On certification to the Essex County District Court.
For affirmance -- Chief Justice Wilentz, and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- None. The opinion of the Court was delivered by Pollock, J.
The primary issue in this case is whether the operator of an enclosed park and lock garage is liable for theft of property from and damage to a car parked in the garage. A further issue is whether under these circumstances proof of damage or loss creates a presumption of negligence.
Plaintiffs, McGlynn and Backer, parked their cars in the Military Park Garage operated by the defendant, Parking Authority. While the cars were parked, vandals damaged the cars and stole property from them. Both McGlynn and Backer recovered judgments in the Essex County District Court, and the Authority appealed. We granted direct certification of both appeals. 84 N.J. 412-413 (1980). We affirm both judgments.
Military Park Garage is a cavernous underground parking facility in the center of Newark. The garage has three levels of underground parking with several entrances for cars and additional entrances and exits for pedestrians. On entering, a driver receives a printed ticket from a machine. Drivers park in any available space, lock their automobiles and retain the keys. To exit, a driver must stop the car at a toll booth, present the ticket and pay the parking fee.
The facts in both cases are similar. Both McGlynn and Backer drove their cars to the garage and received tickets from the dispensing machine. Neither McGlynn nor Backer read the tickets or knew what was printed on them. On the morning of December 7, 1977, McGlynn parked his Mercedes-Benz convertible on the second underground level, locked it and took his keys. Upon returning in the afternoon, he discovered that someone had slashed the convertible top and had stolen his portable cassette recorder together with forty cassettes. The recorder had been located in the cradle between the two front seats, and the cassettes had been stored in a plastic container located on the floor behind the front seat. In the evening of October 30,
1977, Backer parked his 1972 Datsun 240Z on the first underground level. When he returned the next morning, four hubcaps were missing and the antenna was broken. Both McGlynn and Backer reported the incidents to employees of the Authority. McGlynn was not charged for parking in the garage. Backer completed a claim form and returned it to the Authority. Both McGlynn and Backer asserted that the Authority had breached a bailment contract with them and that its negligence had caused their damage.
During his trial, McGlynn testified that he had never seen a security guard in the garage, but that he had parked in the garage because he thought it would be safe. In both cases, the only witness for the Authority was the supervisor of the garage. In McGlynn, the supervisor testified that the security procedures in effect on the day of the incident included the patrolling of three levels and stairways by garage attendants and city police, as well as the deployment of at least two attendants on each level of the garage. He conceded that there had been prior incidents of theft and vandalism. In Backer, the supervisor had not been in the garage while Backer's car was parked. Nonetheless, he testified that during the period when Backer's car was parked there would have been one or two attendants on duty and Newark Police would have been patrolling the garage.
In both cases, the Authority attempted to introduce into evidence the limitation of liability clause allegedly found on the tickets. The trial judge would not allow the tickets to be introduced because the Authority had not pleaded limitation of liability as an affirmative defense.
In McGlynn, the trial judge found that a bailment existed and instructed the jury that upon proof of damage, a presumption of negligence arose. The jury returned a verdict of $1,050.
In Backer, the same judge, sitting without a jury, found again that a bailment existed and that a presumption of negligence arose upon proof of damage. The court determined that the presumption ...