The case McPherson v. Belnap, 830 P.2d 302, 304-05 (Utah Ct. App. 1992), discusses bailments as follows:
- “The creation of a bailment requires that possession and control over an object pass from the bailor to the bailee.” 1420 Park Rd. Parking, Inc. v. Consolidated Mut. Ins. Co., 168 A.2d 900, 901 (D.C.1961); see Christensen v. Hoover, 643 P.2d 525, 529 (Colo.1982); Marsh v. American Locker Co., 7 N.J.Super. 81, 72 A.2d 343, 344 (1950); Dundas v. Lincoln County, 48 Or.App. 1025, 618 P.2d 978, 982 (1980). The bailor must actually or constructively deliver the property to the bailee in such a way as to entitle the bailee to exclude others from possession during the bailment period, including the owner/bailor. Broaddus v. Commercial Nat'l Bank, 113 Okla. 10, 237 P. 583, 584 (1925). Usually, the factor determining whether the transaction is a bailment is whether the bailor surrenders possession and control over the property to the owner of the premises where the property is placed. Weddington v. Stolkin, 122 Ind.App. 670, 106 N.E.2d 239, 241 (1952); accord Dundas, 618 P.2d at 984. Therefore, the test has been described as
- whether or not the person leaving the property has made such a delivery as to amount to a relinquishment, for the duration of the relation, of his exclusive possession, control, and dominion over the property, so that the person upon whose premises it is left can exclude, within the limits of the agreement, the possession of all others. If he has, the general rule is that the transaction is a bailment. On the other hand, if there is no such delivery and relinquishment of exclusive possession, and his control and dominion over the goods is dependent in no degree upon the co-operation of the owner of the premises, and his access thereto is in no wise subject to the latter's control, it is generally held that he is a tenant or lessee of the space upon the premises where the goods are left.
This does not mean that to be a bailment, the bailee must be the only one who has access to the property. The bailee may allow others to access the property without destroying the bailment. The requirement is only that the bailee have the right to exclude all persons not covered by the agreement and to control the property. See e.g., Christensen, 643 P.2d at 529 (mover); Wright v. Autohaus Fortense, Inc., 129 Ill.App.3d 422, 84 Ill.Dec. 633, 635, 472 N.E.2d 593, 595 (1984) (employees and tow truck driver); Romney v. Covey Garage, 100 Utah 167, 111 P.2d 545, 545-46 (1941) (employees).
McPherson v. Belnap, 830 P.2d 302, 306 (Utah Ct. App. 1992) further states:
- When the bailment is for the mutual benefit of the bailor and the bailee, and the property cannot be accounted for, “a presumption of negligence is imposed on the bailee once the bailor proves the fact of bailment and damage to [or absence of] the bailed goods. The bailee must then come forward with evidence that the loss or damage was not due to the bailee's negligence.” Staheli v. Farmers' Coop., 655 P.2d 680, 682 (Utah 1982); accord Romney, 111 P.2d at 546. The reason for the presumption is the bailee, as the party in possession of the property, “is in a better position to control the conditions that may cause loss or damage and to know, or at least to be able to ascertain, the cause of any actual loss or damage.” Staheli, 655 P.2d at 683; accord Sumsion v. Streator-Smith, Inc., 103 Utah 44, 132 P.2d 680, 687 (1943). Therefore, for the presumption to apply, the bailee must be in exclusive possession of the property. Staheli, 655 P.2d at 683.
- The general rule of law is that where goods bailed for a fee are damaged or destroyed a presumption of negligence is imposed on the bailee once the bailor proves the fact of bailment and damage to the bailed goods. The bailee must then come forward with evidence that the loss or damage was not due to the bailee's negligence.