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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: JEFFREY S. ZIPES Coots, Henke & Wheeler, P.C. Carmel, Indiana ATTORNEY FOR APPELLEE: DAVID P. MURPHY David P. Murphy & Associates, P.C. Greenfield, Indiana

IN THE COURT OF APPEALS OF INDIANA
THE KROGER COMPANY, Appellant-Petitioner, vs. PATRICIA K. HAMMOND, Appellee-Respondant. ) ) ) ) ) ) ) ) )

No. 30A01-0705-CV-209

APPEAL FROM THE HANCOCK SUPERIOR COURT The Honorable Larry Amick, Commissioner Cause No. 30D02-0702-SC-79

November 29, 2007

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue The Kroger Company ("Kroger") appeals a small claims judgment against it and in favor of Patricia Hammond in the amount of $570.00. For our review, Kroger raises two issues, which we consolidate and restate as one: whether the small claims court's judgment was contrary to law. Concluding that the small claims court's determination that a bailment existed between Hammond and Kroger and that Kroger breached its standard of care as bailee is not clearly erroneous, we affirm. Facts and Procedural History Hammond was hired by an in-home health care service to do the shopping for its elderly or disabled clients. On December 26, 2006, Hammond was shopping at a Kroger store. She put her purse, which contained an organizer in which she kept client shopping lists and money, in the front of her cart. After she checked out, the bag clerk brought another cart to the lane and put Hammond's purchases in that cart. He then moved her original cart to the other side of the lane behind some boxes. Hammond "thought he had put everything in the other cart." Tr. at 12. Hammond realized as she was leaving the store that she did not have her purse. She returned to the lane where she had just checked out and told the cashier that she had left her purse. Kroger employees looked for the purse. The bag clerk testified that employees "went to the parking lot and looked at all the carts and couldn't find it." Tr. at 31. Someone later turned the purse into the customer service desk, but the $570 Hammond claimed she had in the purse was missing. Hammond filed a Notice of Claim in small claims court alleging that

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Defendant's employee took shopping cart containing Plaintiff's groceries and wallet. A Kroger employee transferred the groceries to another cart. When Plaintiff discovered wallet was missing she reported it to the store office. They returned her wallet, but not the money. Only Kroger employees had access to the cart and the wallet during this time. Appellant's Appendix at 27. Hammond testified at the bench trial that one other customer and two Kroger employees were in the checkout area when she was there. She also testified that she saw the bag clerk move her original cart behind some boxes on the other side of her checkout lane, but she did not see anyone remove money from her purse. At the conclusion of the bench trial, the small claims court made the following statement: . . . I don't believe she is claiming that she can necessarily prove that any individual person at Kroger stole the money. I[ ] think what she is saying is that Kroger, by taking charge of the cart with the item in it and placing it where it was in an area that couldn't be easily seen should be held liable in a theory of what we could call under law "constructive bailment[,]" that is, they have authority and jurisdiction over the property and she did not at a time when the property came up missing and because of their [role] in doing, taking positive action to put it where it was and then the money coming up missing whoever took it Kroger should be held responsible or liable under legal theory because they took it away from where she could supervise it and keep control and authority over it and at the time it was at that situation the money was taken by whom she does not know. . . . [O]n the theory of constructive bailment I think there is sufficient evidence in the record to enter judgment for the plaintiff . . . . Tr. at 42-44. The small claims court entered judgment of $570.00 with no costs against Kroger. Kroger now appeals. Discussion and Decision I. Standard of Review Indiana Small Claims Rule 8(A) provides: The trial shall be informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law, and shall not be 3

bound by the statutory provisions or rules of practice, procedure, pleadings or evidence except provisions relating to privileged communications and offers of compromise. Our standard of review is particularly deferential in small claims actions; however, the parties in a small claims case bear the same burdens of proof as they would in a regular civil action on the same issues. Ind. Small Claims Rule 4(A); Mayflower Transit, Inc. v. Davenport, 714 N.E.2d 794, 797 (Ind. Ct. App. 1999). A judgment in favor of a party having the burden of proof will be affirmed if the evidence was such that from it a reasonable trier of fact could conclude that the elements of the party's claim were established by a preponderance of the evidence. Wehry v. Daniels, 784 N.E.2d 532, 534 (Ind. Ct. App. 2003). Judgments in small claims actions are "subject to review as prescribed by relevant Indiana rules and statutes." S.C.R. 11(A). When reviewing claims tried to the bench without a jury, we apply the clearly erroneous standard to review of facts determined at the trial. Ind. Trial Rule 52(A); Trinity Homes v. Fang, 848 N.E.2d 1065, 1067 (Ind. 2006). In

determining whether a judgment is clearly erroneous, we do not reweigh the evidence or determine the credibility of witnesses. Rather, we consider only the evidence that supports the judgment and the reasonable inferences to be drawn therefrom. Counceller v.

Ecenbarger, Inc., 834 N.E.2d 1018, 1021 (Ind. Ct. App. 2005). However, this deferential standard is not applied to substantive rules of law, which we consider de novo. Trinity Homes, 848 N.E.2d at 1067. II. Bailment The small claims court determined that a bailment existed and accordingly entered 4

judgment in favor of Hammond. Kroger contends that the small claims court's conclusion was erroneous, because no bailment was created or, if a bailment existed, because Kroger did not breach its standard of care arising out of the bailment. A. Existence of a Bailment A bailment is an agreement, either express or implied, that one person will entrust personal property to another for a specific purpose and that when the purpose is accomplished, the bailee will return the property to the bailor. Pitman v. Pitman, 717 N.E.2d 627, 631 (Ind. Ct. App. 1999). A bailment arises when personal property belonging to a bailor is delivered into the exclusive possession of the bailee and the property is accepted by the bailee. Kottlowski v. Bridgestone/Firestone, Inc., 670 N.E.2d 78, 82 (Ind. Ct. App. 1996), trans. denied. To constitute delivery, there generally must be such a full transfer, either actual or constructive, of the property to the bailee as to exclude the possession of the owner and all other persons and give to the bailee, for the time being, the sole custody and control of the property. Cox v. Stoughton Trailers, Inc., 837 N.E.2d 1075, 1083 (Ind. Ct. App. 2005). Acceptance requires either an express contract to take the property and later redeliver it, or circumstances from which such a contract can be implied. Kottlowski, 670 N.E.2d at 82. Whether or not there was delivery and acceptance of the property is a question for the trier of fact. Id. There is little doubt that there was no express contract between Hammond and Kroger regarding her purse. The trial court found a "constructive bailment." "Involuntary or constructive bailments arise in situations in which one person receives lawful possession of another's property, other than by virtue of a bailment contract. This bailment arrangement 5

arises when personal property passes to another by mistake [or] accident . . . ." 8A Am.Jur.2d Bailments

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