Chandelier Damage - Responsible Party & Next Steps

[Syd Spain]

What is the name of your state? Georgia

My wife and I sold our home last year, but kept a chandelier which last sold for $10,000 in 1992. She had a verbal agreement with a new antique store to sell it, and they would keep an agreed upon commission. There was no contract. The chandelier was delivered to the store. They mounted it and had it displayed for about six months. It fell from the ceiling, broke many crystals including a main crystal vase. They did not notify us, and my wife learned of the accident about one week later. The owner contacted her insurance company, but their policy will not cover damaged merchandise not owned by the store. We have made numerous contacts with them to seek a settlement agreement or resoration of the chandelier. They have not contacted us during the intervening three months, and in conversations they contend that this is like a consignment, and we are resonsible for items on consignment in their store. They also claim that the board which they mounted it on was old and was installed by a previous building owner. We prefer not to sue, but feel they are shirking responsibility and liability. If necessary, we will consider small claims court. What are our best steps? We are giving them a few days to have the damages appraised, then we are taking possession for an appraisal.What is the name of your state?

[Silverplum]

Verbal agreements are worth about as much as the paper upon which they were not written. So far as I know, you've got nothin'.

Originally Posted by Syd Spain

What is the name of your state? Georgia

My wife and I sold our home last year, but kept a chandelier which last sold for $10,000 in 1992. She had a verbal agreement with a new antique store to sell it, and they would keep an agreed upon commission. There was no contract. The chandelier was delivered to the store. They mounted it and had it displayed for about six months. It fell from the ceiling, broke many crystals including a main crystal vase. They did not notify us, and my wife learned of the accident about one week later. The owner contacted her insurance company, but their policy will not cover damaged merchandise not owned by the store. We have made numerous contacts with them to seek a settlement agreement or resoration of the chandelier. They have not contacted us during the intervening three months, and in conversations they contend that this is like a consignment, and we are resonsible for items on consignment in their store. They also claim that the board which they mounted it on was old and was installed by a previous building owner. We prefer not to sue, but feel they are shirking responsibility and liability. If necessary, we will consider small claims court. What are our best steps? We are giving them a few days to have the damages appraised, then we are taking possession for an appraisal.What is the name of your state?

[BelizeBreeze]

You may prefer not to sue, but it looks like you will have to do just that. What you have is a bailment. The owners of the store took the items (for whatever reason) and even went so far as to install the item to show it in it's (pardon the pun) best light.

You may not get as much as you want, but the bailment creates upon the bailee a duty of ordinary care and in this case, that would require that before mounting the item for display, they insure the mount will hold the weight.

[Silverplum]

Listen to Belize Breeze. He's an attorney, I am not.

[BelizeBreeze]

Originally Posted by Silverplum

Listen to Belize Breeze. He's an attorney, I am not.

CORRECTION: he is a law school graduate from GWU. He's too damn smart (and makes too much money) to every practice law.

[Silverplum]

Originally Posted by BelizeBreeze

CORRECTION: he is a law school graduate from GWU. He's too damn smart (and makes too much money) to every practice law.

Damn, but you are HOT!!

[tranquility]

I agree there was a mutual bailment and the standard was ordinary care. However, I don't agree that what would be required for that level of care is clear.

The chandelier was held by the mount for six months. I bet the dealer has mounted other items in the same place previously. Why did the mount fail in this instance? Was it simply negligence by putting up hardware not designed for the weight, or was there a latent defect in the board? This question is a simple negligence one. Was the dealer negligent? Merely because something happened does not mean the store is liable.

[BelizeBreeze]

Originally Posted by tranquility

I agree there was a mutual bailment and the standard was ordinary care. However, I don't agree that what would be required for that level of care is clear.

The chandelier was held by the mount for six months. I bet the dealer has mounted other items in the same place previously. Why did the mount fail in this instance? Was it simply negligence by putting up hardware not designed for the weight, or was there a latent defect in the board? This question is a simple negligence one. Was the dealer negligent? Merely because something happened does not mean the store is liable.

all matters of fact for the court to decide.

however, certain inferences can be drawn from the post alone. One of them that the owner's presumably had the poster's contact information and failed in their duty to inform the poster of the damage for a full week. Now, whether or not that can be infered to show 'fault', the actions do tend to lend credence to the owner(s) not taking ordinary care.

Did they have something to hide? Was there more to this story other than the mount failed? The owner(s) also admitted the board on which they mounted the item was "old". Therefore, they knew, or should have reasonable known, that there could be a failure and can't now come and claim clean hands because the board was "old" without also accepting the fact beforehand.

And if they knew the board was 'old', why did they then go ahead and mount the item?

From the failure to notify alone this would be my strategy.

[tranquility]

One of them that the owner's presumably had the poster's contact information and failed in their duty to inform the poster of the damage for a full week.

What duty are you talking about? Unless it was in the contract, I don't know of any duty to notify someone their property was damaged. Certainly not in negligence (at least in this instance) as, if there was a duty and it was breached, did the breach cause damages? We know black letter law on bailment requires ordinary care and, although changing a little, the *duty* to return the property to one who created the bailment. Duty to notify? Duty to notify within a week? Must be one of those penumbra kind of duties.

Now, whether or not that can be infered to show 'fault', the actions do tend to lend credence to the owner(s) not taking ordinary care.

I'm not sure you'd even get this in. I mean, you probably could, but strictly speaking it doesn't have anything to do with the case. The relevance objection should be sustained.

Did they have something to hide? Was there more to this story other than the mount failed?

Maybe. That's what litigation is all about. It certainly changes things from an assumption they breached the level of care required.

The owner(s) also admitted the board on which they mounted the item was "old". Therefore, they knew, or should have reasonable known, that there could be a failure and can't now come and claim clean hands because the board was "old" without also accepting the fact beforehand.

Old doesn't mean bad. (Thankfully, else I'd be very bad.) My house was built in the 1930s. It holds up just fine, thank you. While the dealer has taken a position to their benefit, that does not mean they are wrong. As to the knew or should have known about the possibility of failure, what tests will you have them do? They hung the thing up in a place they've been hanging things up for a long time. The hardware, on inspection, seemed good, the board, on inspection, seemed good--shall we get an x-ray out and test all the support beams and studs? Would that be reasonable? Assuming a latent defect (which may not be the case and why discovery would be needed) how much checking would be required? I think the fact it hung without incident for six months is indicitive of them acting reasonably.

We could make the argument of res ipsa loquitur. Things hung up properly don't fall, ergo breach. This is far better than the duty to notify argument. It might very well be a winner. I certainly wouldn't bet against it. I certainly wouldn't walk away because the defendant-to-be says it wasn't his fault. I think it was his fault and he's trying to get out of it because his insurance company is giving him a hard time. I'd love to see the paperwork setting up the bailment. That may guide us as well.

[BelizeBreeze]

Originally Posted by tranquility

What duty are you talking about? Unless it was in the contract, I don't know of any duty to notify someone their property was damaged. Certainly not in negligence (at least in this instance) as, if there was a duty and it was breached, did the breach cause damages? We know black letter law on bailment requires ordinary care and, although changing a little, the *duty* to return the property to one who created the bailment. Duty to notify? Duty to notify within a week? Must be one of those penumbra kind of duties.

what a reasonable person would do.

I'm not sure you'd even get this in. I mean, you probably could, but strictly speaking it doesn't have anything to do with the case. The relevance objection should be sustained.

Of course I'd get this in.
"why did you wait a week to contact them as to the damage when you knew, or had reason to know, the value of the damaged goods?"

Maybe. That's what litigation is all about. It certainly changes things from an assumption they breached the level of care required.

We agree on this one.

Old doesn't mean bad. (Thankfully, else I'd be very bad.) My house was built in the 1930s. It holds up just fine, thank you. While the dealer has taken a position to their benefit, that does not mean they are wrong. As to the knew or should have known about the possibility of failure, what tests will you have them do? They hung the thing up in a place they've been hanging things up for a long time.

that my friend, is an assumption. we don't know if they hung it up where other like things have been hung or just in a bald spot on the ceiling.

The hardware, on inspection, seemed good, the board, on inspection, seemed good--shall we get an x-ray out and test all the support beams and studs? Would that be reasonable?

what would be reasonable is to take ordinary care and to mount the item in a manner that it would last. We don't know if they used beam supports, if they anchored the item to the studs or if they just mounted it to a bald spot in which case it held until it didn't hold.
again, a matter for trial.

Assuming a latent defect (which may not be the case and why discovery would be needed) how much checking would be required? I think the fact it hung without incident for six months is indicitive of them acting reasonably.

IF they knew when hanging the item that it would last for six months. But we don't know that. All we know is they hung the item and six months later it fell. It would very well have been hung properly or not. as you said, discovery.

We could make the argument of res ipsa loquitur. Things hung up properly don't fall, ergo breach. This is far better than the duty to notify argument. It might very well be a winner. I certainly wouldn't bet against it. I certainly wouldn't walk away because the defendant-to-be says it wasn't his fault. I think it was his fault and he's trying to get out of it because his insurance company is giving him a hard time. I'd love to see the paperwork setting up the bailment. That may guide us as well.

and that is the second agreement.

as you said, things hung properly don't fall. But then, was the fall the cause of hanging improperly or a fault of materials. And if materials, was it the structure of the building or the item itself?

I'm not thinking of a duty to notify as much as the actions of the bailee tend make me think there was a reason for the deliberate action of not notifying the bailor. And absent other circumstances for which we have no fact, and since I'm playing bailor's attorney, I will assume it's because they were hiding the fact that the item fell six months prior to notification and it could not be fixed.

[You Are Guilty]

Y'all are jumping right past the possibility that a consignment arrangement like the OP's might be considered a gratuitous bailment. Especially a "verbal" one with nebulous terms. (At least, that's what my defense of the shop would start with.) I don't know GA commonlaw on the issue, but it's worth checking out.

And for the shop's sake, I sure hope they hired/had a contractor mount the thing, or else res ipsa is going to sink them

About the only "problem" I see if you file in Magistrate's Court is the valuation of the chandelier - if it was worth $10k in 92, you may be over the $15k limit, but you'd likely need some expert appraisal(s) to prove it's current value.

[BelizeBreeze]

Originally Posted by You Are Guilty

Y'all are jumping right past the possibility that a consignment arrangement like the OP's might be considered a gratuitous bailment. Especially a "verbal" one with nebulous terms. (At least, that's what my defense of the shop would start with.) I don't know GA commonlaw on the issue, but it's worth checking out.

And for the shop's sake, I sure hope they hired/had a contractor mount the thing, or else res ipsa is going to sink them

About the only "problem" I see if you file in Magistrate's Court is the valuation of the chandelier - if it was worth $10k in 92, you may be over the $15k limit, but you'd likely need some expert appraisal(s) to prove it's current value.

I wouldn't touch the shop representation with a Georgia Gig pole

[BelizeBreeze]

Section 10.2 Application of Civil Code Sections 1859 and 1860
Section 10.2.1 Generally

The liability of a depositary (whether a depository for hire or a gratuitous depository) is defined in Civil Code Section 1840 as follows: "The liability of a depositary for negligence cannot exceed the amount which he is informed by the depositor, or has reason to suppose, the thing deposited to be worth."

[tranquility]

YAG

Y'all are jumping right past the possibility that a consignment arrangement like the OP's might be considered a gratuitous bailment.

No way. While the modern trend is towards ordinary care, even if we were in the common law divisions, how can we suppose there is not an anticipated benefit to both parties? Is the dealer going to get something for his trouble? Is the OP? That's what consignment is all about. Just because there is a risk that an item won't sell does not mean the parties didn't anticipate a benefit. Clearly both are doing this for their own purposes.

YAG:

And for the shop's sake, I sure hope they hired/had a contractor mount the thing, or else res ipsa is going to sink them

BB:

But then, was the fall the cause of hanging improperly or a fault of materials. And if materials, was it the structure of the building or the item itself?

This was my problem with res ipsa, was it solely in the control of the defendant? I think it would be and somehow dimly recall a chandilier-hanging case in my tort casebook on res ipsa--but then that's that "old" talking again. Independent contractor, item hung low enough for someone else to screw with it, faulty hanging hardware, etc. are all out of the sole control of the dealer. I still think it may apply, but who knows?

Info edit:
I went to actually look at a horn book and then did a quick search for case law in Georgia, I don't know who stole from who, but the following is in both Prosser on Torts and Atlanta Coca Cola Bottling Company v. Court of Appeals of Georgia, 134 S.E.2d 909, 109 Ga. App. 53. (The case does not involve chandeliers, but res ipsa):

"But if defendant merely offers evidence of his own acts and precautions amounting to reasonable care, it seems more difficult to justify a directed verdict in his favor. The fact remains that the accident has happened, and that such accidents ordinarily do not occur without negligence. The defendant testifies that he used due care to insulate his wires -- but the current escaped, and current does not escape through proper insulation. n129 [FOOTNOTE OMITTED] He testifies that he inspected his chandelier -- but it fell, and properly inspected chandeliers do not fall. n130 [FOOTNOTE OMITTED] He says that he drove carefully -- but the bus went into a ditch, and carefully driven vehicles do not do so. n131 [FOOTNOTE OMITTED] There is enough in the way of common human experience to permit the jury to say that defendant's witnesses are not to be believed, that the care used was not enough, that upon all the evidence no better explanation of the occurrence is to be found than defendant's negligence. Even though it be the rule that uncontradicted testimony must be accepted, still the defendant's evidence is contradicted by the normal inference to be drawn from the circumstances. n132 [FOOTNOTE OMITTED] Perhaps it is not entirely impossible that evidence of due care may be so conclusive as to require a directed verdict, n133 [FOOTNOTE OMITTED] but in all but the most unusual cases it should be denied. n134 [FOOTNOTE OMITTED]

[HappyHusband]

Originally Posted by tranquility

I think it would be and somehow dimly recall a chandilier-hanging case in my tort casebook on res ipsa--

Interesting. We studied cases with barrels falling out of warehouses and furniture being thrown out of San Francisco hotel windows on V-J Day.