THE LIABILITY OF HOTELS AND RESTAURANTS IN NEW YORK STATE FOR LOST OR STOLEN OVERCOATS : UPDATED
REVISION NUMBER 1
SEPTEMBER 20, 2000
By Judge Thomas A. Dickerson[1]
Ever lose your overcoat or fur coat at an elegant hotel restaurant? Most disconcerting, indeed, especially after paying for an expensive meal. What is the liability, if any, of a hotel restaurant for your loss?
Of Restaurants And Overcoats
For over 100 years consumers have been eating out at restaurants, paying for their meals and on occasion leaving without their simple cloth overcoats [ Montgomery v. Ladjing[2] ], mink coats [ Gardner v. Roosevelt Hotel, Inc.[3] ], mink jackets [ Aldrich v. Waldorf Astoria Hotels, Inc.[4] ], racoon coats [ Forte v. Westchester Hills Golf Club, Inc.[5] ], Russian sable fur coats [ Weinberg v. D-M Restaurant Corp.[6] ], leather coats [ Conboy v. Studio 54, Inc.[7] ] and cashmere coats [ Augustine v. Marriott Hotel[8] , DiMarzo v. Terrace View Restaurant[9] ].
The Proximity Of The Overcoat
Liability for loss is often premised upon the proximity of the coat to the patron, i.e., the closer the overcoat is to the coatroom the greater the liability of the restaurant for its loss. If, for example, the patron chooses to hang his coat on a hook within a few feet of his seat then liability rarely attaches to the restaurant for its loss [Wentworth v. Riggs[10] , Apfel v. Whyte's, Inc.[11], Wielar v. Silver Standard, Inc.[12], Augustine v. Marriott Hotel [13] ]. However, in Bradner v. Muller[14] an innkeeper was found liable for a lost coat when a guest, in the presence of a hotel employee, placed his coat on a row of hooks behind the office desk. A history of thefts may impose a duty upon the restaurant to " warn patrons of the risk in hanging their coats( on hooks ) unattended " [Schaeffer v. Grausmall Restaurant Corp.[15]].
Once possession is relinquished, the overcoat being placed in a coatroom, then liability attaches more readily to the restaurant for its loss [ Gardner v. Roosevelt Hotel, Inc.[16], Conboy v. Studio 54, Inc.[17], Forte v. Westchester Hills GolfClub, Inc. [18], Aldrich v. Waldorf Astoria Hotels, Inc.[19]]. This is also true for doctors when a patient loses a coat [ Laval v. Leopold [20]
( "...maintenance of the closet in ( psychiatrist's ) office created an implied invitation ( for patients to deposit their coats there )" ],for restaurants that store a patron's photographic equipment in a computer room [ Nierenberg v. Wusteria, Inc.[21] ( restaurant liable for $48,179 worth of stolen equipment and transparencies )] and for Russian and Turkish bath houses which encourage patrons to disrobe [ Bird v. Everard[22]
( " The assignment of the room for the purpose of disrobing was, in effect, a representation by ( bath house owner ) that he would assume the custody of ( patron's ) apparel at that place " ) ].
Warning Signs
A restaurant's liability may depend upon the posting of signs disclaiming responsibility for lost coats [ Klar, v. H & M Parcel Room, Inc.[23] ( no proof of conspicuous signs ); Wielar v. Silver Standard, Inc.[24] ( two conspicuous signs (" Not responsible for personal property unless checked", "Watch your overcoat, we are not responsible "); Conboy v. Studio 54, Inc.[25] ( failure to prove posting of conspicuous sign ); Gardner v. Roosevelt Hotel, Inc.[26] ( failure to post sign ); Aldrich v. Waldorf Astoria Hotels, Inc.[27] ( failure to post conspicuous sign )].
Bailment Theory
When a patron is invited by a waiter to remove his or her overcoat and have it placed in the defendant's coatroom then a bailment relationship is created [ Pattison v. Hammerstein[28]
( " There was no invitation to the plaintiff...that (he) should yield his personal vigilance even for a moment..." );Bradner v. Mullen[29]
( " While the ( innkeeper ) created the situation that required care, he made no provision for it by furnishing a safe place to deposit or leave the garments or overcoats of the guests, or notifying the guest to look out for the coat himself " )].From an evidentiary standpoint a bailment relationship shifts the burden of proof in a trial to the restaurant to explain the loss [ Bailments, 9 N.Y. Jur. 2d, Sections 28-30, 145-149; Gardner v. Roosevelt Hotel, Inc.[30] , Aldrich v. Waldorf Astoria Hotels, Inc.[31] , Forte v. Westchester Hills Golf Club, Inc.[32] ]. The restaurant has the burden to " (come) forward with evidence tending to show due care " [ Conboy v. Studio 54, Inc.[33] ]. If the restaurant fails to explain the loss and fails to explain what if anything it did to safeguard the patron's overcoat, then it will be found liable for its loss as a bailee [ DiMarzo v. Terrace View Restaurant[34]
( " Once the existence of a bailment is established, along with the failure to redeliver the property, a presumption arises that the bailee has converted the item bailed or negligently caused its loss. The bailee then has the burden of coming forth with proof in explanation of the loss...In the case at bar, however, defendant's explanation only serves to reinforce its liability " )].
Negligence Theory
By inviting a patron to surrender possession of his or her overcoat the restaurant assumes a duty to take appropriate measures to safeguard it [ Appleton v. Welch[35] ( waiter takes patron's coat;
" Guests invited to sit and eat at tables must be expected to remove and lay aside their hats and wraps, and the[ restaurant proprietor ] was bound to provide a reasonably safe place for them " );Bradner v. Mullen[36]
( " ( the innkeeper ) owed a duty to the ( guest ) to see that the articles of wearing apparel which were hung up in the place he had provided for them were protected from loss. It does not appear that he gave the guests any notice that they would place their garments there at their own peril " );Bird v. Everard[37]
( " The assignment of the room ( in a bath house ) for the purpose of disrobing was, in effect, a representation by ( bath house owner ) that he would assume the custody of ( patron's ) apparel at that place. Having received the sum demanded...for the privilege of the bath, and assumed the custody of ( patron's ) apparel...( bath house owner ) became a voluntary custodian of ( patron's ) apparel for profit, and was bound to exercise due care to guard against loss or theft by others " ) ].
If the restaurant provides no coatroom attendants to hand out checks or monitor the removal of coats [ Forte v. Westchester Hills Golf Club, Inc.[38] ( failure to provide coatroom attendants and other safeguards )] then it may be found grossly negligent[ Kim v. U.S. Air, Inc.[39]
( " air carrier clearly omitted to perform a duty...when it failed to have the claim checks inspected at the exit point to the their baggage area " )]and liable for the patron's loss.
Statutory Disclaimers
Most States have statutes which seek to protect hotels and restaurants from excessive liability for lost clothing removed from checkrooms[40] . Since these statutes are in derogation of the common law they are strictly construed. Such a statute, i.e., New York's General Business Law Section 201, allows the restaurant to limit liability to $200 or less if it has a checkroom staffed by attendants, charges no fee and distributes coatroom checks to patrons upon delivery of their overcoats. A failure to comply with these requirements prevents the restaurant from relying upon the statute [ DiMarzo v. Terrace View Restaurant[41]
( " ( restaurant's ) policy is not to issue any claim checks to patrons who entrust their overcoats to the apparent safety of its coatroom...it can not avail itself of the liability limitations..." )].
The Recoverable Damages
Generally, the value of a lost overcoat is the " fair market value of the property at such time, with interest thereon "[ DiMarzo v. Terrace View Restaurant[42]]. However, some courts have been willing to award the patron the overcoat's " real value " or damages equal to its actual replacement cost [ Conboy v. Studio 54, Inc.[43]
( " real value ( of lost leather overcoat ) may be measured by the price paid ( $1,350 ) when new for the lost or damaged goods " );Forte v. Westchester Hills Golf Club, Inc.[44] ( $1,132.92 for lost racoon overcoat )].
FOOTNOTES
[1] Thomas A. Dickerson is Westchester County Court Judge with a web site at http://members.aol.com/judgetad/index.html. Judge Dickerson is the author of Travel Law, Law Journal Press, New York, 1981-2000, updated biannually, web site at http://members.aol.com/travellaw/index.html ; Class Actions: The Law of 50 States, Law Journal Press, New York, 1988-2000, updated annually, web site at http://members.aol.com/class50/index.html and over 170 articles and papers on consumer law issues many of which are available at http://courts.state.ny.us/tandv.html.
[2] Montgomery v. Ladjing, 30 Misc. 92, 61 N.Y.S. 840 ( 1899 ).
[3] Gardner v. Roosevelt Hotel, Inc., 263 App. Div. 268, 32 N.Y.S. 2d 208 ( 1942 ).
[4] Aldrich v. Waldorf Astoria Hotels, Inc., 263 App. Div. 268, 32 N.Y.S. 2d 208 ( 1942 ).
[5] Forte v. Westchester Hills Golf Club, Inc., 103 Misc. 2d 621, 426 N.Y.S. 2d 390 ( 1980 ).
[6] Weinberg v. D-M Restaurant Corp., 53 N.Y. 2d 499, 442 N.Y.S. 2d 965, 426 N.E. 2d 459 ( 1981 ).
[7] Conboy v. Studio 54, Inc., 113 Misc. 2d 403, 449 N.Y.S. 2d 391 ( 1982 ).
[8] Augustine v. Marriott Hotel, 132 Misc. 2d 180, 503 N.Y.S. 2d 498 ( 1986 ).
[9] DiMarzo v. Terrace View, New York Law Journal, June 9, 1997 ( Yks. Cty. Ct. ), mod'd N.Y. App. Term., October 27, 1998, ( remanded on the issue of damages ).
[10] Wentworth v. Riggs, 159 App. Div. 899, 142 N.Y.S. 2d 955 ( 1913 ).
[11] Apfel v. Whyte's, Inc., 110 Misc. 670, 180 N.Y.S. 2d 712 ( 1920 )
[12] Wielar v. Silver Standard, Inc., 262 App. Div. 521, 33 N.Y.S. 2d 617 ( 1942 ).
[13] Augustine v. Marriott Hotel, 132 Misc. 2d 180, 503 N.Y.S. 2d 498 ( 1986 ).
[14] Bradner v. Mullen, 27 Misc. 479, 59 N.Y.S. 178 ( 1899 ).
[15] Schaeffer v. Grausmall Restaurant Corp.,196 A.D. 2d 692, 601 N.Y.S. 2d 611 ( 1993).
[16] Gardner v. Roosevelt Hotel, Inc., 263 App. Div. 268, 32 N.Y.S. 2d 208 ( 1942 ).
[17] Conboy v. Studio 54, Inc., 113 Misc. 2d 403, 449 N.Y.S. 2d 391 ( 1982 ).
[18] Forte v. Westchester Hills Golf Club, Inc., 103 Misc. 2d 621, 426 N.Y.S. 2d 390 ( 1980).
[19] Aldrich v. Waldorf Astoria Hotels, Inc., 71 Misc. 2d 413, 343 N.Y.S. 2d 830 ( 1973 ).
[20] Laval v. Leopold, 47 Misc. 2d 624, 262 N.Y.S. 2d 820, 821 ( 1965 ).
[21] Nierenberg v. Wusteria, Inc., 189 A.D. 2d 571, 592 N.Y.S. 2d 27, 28 ( 1993 ).
[22] Bird v. Everard, 4 Misc. 104, 23 N.Y.S. 1008 ( 1893 ).
[23] Klar v. H & M Parcel Room, Inc., 270 App. Div. 538, 61 N.Y.S. 2d 285, 289 ( 1946 ).
[24] Wielar v. Silver Standard, Inc. 262 App. Div. 521, 33 N.Y.S. 2d 617 ( 1942 ).
[25] Conboy v. Studio 54, Inc. 113 Misc. 2d 403, 449 N.Y.S. 2d 391 ( 1982 ).
[26] Gardner v. Roosevelt Hotel, Inc., 263 App. Div. 268, 32 N.Y.S. 2d 208 ( 1942 ).
[27] Aldrich v. Waldorf Astoria Hotels, Inc., 71 Misc. 2d 413, 343 N.Y.S. 2d 830 ( 1973 ).
[28] Pattison v. Hammerstein, 17 Misc. Rep. 375, 39 N.Y. Supp. 1039 ( 1896 ).
[29] Bradner v. Mullen, 27 Misc. 479, 59 N.Y.S. 178 ( 1899 ).
[30] Gardner v. Roosevelt Hotel, Inc., 263 App. Div. 268, 32 N.Y.S. 2d 208 ( 1942 ).
[31] Aldrich v. Waldorf Astoria Hotels, Inc., 71 Misc. 2d 413, 343 N.Y.S. 2d 830 ( 1973 ).
[32] Forte v. Westchester Hills Golf Club, Inc., 103 Misc. 2d 621, 426 N.Y.S. 2d 390 ( 1980).
[33] Conboy v. Studio 54, Inc., 113 Misc. 2d 403, 449 N.Y.S. 2d 391 ( 1982 ).
[34] DiMarzo v. Terrace View Restaurant, Index No: 98-134 WC, N.Y. App. Div., October 27, 1998.
[35]Appleton v. Welch</em>, 20 Misc. 343, 45 N.Y.S. 751 ( 1887 ).
[36] Bradner v. Mullen, 27 Misc. 479, 59 N.Y.S. 178 ( 1899 ).
[37] Bird v. Everard, 4 Misc. 104, 23 N.Y.S. 1008 ( 1893 ).
[38] Forte v. Westchester Hills Golf Club, Inc., 103 Misc. 2d 621, 426 N.Y.S. 2d 390 ( 1980).
[39] Kim v. U.S. Air, Inc., 655 N.Y.S. 2d 253 ( N.Y. Sup. 1996 ).
[40] Dickerson, Travel Law, Law Journal Press, New York, 1981-2000 at § 4.04[3][c].
[41] DiMarzo v. Terrace View Restaurant, New York Law Journal, June 9, 1997 ( Yks. Cty. Ct. ), mod'd N.Y. App. Term., October 27, 1998, remanded on the issue of damages ).
[42] DiMarzo v. Terrace View Restaurant, Index No: 98-134 WC, N.Y. App. Div., October 27, 1998.
[43] Conboy v. Studio 54, Inc., 113 Misc. 2d 403, 449 N.Y.S. 2d 391 ( 1982 ).
[44] Forte v. Westchester Hills Golf Club, Inc., 103 Misc. 2d 621, 426 N.Y.S. 2d 390 ( 1980).