to place a value upon not just the hardware but also its contents in the event that you do not have a backup. That part may just fall back on the original owner.... Bonne chance!

[srhcb]

If the establishment lost the same item you lost, why should they be liable and you not?

SB (Devils Advocate)

[SarahW]

If the establishment lost the same item you lost, why should they be liable and you not?

SB (Devils Advocate)

←

Not part of the hypothetical BUT:

If it were established that an employee of the restaurant took the item, and not an invitee, he restaurant is liable for the loss of the item. Conversion committed by an employee is an automatic "pay up".

[Fat Guy]

I don't know the specific laws where you are, but as a general theoretical question of property this is probably a situation of custody. In general, in property law, once the property is in the establishment's custody, it's the establishment's responsibility. It's the same as if you'd checked a coat and it had been stolen. At least, that's what you'd argue. Also, the restaurant's insurance policy may very well have coverage for this sort of instance -- something the restaurant won't likely admit or even try to find out unless there's a threat of litigation. If you do choose to pursue this, I suggest you get the restaurant to admit to custody in writing or on tape. Otherwise, it may just be denied.

If the owner never claimed the mislaid property it would become the property of the establishment. So there is a potential benefit to balance the potential liability. Proper handling of lost-and-found items is part of doing business. Any place of public accommodation needs to have procedures for this. It's not like this is a huge surprise burden. You'll be doing everyone a favor by pursuing the matter.

[lancastermike]

One gets liquored up and one looses ones laptop. It is the American way to litigate someone else to recover said laptop, or the cost of it. Unlike Mr. Shaw I am not an attorney and cannot comment as to the legal issues here. However, it seems personal responsibility may be the deciding factor to me.

[Vadouvan]

First of all, I would like to thank everyone for taking the time to post your thoughtful comments, in particular Fat Guy, Jeff L.

V, the title of this thread is interesting. Did this actually happen to you and if so, you ought to drop the hypothetical part of the title.

Before I continue, here are a few facts.

To those who sent thier condolences by PM, Thanks but it actually didnt happen to me.

Unfortunately as Jeff L. Holmes suspects, the story is not "hypothetical".

This actually happened to a good friend of mine at a very high profile establishment that is raking in $$$$ like leaves in Vermont in october.

He sought my advice and opinion and essentially I think his computer should be replaced.

I am not going to name the restaurant unless either he explicitly allow's me to.

Let me explain.

How much $$$$$ the restaurant makes is besides the point, just a fact to note.

Lancastermike......I am with you on the passing the buck attitude that many in our society seem to have these days but it's a bit different.

For clarity lets call the owner of the laptop Jack.

The basic crux of Jacks story is the restaurant did find his computer and then it disappeared.

That information was conveyed to him.

I would assume that if indeed they admitted that much, it's kinda lame to say "yes we found it but it's gone".

Jack actually feels bad and loves the restaurant but he loves his laptop too and wants it back.

There is no question that the restaurant can basically pick up the phone, call Springboard Media and have the replacement computer walked over within 30 minutes.

End of story.

There does seem to be some resistance and they are "resesarching insurance issues".

I happen to think in the scope of restaurant potential litigation, this is like the fender-bender when two really nice guys have a car accident, they dont call the cops or thier insurance companies, exchange information and they hammer out a deal BECAUSE it isnt worth the hassle or DEDUCTIBLES......jeez.

Funny enough, late breaking news and I kid you not, the restaurant conceded politely and is replacing it.

About 6-8 weeks total time from loss to replacement.

I guess this finishes the thread but It opens up the question of how liability is assumed if you have a bad "lost and Found" policy in a restaurant.

And $1500 isnt even an expensive laptop as Philadining will attest to ......

[kretch]

Disclaimer 1: This is not legal advice.

Disclaimer 2: This opinion posted below is public record and to my knowledge posting/sharing it does not violate any copyrights or similar protections.

Classic case of bailment. If litigated restaurant ought to be found liable. Shamrock Hilton V. Caranas (1972) is instructive:

Shamrock Hilton Hotel v. Caranas, 488 S.W.2d 151:

JUDGES: John M. Barron, Associate Justice. Sam D. Johnson, Associate Justice.

OPINION BY: BARRON

OPINION:

This is an appeal in an alleged bailment case from a judgment non obstante veredicto in favor of plaintiffs below.

Plaintiffs, husband and wife, were lodging as paying guests at the Shamrock Hilton Hotel in Houston on the evening of September 4, 1966, when they took their dinner in the hotel restaurant. After completing the meal, Mr. and Mrs. Caranas, plaintiffs, departed the dining area leaving her purse behind. The purse was found by the hotel bus boy who, pursuant to the instructions of the hotel, dutifully delivered the forgotten item to the restaurant cashier, a Mrs. Luster. The testimony indicates that some short time thereafter the cashier gave the purse to a man other than Mr. Caranas who came to claim it. There is no testimony on the question of whether identification was sought by the cashier. The purse allegedly contained $5.00 in cash, some credit cards, and ten pieces of jewelry said to be worth $13,062. The misplacement of the purse was realized the following morning, at which time plaintiffs notified the hotel authorities of the loss.

Plaintiffs filed suit alleging negligent delivery of the purse to an unknown person and seeking a recovery for the value of the purse and its contents.

The trial was to a jury which found that the cashier was negligent in delivering the purse to someone other than plaintiffs, and that this negligence was a proximate cause of the loss of the purse. The jury further found that plaintiffs were negligent in leaving the purse containing the jewelry in the hotel dining room, and that this negligence was a proximate cause of the loss.

A motion for judgment n.o.v. and to disregard findings with respect to the findings that plaintiffs' negligence was a proximate cause of the loss of the purse and its contents was granted, and judgment was entered by the trial court for plaintiffs in the amount of $11,252.00 plus interest and costs. Shamrock Hilton Hotel and Hilton Hotels Corporation have perfected this appeal.

...

Contrary to appellants' contention, we find that there was indeed a constructive bailment of the purse. The delivery and acceptance were evidenced in the acts of Mrs. Caranas' unintentionally leaving her purse behind in the hotel restaurant and the bus boy, a hotel employee, picking it up and taking it to the cashier who accepted the purse as a lost or misplaced item. The delivery need not be a knowingly intended act on the part of Mrs. Caranas if it is apparent that were she, the quasi or constructive bailor, aware of the circumstances (here the chattel's being misplaced) she would have desired the person finding the article to have kept it safely for its subsequent return to her. See 8 Am. Jur. 2d Bailments Sec. 53, p. 959 (1963); and 8 C.J.S. Bailments Sec. 15, pp. 360-362 (1962).

As stated above, the evidence conclusively showed facts from which there was established a bailment with the Caranases as bailors and the hotel as bailee. The evidence also showed that the hotel, as bailee, had received Mrs. Caranas' purse and had not returned it on demand. Such evidence raised a presumption that the hotel had failed to exercise ordinary care in protecting the appellees' property. When the hotel failed to come forward with any evidence to the effect that it had exercised ordinary care, that the property had been stolen, or that the property had been lost, damaged or destroyed by fire or by an act of God, the appellees' proof ripened into proof by which the hotel's primary liability was established as a matter of law. Trammell v. Whitlock, 150 Tex. 500, 242 S.W. 2d 157 (1951); Baird v. Williams, 56 S.W. 2d 893 (Tex. Civ. App.-Dallas 1933, no writ).

...

Further, this bailment was one for the mutual benefit of both parties. Appellees were paying guests in the hotel and in its dining room. Appellant hotel's practice of keeping patrons' lost personal items until they could be returned to their rightful owners, as reflected in the testimony, is certainly evidence of its being incidental to its business, as we would think it would be for almost any commercial enterprise which caters to the general public. Though no direct charge is made for this service there is indirect benefit to be had in the continued patronage of the hotel by customers who have lost chattels and who have been able to claim them from the management.

Having found this to have been a bailment for the mutual benefit of the parties, we hold that the appellants owed the appellees the duty of reasonable care in the return of the purse and jewelry, and the hotel is therefore liable for its ordinary negligence. Citizens' Nat. Bank v. Ratcliff & Lanier, 253 S.W. 253 (Tex. Comm'n App. 1923).

Appellants urge that if a bailment is found it existed only as to "the purse and the usual petty cash or credit cards found therein" and not to the jewelry of which the hotel had no actual notice. This exact question so far as we can determine has never been squarely put before the Texas Courts, but as appellants concede, the general rule in other jurisdictions is that a bailee is liable not only for lost property of which he has actual knowledge but also the property he could reasonably expect to find contained within the bailed property. See and compare Note, Bailment -- Articles Left in Automobiles, 10 Baylor L. Rev. 216, 217-218 (1958). To the extent that appellants contend that Barnette v. Casey, 124 W. Va. 143, 19 S.E. 2d 621 (W. Va. 1942), Samples v. Geary, 292 S.W. 1066 (Kansas City Ct. App. 1927) and Wendt v. Sley System Garages, Inc., 124 Pa. Super. 224, 188 A. 624 (1936) are dispositive of this question, we decline to follow them.

We believe appellants' contention raises the question of whether or not it was foreseeable that such jewelry might be found in a woman's purse in a restaurant of a hotel such as the Shamrock Hilton under these circumstances.

Although the burden may rest with the appellees to prove that the jewelry was a part of the total bailment and the issue of whether it was reasonably foreseeable that such jewelry might be contained within the lost purse ordinarily should have been submitted by appellees, it remains for the hotel to object to the omission of the issue if it wishes to avoid the possibility of deemed findings by the Court. Rule 279, TEX. R. CIV. P. We cannot say as a matter of law that there is no evidence upon which a jury could reasonably find that it was foreseeable that such jewelry might be found in a purse under such circumstances as here presented. It is known that people who are guests in hotels such as the Shamrock Hilton, a well-known Houston hotel, not infrequently bring such expensive jewelry with them, and it does not impress us as unreasonable under the circumstances that one person might have her jewelry in her purse either awaiting a present occasion to wear it or following reclaiming it from the hotel safe in anticipation of leaving the hotel.

We find that the question of whether it is reasonably foreseeable that a woman, under the circumstances of this case, might keep jewelry in a purse which is determinative of whether there was a bailment of jewelry and whether the negligence in losing the purse was a proximate cause of losing the jewelry, is an omitted issue in the grounds of recovery to which the submitted issues are reasonably or necessarily referable. Appellants were on notice that recovery was sought primarily for the value of the jewelry and that the only ground for recovery was the hotel's negligence with respect to the bailment, purse and contents. This is reflected in appellants' second amended original answer where they allege that there was no bailment as to the jewelry within the purse.

The record reflects no timely objection to the issues submitted or to the omitting of a special issue, and therefore in support of the judgment and in accord with TEX. R. CIV. P. 279, we deem it to be found that one might reasonably expect to find valuable jewelry within a purse under the circumstances of this case in support of the judgment below. It follows that the findings of negligence and proximate cause of the loss of the purse apply to the jewelry as well, which is deemed to be a part of the bailment. There was no error in the judgment insofar as it was complained that there was no bailment of the jewelry and that there was no connection between the findings of negligence and proximate cause as regards the purse and the jewelry.

Appellant's final point of error complains of the trial court's granting of appellees' motion for judgment notwithstanding the verdict and disregarding the jury's findings on special issues that appellees' leaving the purse was negligence and a proximate cause of the loss of the jewelry. In support of this contention appellants cite Southwestern Hotel Co. v. Rogers, 183 S.W. 2d 751 (Tex. Civ. App. -- El Paso 1944), aff'd 143 Tex. 343, 184 S.W. 2d 835 (1945) and Driskill Hotel Co. v. Anderson, 19 S.W. 2d 216 (Tex. Civ. App. -- Austin 1929, no writ), for the proposition that contributory negligence of a guest of a hotel is an absolute defense to a claim for jewelry or money lost in the hotel. Both cases, however, are distinguishable on the facts in that here the loss occurred after appellees had relinquished possession of the purse and its contents, and the hotel alone had assumed responsibility for the items. The case of Motsenbocker v. Wyatt, 369 S.W. 2d 319 (Tex. Sup. 1963) is similarly distinguishable. There the mother of the injured child, Mrs. Wyatt, allowed her daughter to go outside to play. The child disobeyed her mother by going to the park where the defendant, Mr. Motsenbocker, found her. The defendant tried to take the child to her home. She was injured when Motsenbocker's vehicle accidentally ran over the child. The Supreme Court held it to be error for the court of civil appeals to find contrary to jury findings that as a matter of law there was no evidence of plaintiff's negligence and that such was a proximate cause of the child's injuries. The theory of "new and independent cause" was not here submitted or defined by the trial court. In any event the Motsenbocker case is distinguishable for the reasons similar to those set out above, i.e., that the parent did not give up the control of and the responsibility for supervising the child, nor was there any arrangement for the parties' mutual benefit involved.

We find Vollmer v. Stoneleigh-Maple Terrace, 226 S.W. 2d 926 (Tex. Civ. App. -- Dallas 1950, writ ref'd), cited by appellees, to be in point. There the plaintiff was a guest in the Stoneleigh Hotel and paid monthly to park his automobile in the hotel's adjacent garage. On the evening in question he drove his car to the hotel entrance and turned it over to an employee of the defendant who parked it in its usual spot. While the employee was parking another car, he heard the noise of the starting motor and arrived just in time to see plaintiff's car being driven away. The jury found that the defendant was guilty of several acts of negligence, each of which was a proximate cause of the loss of the vehicle. It also found that the plaintiff, Vollmer, was negligent in accepting the garage facilities as furnished by the defendant; in failing to keep a proper lookout for his own automobile; in failing to remove the keys from the automobile; and in failing to see that there was a sufficient number of attendants to guard his automobile. Each of these acts was found to be a proximate cause. The Court of Civil Appeals reversed the judgment of the trial court in favor of defendant and rendered judgment for plaintiff, holding that the plaintiff's contributory negligence was not a proximate cause as a matter of law. The Court stated: "As appellant (plaintiff) aptly points out, while the car was in the possession of defendant the duty of care as between the parties rested solely upon it, plaintiff being relieved of further duties in connection with a proper lookout, safeguarding of keys, etc." 226 S.W. 2d at 928.

The bus boy and cashier assumed possession and control of the purse per instructions of the hotel with respect to articles misplaced or lost by customers. This assumption of possession was as complete as that of defendant's employee in Vollmer v. Stoneleigh-Maple Terrace, supra. In each instance, once the bailee assumed possession he alone had the duty to safeguard the bailed article. We find therefore under these facts that the negligence of Mrs. Caranas was not a cause ". . . which in a natural and continuous sequence produces an event . . ." of this nature.

The trial court's action in disregarding special issue number eight pertaining to proximate cause is therefore authorized and is proper under the circumstances. See Phoenix Refining Co. v. Tips, 125 Tex. 69, 72, 81 S.W. 2d 60, 61 (1935); Bell v. Campbell, 434 S.W. 2d 117 (Tex. Sup. 1968); Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, 164 (1896). The active cause which produced the loss was wholly independent of the negligence of Mrs. Caranas, and the hotel's primary duty of ordinary care to its paying guest was clear.

The judgment of the trial court is affirmed.

Edited April 17, 2007 by kretch (log)

[Vadouvan]

Tom

I see you are getting your money's worth out of Tulane.

See you in New york indeed...

Does this mean you are buying lunch .......?

[kretch]

Tom

I see you are getting your money's worth out of Tulane.

See you in New york indeed...

Does this mean you are buying lunch .......?

←

Not Tulane amigo. Lunch is on me at least once, sure thing.

Edited April 17, 2007 by kretch (log)

[Vadouvan]

Not Tulane amigo.

Lunch is on me at least once, sure thing.

I know, didnt want to Rat you out.

Thanks for the offer, do make sure its the day you are in the mood for Perse...haha.

Seriously seems like you need attorneys for every nitty gritty detail these days.....

[Jeff L]

Late breaking news eh? This EGullet thing is indeed far reaching and I guess not be f'd with...

Signed Jeff L Holmes

[Vadouvan]

Late breaking news eh? This EGullet thing is indeed far reaching and I guess not be f'd with...

Signed Jeff L Holmes

Actually Jeff..

Kretch and I were discussing it a month ago over drinks in person and we never posted it till yesterday.

I only posted to see opinions not embarass the restaurant, free speech can be exercised with caution. The decision to replace was made prior to my post but I was co-incidentally informed of it.

EG had nothing to do with the decision.

There is already a website for that kind of behaviour, it's called shamelessrestaurants.com......

[docsconz]

Just out of curiosity, but did they ever explicitly admit to the laptop or just the bag?

[Vadouvan]

Just out of curiosity, but did they ever explicitly admit to the laptop or just the bag?

As I recall Doc just the bag but then the legal ramifications of the bag's content's complicates things.

BUT you can always hear when people are walking on eggshells, someone obviously looked in the bag as soon as it was found.

I am just interested in the legal issues not to crucify anyone.

Liability is a delicate art....

[Jeff L]

Late breaking news eh? This EGullet thing is indeed far reaching and I guess not be f'd with...

Signed Jeff L Holmes

Actually Jeff..

Kretch and I were discussing it a month ago over drinks in person and we never posted it till yesterday.

I only posted to see opinions not embarass the restaurant, free speech can be exercised with caution. The decision to replace was made prior to my post but I was co-incidentally informed of it.

EG had nothing to do with the decision.

There is already a website for that kind of behaviour, it's called shamelessrestaurants.com......

←

Oh, so you admit it was Kretch..

Seriously though, it is an interesting topic for this forum and the country at large. I totally understand Mike's point of personal responsibility and agree except in this or similar cases provided above by some dude who obviously works for Lexus-Nexus.

It's too true that people seem to want to call the folks at 1 800 I'll sue the shit out of you before attempting to try resolving matters personally. Kind of helps me in understanding how elementary school kids around here threaten their friends with legal action because their mommy or daddy happen to sue people for a living, but that's a whole other topic.

Edited April 17, 2007 by Jeff L (log)

[Vadouvan]

Kind of helps me in understanding how elementary school kids around here threaten their friends with legal action because their mommy or daddy happen to sue people for a living.

Actually Jeff it's the parents fighting at the little league games now while the kids watch in horror...

[kretch]

Just out of curiosity, but did they ever explicitly admit to the laptop or just the bag?

As I recall Doc just the bag but then the legal ramifications of the bag's content's complicates things.

←

Regarding the matter of the contents of the forgotten bag: the opinion speaks favorably to our hypothetical plaintiff, if you agree that a laptop in a shoulder bag is no more surprising in 2007 than thousands of dollars of jewelry was in a purse was in 1972:

Appellants urge that if a bailment is found it existed only as to "the purse and the usual petty cash or credit cards found therein" and not to the jewelry of which the hotel had no actual notice. This exact question so far as we can determine has never been squarely put before the Texas Courts, but as appellants concede, the general rule in other jurisdictions is that a bailee is liable not only for lost property of which he has actual knowledge but also the property he could reasonably expect to find contained within the bailed property.

...

We believe appellants' contention raises the question of whether or not it was foreseeable that such jewelry might be found in a woman's purse in a restaurant of a hotel such as the Shamrock Hilton under these circumstances.

...

We cannot say as a matter of law that there is no evidence upon which a jury could reasonably find that it was foreseeable that such jewelry might be found in a purse under such circumstances as here presented. It is known that people who are guests in hotels such as the Shamrock Hilton, a well-known Houston hotel, not infrequently bring such expensive jewelry with them, and it does not impress us as unreasonable under the circumstances that one person might have her jewelry in her purse either awaiting a present occasion to wear it or following reclaiming it from the hotel safe in anticipation of leaving the hotel.

Edited April 17, 2007 by kretch (log)

[kretch]

One gets liquored up and one looses ones laptop. It is the American way to litigate someone else to recover said laptop, or the cost of it.  Unlike Mr. Shaw I am not an attorney and cannot comment as to the legal issues here. However, it seems personal responsibility may be the deciding factor to me.

←

Final thought: even if it seems sensible that we should be always held responsible for our carelessness, the law doesn't agree. Again from the opinion:

Contrary to appellants' contention, we find that there was indeed a constructive bailment of the purse. The delivery and acceptance were evidenced in the acts of Mrs. Caranas' unintentionally leaving her purse behind in the hotel restaurant and the bus boy, a hotel employee, picking it up and taking it to the cashier who accepted the purse as a lost or misplaced item. The delivery need not be a knowingly intended act on the part of Mrs. Caranas if it is apparent that were she, the quasi or constructive bailor, aware of the circumstances (here the chattel's being misplaced) she would have desired the person finding the article to have kept it safely for its subsequent return to her. See 8 Am. Jur. 2d Bailments Sec. 53, p. 959 (1963); and 8 C.J.S. Bailments Sec. 15, pp. 360-362 (1962).

Edited April 17, 2007 by kretch (log)

[Vadouvan]

So what you are saying in legalese Tom is that...

The contents of the bag (assuming they fit) isnt the issue but does the modern model allow for the fact that this was a backpack specifically constructed for Laptop computers which vary in price.

Is anything within the bag covered and what determines "reasonable", what may be reasonable to me may not be to you ?

[kretch]

So what you are saying in legalese Tom is that...

The contents of the bag (assuming they fit) isnt the issue but does the modern model allow for the fact that this was a backpack specifically constructed for Laptop computers which vary in price.

Is anything within the bag covered and what determines "reasonable", what may be reasonable to me may not be to you ?

←

What I take away from the opinion, at least on first and second pass, is this: a bailee (the restaurant) can't say "we were only taking possession of the property of which we had knowledge; we can't be held accountable for the property that may have been inside that property." The court seems to be saying that anything that could reasonably be expected to be in the bag, the bailee is responsible for. And certainly, I think we'd all agree, a laptop is as reasonably expected by any sensible person to be inside a specially constructed backpack (Crumpler, Targus, etc) than 10K+ in diamonds and pearls are expected to be sitting in the bottom of someone's clutch.

As far as your question about what determines reasonable - that's a whole issue upon itself. I'll save that for lunch.

Edited April 17, 2007 by kretch (log)