Full question:
We hired a reccomended mover when we moved 15 miles to a new home. During the move a number of items disappeared and a $10,000 work of art was badly damaged. We told the mover we were only going to pay $1,000.00 of the $3,500.00 bill until we sorted this all out, 2 days later we were summoned to small claims court and we responded with a counter suit. When I interviewed the owner he assured me that he was bonded and insured, and I was not offered a contract nor did I ask for one. Apparently on the back of the contract, all the 'small' print explained many things.
- Category: Contracts
- Date:
- State: South Carolina
Answer:
The types of evidence required to prove a claim will depend on all the facts and circumstances involved. Typically, in establishing a claim for property damage, negligence must be established. Evidence may be used to establish the standard of care that applies and how that standard was breached. For example, testimony of an art dealer or another mover may be used to detail the types of measures appropriate to packing and transportation of art work. An established pattern of complaints, such as through the Better Business Bureau, may be applicable. In a contract dispute, all evidence relating to the agreement may be useful, such as a copy of the contract, any memos, letters, or emails between the parties, as well as oral testimony of the parties and winesses, may be allowed as evidence.
To claim damages, evidence may be presented to establish the value of the property. Such evidence may include, among others, before and after pictures, appraisals, purchase receipts, and expert testimony. The damaged item, along with any packing materials, may also be presented to establish negligence.
I suggest contacting the clerk of courts to inquire about applicable discovery rules. Discovery procedures are often be used to submit written questions to the opposing party, request production of documents and other items, or compel testimony upon oral examination.
When a person who is not a landlord agrees to hold property for another, a bailment is created. When the person holding the property, called the bailee, is not being compensated, it is called a gratutous bailment and the bailee must use reasonable care to protect the property.
There are different types of bailments- "bailments for hire" in which the custodian (bailee) is paid, "constructive bailment" when the circumstances create an obligation upon the custodian to protect the goods, and "gratuitous bailment" in which there is no payment, but the bailee is still responsible. There is a lower standard of care imposed upon the bailee in a gratuitous bailment, and the parties may contract to hold the bailee free from liability in any bailment. As the law of bailments establishes a lower standard of care for the bailee in a gratuitous bailment agreement, such an agreement or receipt should indicate explicitly that the bailee is acting without compensation. When a bailment is for the exclusive benefit of the bailee, the bailee owes a duty of extraordinary care. If the bailment is for the mutual benefit of the bailee and bailor, the bailee owes a duty of ordinary care. A gratuitous bailee must use only slight care and is liable only for gross negligence. To create a bailment, the alleged bailee must have actual physical control with the intent to possess. Physical control and intent to possess will be interpreted according to the expectations of the parties. If a court thinks that liability would be unexpected or unfair, it can usually find that the defendant did not have “physical control” or “intent to possess.” For example, courts are more likely to find a bailment of a car exists in a garage with an attendant than in a park and lock garage.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
