United States District Court, D. Montana, Missoula Division
OPINION AND ORDER
W. MOLLOY, DISTRICT JUDGE
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)).
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.)
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.
Bailment (Doc. 15)
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.
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.
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." 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.
Property Loss (Doc. 21)
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.
Liability (Doc. 25)
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.
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.