Property

[erahming]

What is the name of your state (only U.S. law)? Florida. Child A asked Child B to hold her earrings while she played a sport. This was on a Friday. Child A forgot to get her earrings from Child B. On Monday morning Child A sent a text to Child B asking for the earrings. Child B could not find them. Question: Is Child B's parent legally responsible to replace the full or partial value of the earrings?What is the name of your state (only U.S. law)? I am in Tampa, Florida.

 

[Zigner]

What is the name of your state (only U.S. law)? Florida. Child A asked Child B to hold her earrings while she played a sport. This was on a Friday. Child A forgot to get her earrings from Child B. On Monday morning Child A sent a text to Child B asking for the earrings. Child B could not find them. Question: Is Child B's parent legally responsible to replace the full or partial value of the earrings?What is the name of your state (only U.S. law)?

Did the parents lose the earrings?

 

[erahming]

Child B can't find the earrings. She put them in her pocket during the game.

 

[quincy]

Negligence is a civil wrong that is based on a failure by someone to exercise ordinary care and this failure to exercise ordinary care results in injury or damage to another.

In general, children are given a "favored status" under the law. If Child A and Child B are under the age of 8, the law considers them incapable of committing a negligent act. If six-year-old Child A placed her earrings in the care of six-year-old Child B, there is no liability that can be imposed on either B or on B's parents for the loss of the earrings. There was, in essense, no negligent act.

And there is a presumption (albeit a rebuttable one) that children between the ages of 8 and 14 are also incapable of negligence, so if Child A is 13 and Child B is 13, there is no liability that can be imposed on B or on B's parents for the loss of the earrings (without evidence to support that Child B was capable of committing a negligent act), because, in essense, there was no negligent act.

Finally, Child A assumed a certain amount of risk when placing her earrings in the care of Child B during the game, regardless of the ages of the two children. If Child A understood and recognized the risk of turning over the earrings to Child B, then any recovery for the loss of the earrings can be barred.

While there could potentially be a legal duty imposed on 16-year-old Child B to take reasonable care of Child A's earrings while they were in her possession during the game, and she could have been negligent had she lost the earrings during that period of time, A contributed to the loss of the earrings by failing to collect the earrings from B immediately after the game.

I do not see that Child B or Child B's parents would be held legally liable for the loss, nor legally obligated to replace the earrings or provide for partial payment. However, it would be nice for Child B's parents to offer a partial payment.

Child A's parents can always consult with an attorney in their area, if they are the litigious sort and feel that Child B's parents owe them for the loss. I am not seeing that Child B's parents owe anything from what you have posted here, however.

 

[BOR]

In this case I think it would be a "gratuitous bailment" even if a child is capable of such, it would have to be proven slight/ordinary care was not given to secure against loss/damage.

 

[quincy]

I don't think so, BOR. The earrings were not loaned to Child B by Child A. Child B was not borrowing the earrings. Child A was merely having Child B hold them.

Bailment involves an express or implied contract - and, of course, kids cannot legally enter contracts.

Either way, however, I do not see that Child B or Child B's parents would be held legally liable for the loss of the earrings, based on what information has been provided here.

 

[BOR]

I don't think so, BOR. The earrings were not loaned to Child B and Child A was not turning over possession of the earrings to Child B. She was merely having her hold them.

Have not looked up FL case law for definitions/elements yet, about to sign off, but here is a definition from Lectlaw.com;

BAILMENT
A legal relationship created when a person gives property to someone else for safekeeping. To create a bailment the other party must knowingly have exclusive control over the property. The receiver must use reasonable care to protect the property.

 

[quincy]

From Black's Law:

bailment: A delivery of personal property by one person to another who holds the property for a certain purpose under an express or implied-in-fact contract.



Kids cannot enter into legal relationships. They cannot form contracts. And, if they are 14 and under, they cannot (under most circumstances) be found guilty of committing a negligent act.

 

[tranquility]

This certainly was a bailment. I think BOR's first post was correct. While there can be a contract associated with a bailment it is not necessary. I don't know the standard of care in Florida, but for this type of bailment it generally is slight care. However, if the girl holding the earrings received a benefit too, the standard of care is higher.

(For example of why it's not a contract, if you leave a coat in my business and I put it behind the counter to keep it safe, a bailment has been created. Yet, there is no contract. In this case the lawsuit would be for conversion and not breach of contract.)

 

[quincy]

There would be neither an action for conversion nor for breach of contract. One, nothing has been said about Child B wrongfully disposing of the earrings and she did not wrongfully possess the earrings. And there has been no breach of contract because no contract exists or can exist between children.

Although I may be in error on bailment, if this is bailment then the benefit was only to Child A (the bailor), so Child B (the bailee) would have to be found grossly negligent for the loss of the earrings.

Now go back to my earlier post on negligence and the liability imposed on children who are negligent.

 

[justalayman]

Bailment involves an express or implied contract - and, of course, kids cannot legally enter contracts.
e.

that is not true. The question is; can they be bound by a contract and in some types of contracts, that would be yes. Contracts concerning necessities of life are often enforceable when concerning a minor.

 

[tranquility]

Negligence is not the call of the question unless the holder received some benefit.

quincy, this is not a contractual issue. Bailment is not contractual, (At least what issue one sues upon.) unless there is some agreement. An implied agreement may suffice. Yet, that is not usually the lawsuit.

Accept the fact that kids can commit the tort. If *anyone* does not return the goods, the suit is in tort and not contract. (Unless there is a specific contractual promise. Even a dry cleaner deals with tort and not so much in contract.)

Conversion is appropriate because the child should have returned the earrings. They had a duty to return them to the appropriate party. They did not. That is why it is wrongful. If they did the requisite standard of care, no problem. If not, conversion.

This is not a negligence call of the question (issue). I mean, unless the holder of the earrings gained a benefit from the holding.

 

[tranquility]

Tranquility, I know this is not a contractual issue. And bailment is a contract (implied or otherwise).

The issue is in tort and not in contract. Your claim that children cannot make a contract is *IRRELEVANT*. Bailment is *NOT* a contract. There are parts surrounding it which can be, but the issue here is not. Stop talking about contract. Stop talking about what kids can do. This is a tort, pure and simple. (Well, a potential tort.)

If this is considered bailment, then the two children have entered into a contract which, by its very nature, is unenforceable.

This is a legally untrue statement.

In addition, if this were bailment, and Child A is the only one who benefits as the bailor, Child B has a lesser duty to care for Child A's property as the bailee and therefore would be held financially responsible (or her parents would be held financially responsible) ONLY if Child B was found to be grossly negligent or Child B acted in bad faith.

Maybe. I accept the assumption, but many minor facts could change it. (For example, what if Bitsy could not play in the soccer game because of the earrings and Missy did not want to go in instead so offered to hold the property?)

There is no indication that Child B acted in bad faith, there is no indication that Child B failed in her duty to care for the earrings DURING the game (which was the time within which it was her duty to care for the earrings for Child A; it was Child A's responsibility to collect the earrings after the game), and Child B did not wrongfully possess the earrings and there is no indication that Child B used, sold, or disposed of the earrings, so there is no conversion.

But, there is no contract (by your argument). Why is during the game relevant? Also, review conversion. Your definition is not correct. For example, a dry cleaner takes in property to clean. The building burns down. What does the bailee sue for? Conversion. (Of course, we'd have to determine the facts to see if the dry cleaner was liable.) How could this be fit into "used, sold, or disposed"?

Children cannot be found negligent (generally)

Huh? Do you have a citation? Of course children can be found negligent.

and children cannot enter into contracts and bailment is a contract and, based on the described circumstances,

No. Bailment is not a contract based on the describe circumstances.

if this were bailment, there must be a finding of gross negligence for financial liability on Child B's part, and children cannot be found guilty of a negligent act (generally), whether it be gross negligence or ordinary negligence.

Goodness, quincy, this must be your least accurate post on this forum ever. Ever.

While the duty may change based on the benefit, of course kids can be found negligent. There may be some issue for those who are too young to commit a crime. While I don't know of it, it tingles my brain. If I really cared, I might look it up. Please provide any case from anywhere where a child was not negligent because he was a child. (And not because of what the child's duty was. But, for argument's sake, you can include those as well.) INTENT (which is usually the child problem) is NOT a part of a negligence discussion.

quincy, I'm surprised. You usually give answers based on the law. While you have some legally correct things in your response, in reality, you are quite wrong. Obviously so.

If you want debate to continue, please give specifics as to your claim. Issues if you will and the determination of the issue. At least then I can give case law which will refute.

 

[quincy]

My least accurate post on the forum ever, huh?

I had actually deleted the post you quoted so I could rewrite and refine it a bit, but I still stand by what I said (at least the parts you quoted I do).

First, I agree that there is no contract. I have said all along that there is no contract. I was not the one to mention bailment. And bailment is a contract (albeit in come cases implied).

But, bailment or not, however you want to look at the matter, it will still get back to duty of care and negligence.

There is a reasonableness of care standard applied to children. You would not expect the same standard of care from a 7 year old that you would from a 20 year old. The law understands this and has always made accommodations for children for this reason.

The bottom line for me is that I stand by my answer to erahming that I do not see any liability that can be imposed on Child B or Child B's parents for the loss of the earrings, based on the facts as presented here.

But, considering the conflicting opinions here, I suggest erahming speak with an attorney in his/her area to see what the attorney says the likelihood of pursuing any successful action against Child B and her parents would be. Unless these are really expensive earrings we are talking about here, however, the cost of the attorney will probably be more than the cost of purchasing a new pair of earrings.

 

[quincy]

Okay, tranquility. This may be the last time I humor you with case cites, as you have never likewise responded with anything to support your statements despite my requests.

Here is some reading for you regarding Florida case decisions on minor children and negligence. There are many many many additional cases. As you will see from the reading, there is a solid basis for my earlier statements on court determinations that children of certain ages are presumed incapable of committing negligence. This is recognized (to my knowledge) in all states.

Swindell v Hellkamp, 242 So 2d 708 (Fla 1970)

Harris v Moriconi, 331 So 2d 353 (Fla 1st DCA 1976)

Turner v Seegar, 151 Fla 643, 10 So 2d 320 (1942)

Clay v State, 1940

There is a reason why there is "juvenile" justice system. Young children are not (generally and under most circumstances) held to adult standards in any area of the law because they are not adults.

Simple research on bailment, contracts with minors, and conversion can support my other statements. Examples abound. Try Google. To get you started, however:

On Florida bailment, see S & W AirVac Systems, Inc v Department of Revenue, State of Florida, 697 So.2d 1313, 1315 (Fla. 5th DCA 1997) (citing 5 Fla Jur. 2d, Bailment §1, 1978). The Court said, "A bailment is a contractual relationship among the parties in which the subject matter of the relationship is delivered temporarily to and accepted by one other than the owner."

Also see 5 Fla. Jur 2d, Bailments §2, §3 (citing 8 Am Jur 2d Bailments §15) and §31 (2000).

Under Florida contract law (and, to my knowledge, all contract law), one of the factors considered in a contract is the capacity of the parties to enter into the contract. Underage persons, persons who are mentally ill, and intoxicated persons (usually) are not bound by the contracts they enter. Individuals must possess the requisite legal capacity to enter into a valid and binding contract. While minors can on their own enter into contracts with others, and minors have the option of enforcing the contracts, minors are also able to void any contracts they form with others, as the contracts are not considered legal and binding under the law (with very few exceptions).

And a legal definition of conversion: "The unlawful turning or applying the personal goods of another to the use of the taker or of some other person than the owner, or the unlawful destroying or altering of their nature." When a party takes away or wrongfully assumes the right to goods which belong to another, this is generally sufficient evidence of conversion. When the original taking was lawful, however, and only the detention is illegal, there must be proof of an unjustifiable refusal to return the goods. Conversion is basically just a fancy name for theft.

Now, if you wish to respond with case cites or evidence showing that any of what you stated as fact is, in fact, factual, I will read over what you have.