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Childress v. Costco Wholesale Corp.

United States District Court, D. Montana, Missoula Division

April 2, 2019

RANDALL CHILDRESS and CLAUDIA CHILDRESS, Plaintiffs,
v.
COSTCO WHOLESALE CORPORATION, Defendant.

          OPINION AND ORDER

          DONALD W. MOLLOY, DISTRICT JUDGE

         On September 23, 2016, Randall and Claudia Childress gave their car keys to an employee in the Tire Center of Defendant Costco Wholesale Corporation to get their tires rotated. (Doc. 12 at ¶ 3(d).) Their keys were then given to another individual who drove away in their car. (Id.) They sued Costco, alleging negligence (Counts 1, 4), bailment (Count 2), and negligent infliction of emotional distress (Count 3). (See Doc. 13.) Ten motions are pending. The Childresses seek summary judgment on their bailment claim, (Doc. 15), and on the amount of their property loss, (Doc. 21). Costco seeks summary judgment on liability, (Doc. 25); punitive damages, (Doc. 27); attorneys' fees, (Doc. 29); and emotional distress, (Doc. 31). The parties also each filed motions in limine. (See Doc. 44 (Childresses)), (Docs. 35, 37, and 39 (Costco)).

         Factual Background[1]

         According to Costco, its employee gave the Childresses' keys to an individual who represented himself as the Childresses' son and said that his parents were trying to get on the road back to Idaho. (Doc. 33 at ¶ 2.) The Childresses later found their vehicle at a truck stop approximately five miles away. (Id.) The police determined that the vehicle was stolen and arrested two individuals for the theft. (Doc. 33 at ¶ 12; Doc. 51 at ¶¶ 11, 13, 23.) After the incident, Costco prepared an "Incident Report," which states that its employee caused the "damage." (Doc. 51 at ¶ 30; Doc. 51-4.) At the time, Costco told the Childresses to account for everything in the vehicle and keep track of their expenses so that Costco could reimburse them. (Doc. 51 at ¶ 31; Doc. 51 -5 at 3.) After the vehicle was recovered, Costco paid for a rental car, for the Childresses' car to be detailed, and for a two-way radio stolen out of the car. (Doc. 51 at ¶ 3.) The Childresses claimed that they were afraid to return home so they spent the next five days traveling between Idaho and Eastern Washington before returning home to Pritchard, Idaho. (Id. at ¶ 4.) After their trip, the Childresses submitted a demand to Costco for approximately $4, 195.48 (beyond what had already been paid) for re-keying their car/trailer/home, items stolen from the vehicle, as well as gas, food, and lodging for their five-day trip. (Id. at ¶ 5.) Costco negotiated with the Childresses and sent them a release after they agreed on a figure of $3, 480.00. (Id. at ¶ 6.) The Childresses took the release to an attorney for review and responded with an increased demand of $4, 280.00. (Id.)

         Analysis

         I. Summary Judgment

         A party is entitled to summary judgment if it can demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 251 (1986). Only disputes over facts that might affect the outcome of the lawsuit will preclude summary judgment. Id. at 248. Both the Childresses' bailment, (Doc. 15), and its property loss, (Doc. 21), motions are denied. Costco's motion for summary judgment on attorneys' fees, (Doc. 29), is granted. Its motions regarding liability, (Doc. 25), punitive damages, (Doc. 27), and emotional distress, (Doc. 31), are denied.

         A. Bailment (Doc. 15)

         The Childresses seek summary judgment on the liability portion of their bailment claim on the ground that Costco has not disclosed an expert opinion so cannot show it met the standard of care. The motion is denied.

         The law of bailment generally requires a party to return in proper condition personal property that was "deposited" with them, or to pay for any damages resulting from wrongful use. See Mont. Code Ann. §§ 70-6-201 to 214. Under Montana law, "when goods are placed in the hands of a bailee in good condition and are returned in a damaged state or not at all, in an action by the bailor against the bailee, the law will presume negligence on the part of the latter and imposes upon him the burden of showing that he exercised such care as was required by the nature of the bailment." Aetna Life & Cas. Co. v. Stan-Craft Corp., 499 P.2d 776, 778 (Mont. 1972). Thus, because the underlying bailment is undisputed here, (see Doc. 12 at ¶ 3(d); Doc. 24 at 1-2), Costco's negligence is presumed unless it can show that it exercised the care required, see Aetna Life, 499 P.2d at 778.

         The Childresses insist that Costco cannot rebut the presumption because expert testimony is required to establish the applicable standard. In Montana, "expert testimony is required when the issue presented is sufficiently beyond the common experience of the trier of fact and the expert testimony will assist the trier of fact in determining the issues or understanding the evidence."[2] Dayberry v. City of E. Helena, 80 P.3d 1218, 1220-21 (Mont. 2003). Because "the exchange of keys at a tire shop," (Doc. 24 at 8), does not involve overly technical, scientific, or specialized knowledge, Costco is not required to establish the applicable standard of care through expert testimony. The motion is denied.

         B. Property Loss (Doc. 21)

         The Childresses also seek summary judgment on the amount of their personal property loss, which they allege is $3, 478.54. (Doc. 22 at 1.) Because Costco maintains that both liability and damages remain in dispute-raising issues of causation, and mitigation, (see Doc. 54; Doc. 22 at 8)-the motion is denied.

         C. Liability (Doc. 25)

         Costco seeks summary judgment on the grounds that an intervening criminal act severed the chain of liability. It is undisputed that a criminal actor stole the Childresses' vehicle. (See Doc. 26-1 (police case report).) But an intervening act only severs liability if it is unforeseeable. Estate of Strever v. Cline, 924 P.2d 666, 672 (Mont. 1996). Further, "a cause of action involving superseding intervening acts, whether criminal or non-criminal, normally involves questions of fact which are more properly left to the finder of fact for resolution." Id. at 673-74. "If, under the facts of a given case, an intervening criminal act is one which the defendant might reasonably foresee, then there is no reason why the fact finder should not decide causation the same as with any other intervening causation case." Id. at 674.

         Here, the car thief allegedly represented himself as the Childresses' son and a Costco employee gave him the keys to the car. Construing the facts in favor of the Childresses, a jury could conclude it was reasonably foreseeable that Costco could give the keys to the wrong person. (Doc. 51 at ¶ 25 ("A member should be required to show the claiming copy of the Tire Center Invoice or their driver's license to claim their vehicle."); id. at ¶ 32; Doc. 51-1 (Manual Excerpt).) Accordingly, summary judgment is denied.

         D. Punitive ...


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