COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73393 MILDRED ABERCROMBIE : ACCELERATED DOCKET : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION BP PROCARE : : PER CURIAM Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION APRIL 9, 1998 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-312200 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: ALBERT FOWERBAUGH (#0001535) 418 National City Bank Bldg. Cleveland, Ohio 44114 For Defendant-Appellee: JOSEPH DATTILO (#0010398) 1100 BP Tower 200 Public Square Cleveland, Ohio 44114-2302 MARK VALPONI (#009527) ANDREW AGATI (#0065351) KELLEY McCANN & LIVINGSTONE 3500 BP Tower 200 Public Square Cleveland, Ohio 44114 PER CURIAM: Plaintiff-appellant Mildred Abercrombie ( appellant ) appeals from the judgment of the trial court in favor of defendant-appellee -2- BP Procare ( BP ) in a bailment action. Appellant assigns the following error for review: I. WHETHER THE COURT ERRED IN FINDING THE DEFENDANT-APPELLEE EXERCISED REASONABLE CARE AS BAILEE IN PROTECTING THE BAILED PROPERTY OF THE PLAINTIFF-APPELLANT. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On December 27, 1995, appellant brought her 1989 Chevrolet Astro Minivan in for repair at BP. Later that day, BP telephoned appellant to inform her that the repairs had been made and that the automobile was ready to be retrieved. Appellant told BP that she could not pick up the minivan that day but would be there the next day. Appellant gave BP no special instructions as to how the van was to be secured nor did BP ask if appellant had any instructions. As was its normal practice, BP parked the vehicle in a parking lot adjacent to the BP Procare facility. The minivan was locked and the keys were secured inside BP. The unfenced lot was well lit and visible from the adjacent street. No vehicle left in the parking lot by BP had ever been vandalized or stolen. On December 28, 1995, appellant arrived at BP and paid her bill. She was given the keys to the minivan and told that the vehicle was parked in the lot. Appellant discovered that the minivan was missing with only broken glass on the ground where the vehicle had been parked. The minivan was stolen sometime during the night. Appellant did not have the vehicle insured for theft. On July 23, 1996, appellant filed a complaint against BP for -3- the value of the minivan. Both appellant and BP filed motions for summary judgment which were denied by the trial court. The case was tried to the bench with the facts being stipulated to by the parties. No additional evidence was presented by either side at trial. The trial court returned a verdict for the defense, finding that BP did exercise ordinary care by leaving appellant's locked vehicle in the well lit parking lot and securing the keys in the office. The trial court noted that no prior incidents of either theft or vandalism had occurred to any vehicles stored by BP in the same manner. Appellant has appealed from that ruling. II. In her assignment of error, appellant contends the trial court erred in finding that BP exercised ordinary care in its method of securing appellant's car for the night. Appellant argues that BP was required by law to more than just lock her vehicle when leaving it in an unattended, open parking lot which was visible from the street. Appellant maintains that the trial court placed undue weight on the fact that there had been no previous thefts from the parking lot and that BP should not be afforded one theft before liability may be imposed. A reviewing court will not reverse the judgment of a trial court as being against the weight of the evidence where there is competent, credible evidence to support the judgment. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279. A verdict will be reversed as against the weight of the evidence only when the verdict is so manifestly contrary to the natural and reasonable -4- inferences to be drawn from the evidence as to produce a result in complete violation of substantial justice***. Royer v. Bd. of Edn. (1977), 51 Ohio App.2d 17, 20. The law applicable to a bailment action is set forth in the syllabus of David v. Lose (1966), 7 Ohio St.2d 97: 1. In order to establish a prima facie case against a bailee in an action sounding in contract, a bailor need prove only (1) the contract of bailment, (2) delivery of the bailed property to the bailee and (3) failure of the bailee to redeliver the bailed property undamaged at the termination of the bailment. 2. In an action by a bailor against a bailee based upon a breach of the contract of bailment, where the bailor proves delivery of the bailed property and the failure of the bailee to redeliver upon legal demand therefor, a prima facie case of want of due care is thereby established, and the burden of going forward with the evidence shifts to the bailee to explain his failure to redeliver. Once the bailor establishes that the bailee failed to redeliver the bailed property, an inference of negligence by the bailee may be drawn. Collins v. Click Camera & Video, Inc. (1993), 86 Ohio App.3d 826. The bailee may escape liability by asserting an affirmative defense. A bailee will not be held liable if the bailed property was lost without fault or want of care on the part of the bailee. David, supra at 99-100. BP has raised the defense that it did all that was required of it under a bailment contract. A bailee is required to exercise ordinary care in safeguarding the bailed property. Ordinary care is that degree of care which an ordinarily prudent person would exercise in caring for their own -5- property under like circumstances. Aetna Casualty & Surety Co. v. Woody Sander Ford (1969), 21 Ohio App.2d 62. The burden of proving BP's negligence remained with appellant even though BP had the burden of going forward with evidence explaining its failure to redeliver the bailed property. Tomas v. Nationwide Mut. Ins. Co. (1992), 79 Ohio App.3d 624. Regardless of which party produces the evidence, the preponderance of the evidence must support the conclusion that the bailee was guilty of negligence or want of due care in order for the bailor to prevail. Midwestern Indemn. Co. v. Winkhaus (1987), 42 Ohio App.3d 235. In Schecter v. Terescavage (May 13, 1993), Cuyahoga App. No. 62307, unreported, this court upheld the trial court's judgment finding that an automotive repair shop exercised ordinary care by parking a customer's automobile outside in a parking lot. The vehicle was destroyed by a fire set by unknown parties. No previous incidents of damage to vehicles had occurred and no other automobiles were touched that night. In the instant case, the parties do not dispute the facts but only whether the measures taken by BP to safeguard the bailed property amounted to ordinary care. The facts are similar to those in Schecter.In both, a vehicle was left outside of a repair shop and there had never been any previous incidents of vandalism. BP left the bailed property in an unsecured lot which was visible from the street and well lit. The vehicle was locked and the keys secured. The measures taken by BP to safeguard the bailed property were sufficient to meet the standard of ordinary care. -6- The preponderance of the evidence does not support the conclusion that appellant met her burden in proving BP was negligent or did not meet its burden of care. The trial court's decision in favor of BP was not against the manifest weight of the evidence. Appellant's assignment of error is overruled. Judgment affirmed. -7- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, ADM. JUDGE LEO M. SPELLACY, JUDGE KENNETH A. ROCCO, JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .