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Semoon v. the Woos. School Corp.

Connecticut Superior Court Judicial District of Danbury at Danbury
Jul 18, 2010
2010 Conn. Super. Ct. 14850 (Conn. Super. Ct. 2010)

Opinion

No. DBD-CV-08-5005131S

July 19, 2010


MEMORANDUM OF DECISION


I PROCEDURAL BACKGROUND

The plaintiff, Suk Semoon, commenced this action against the defendants, the Wooster School Corporation, a/k/a the Wooster School ("Wooster School"), the Wooster Community Art Center ("WCAC"), a/k/a the Wooster School Art Center, a/k/a The Wooster Community Potters and Wendy Northrup. This case arises out of the alleged loan by the plaintiff of seven pieces of sculpture to the defendant WCAC which allegedly was controlled and operated by the defendant Wooster School.

The plaintiff originally alleged the following four counts against the defendants: count one against defendants Wendy Northrup and the defendants Wooster School and WCAC for negligence, count two against the defendants Wooster School and WCAC for breach of contract, count three against the defendants Wooster School and WCAC for conversion and count four against the defendants Wooster School and WCAC for unjust enrichment. At trial, the plaintiff sought permission, and was granted leave, to amend her complaint to withdraw her count three claim of conversion and to title her count two claim as a claim for breach of bailment contract. The defendants also sought permission to amend their answer and special defenses to add a special defense of statute of limitations as to the breach of bailment contract claim and that request was also granted.

Trial was conducted in this matter beginning on March 4, 2010 and concluded on March 11, 2010. At the close of trial, the plaintiff withdrew her negligence count as against the defendant Wendy Northrup. Post-trial briefs were filed by the parties on the following dates May 20, 2010, June 3, 2010 and June 10, 2010. In her May 20, 2010, post-trial memorandum, the plaintiff advised the court that she had elected not to pursue her negligence and unjust enrichment counts as to the remaining defendants. Thus, the only count this court will consider and rule upon is count two of the Amended Complaint, which is for breach of bailment contract.

The plaintiff has alleged in count two of her Amended Complaint, for breach of bailment contract, that the defendants Wooster School and WCAC in September 2001 willingly took possession of seven of the plaintiff's outdoor sculptures and displayed them in plain view on its campus. The plaintiff further alleges that when she asked for the return of the seven sculptures, she was advised that three were missing and one had been damaged. The plaintiff alleges that the defendants Wooster School and WCAC failed to redeliver all of the seven sculptures to her at her request, failed to maintain the sculptures with reasonable care, failed to protect the sculptures and are therefore liable for the full value of the missing/damaged sculptures.

II FACTUAL BACKGROUND

The court finds the following facts. The plaintiff is an artist who in 1965 was named as a finalist in the National Competition held by the National Gallery of the Republic of Korea and she graduated with a bachelor's degree in fine arts from Hong-ik University in Seoul, Korea in 1970. (Trial Ex. 2.) In 1989, the plaintiff received a master's degree in fine arts from the State University of New York, Albany. In 1988, the State University of New York awarded the plaintiff a $20,000 research grant, and the plaintiff used those funds to create the seven outdoor sculptures at issue in this action. (Trial Ex. 6.)

The plaintiff has exhibited her art, including a few pieces at issue in this action, in approximately thirty solo and group exhibitions since 1985. (Trial Ex. 2.) One of the pieces at issue in this action, a ball sculpture made interiorly of stainless steel mesh and covered with Goodyear gasoline rubber hoses, was reviewed by the New York Times. (Trial Tr. 3/5/10, pp. 18, 24.) A number of the pieces at issue in this action were welded and fabricated by engineers based on drawings of the plaintiff. (Trial Tr. 3/5/10, pp. 15, 63, 65.) The plaintiff testified that she placed a special agent, a patina finish, on sculptures one, three and seven to give them a reddish color, similar to rust, so that the sculptures would be in harmony with nature and the New England landscape. (Trial Tr. 3/5/10, pp. 17, 19.) Notwithstanding her extensive exhibitions, the plaintiff did not sell any of her outdoor sculptures from 1985 to the present. At trial, the plaintiff stated that she could not put a number on the value of the artwork that was destroyed or discarded. (Trial Tr. 3/5/10, p. 105.)

The defendant Wooster School is located in Danbury, Connecticut. Until 2007, it operated a community art center on its grounds and exhibited artwork there. (Trial Tr. 3/11/10, pp. 79-80.) The defendant WCAC operated on the grounds owned by the defendant Wooster School and the WCAC's budget was part of the Wooster School's general budget. (Trial Exs. 16, 17, 19, 21; Trial Tr. 3/11/10, pp. 79-80.) The defendant Wooster School had authority to operate and manage the defendant WCAC and the director of the WCAC was appointed by and accountable to the headmaster of the defendant Wooster School. (Trial Exs. 16, 17, 19, 21.) Nancy Rogers, the director of the WCAC, was an employee of the Wooster School and she reported and answered to the board of the Wooster School. (Trial Exs. 17, 19, 21; Trial Tr. 3/11/10, pp. 3-4, 7-8.) Nancy Rogers also testified that the WCAC shared the facilities with the Wooster School and that "the art center was not our own, nothing was our own." (Trial Tr. 3/11/10 p. 21.) The court finds that the defendant Wooster School had control and authority over defendant WCAC, the defendants Wooster School and WCAC were in fact one institution, and the defendant Wooster School had control and authority over the activities of Nancy Rogers as well.

The plaintiff delivered seven pieces of outdoor sculpture to the defendants in September 2001. (3/4/10 Joint Trial Stipulation, ¶ 1.) Nancy Rogers and Lee Rogers, the husband of Nancy Rogers, testified these sculptures were loaned for an undeterminable time to the defendants and she agreed to display the sculptures at the defendant WCAC because it was believed it would enhance the landscape at the school. (Trial Tr. 3/11/10, pp. 9, 33.) The sculptures were placed on the grounds of the defendant WCAC as part of an outdoor sculpture exhibition. (Trial Tr. 3/11/10, pp. 9, 20-21; Trial Ex. 34.) The plaintiff and Nancy Rogers agreed that the plaintiff would display her seven sculptures at the school for an open-ended term and that the plaintiff could collect the sculptures at any time to sell, donate, or exhibit them elsewhere. (Trial Tr. 3/11/10, pp. 9, 23, 25; Trial Tr. 3/5/10, p. 41.) Nancy Rogers also testified in her deposition that she did not need the approval of the defendant Wooster School to display the seven sculptures. (Trial Tr. 3/11/10, p. 22.) The parties' agreement was not committed to writing. The deposition testimony of Nancy Rogers confirmed that while art exhibits were held at the art center more than a couple of times a year, the defendant WCAC never made written agreements with the artists for the exhibition of their art. (Trial Tr. 3/11/10 p. 10.) In the fall of 2001, the seven sculptures were delivered to the defendant WCAC and the defendant WCAC paid for the transport of the sculptures to the art center. (Trial Ex. 11; 3/4/10 Joint Trial Stipulation, ¶ 1.)

Lee Rogers assisted the plaintiff in arranging the sculptures on the grounds of the school and the sculptures were arranged in plain view on the lawn of the school. (Trial Tr. 3/5/10, pp. 41, 45; Trial Tr. 3/11/10, p. 34.) The plaintiff visited the sculptures numerous times during the period of fall 2001 through the fall of 2004 and found the sculptures to be in good condition and in the same locations they had been placed. (Trial Tr. 3/5/10, pp. 19-20, 46, 128.) In September 2004, Nancy Rogers was replaced by Lee Rogers as the interim director of the defendant WCAC. (Trial Tr. 3/11/10, pp. 2, 30.)

In May 2005, Wendy Northrup became the director of the defendant WCAC. (Trial Tr. 3/11/10, p. 23.) In Lee Rogers's deposition testimony admitted at trial, he testified that when he left the defendant WCAC in May 2005, as interim director, the plaintiff's sculptures were still on the grounds of the defendant WCAC and none of the sculptures were damaged or lost. (Trial Tr. 3/11/10 p. 32.) When Northrup arrived at the defendant WCAC in May 2005, there were three of plaintiff's sculptures, sculptures four, five and six, clustered near the parking lot of the art center. (Trial Tr. 3/11/10, p. 84.) Northrup also testified at trial that there was also another sculpture, sculpture seven, located in front of an art center building. (Trial Tr. 3/11/10, p. 85; Trial Ex. B.) Wendy Northrup further testified that the steel ball of sculpture three was located near a stump of a tree on the defendant WCAC grounds, that she never saw sculpture two, the rubber ball, on the grounds and that she could not recollect if she ever saw sculpture one. (Trial Tr. 3/11/10 pp. 86-87.) Northrup testified that sculpture seven was destroyed in June 2005 by a dumpster during construction work on the defendant WCAC's building and was subsequently discarded. (Trial Tr. 3/11/10, pp. 93, 95, 118.)

Northrup also testified that at that time, no one at the school and/or art center was aware of who owned the sculpture that was destroyed or any of the other sculptures on site. (Trial Tr. 3/11/10, pp. 94-97.) Northrup testified of the concern of the school maintenance staff with several of the sculptures as it appeared to the staff that the pieces were rusted and could be of danger to the students of the school. (Trial Tr. 3/11/10, p. 109, 118.) The plaintiff testified in the trial that this rust "reddish color," or patina finish, on the sculptures was purposeful and her intent to make the sculptures in harmony with the New England landscape. (Trial Tr. 3/5/10, p. 17.)

Northrup testified she was contacted in the winter of 2006 by the plaintiff regarding the retrieval of her sculptures. (Trial Tr. 3/11/10, p. 97.) Northrup testified she advised the plaintiff what had happened to sculpture seven and had a discussion with her regarding the other missing sculptures. Northrup testified she contacted Nancy Rogers regarding the sculptures and subsequently wrote a letter to the plaintiff in which she stated that she was informed by Nancy Rogers that the plaintiff's sculptures were on loan to the defendant WCAC as part of an outdoor sculpture exhibition and that there was no written agreement regarding the length or terms of the loan. (Trial Tr. 3/11/10, p. 125; Trial Ex. 34.) Northrup also testified that the plaintiff's lawyers came to the premises of the defendant WCAC and searched every single storage area for the missing sculptures without success. (Trial Tr. 3/11/10, p. 100.) Northrup testified that sculpture one may have been thrown out, but that she could not recall exactly what happened to the sculpture. (Trial Tr. 3/11/10, pp. 117-18.)

The plaintiff testified at trial that she was not seeking any financial remuneration or monies for displaying her artwork at the defendant WCAC and that she was volunteering her sculptures to the defendant WCAC to help the community and for a good cause. (Trial Tr. 3/11/10, pp. 157-58; Trial Tr. 3/5/10, pp. 33, 42.) The plaintiff testified that she had no expectation or goal that the defendants would pay her at any point in time for displaying her artwork there. ( Id.) The plaintiff further testified that she had no conversations with Nancy Rogers regarding charging the defendant WCAC for displaying her artwork. ( Id.)

At trial the plaintiff offered an expert witness, Anna Benjamin, on the subject of appraising the plaintiff's sculptures. Benjamin testified that she is employed with O'Toole Ewald Art Associates in New York City, New York, that such entity was an appraisal firm and that she had worked at this company for fifteen years. (Trial Tr. 3/4/10, p. 15.) She also testified that her position at the firm was senior fine art appraiser and she works on very difficult appraisals, particularly art that has been lost, damaged or stolen. ( Id.) She further testified that she offers a class at Pratt Art School in New York City, entitled "Strategies for Handling and Managing Difficult Appraisal Assignments" and that she also taught gallery management at Parsons School of Design. (Trial Tr. 3/4/10, p. 17.) Benjamin also gave testimony as to the notable projects she has worked on, including projects for the Andy Worhol Foundation and the Phillip Morris collection. ( Id.)

With respect to the claims made in this action, she testified that in appraising the plaintiff's lost sculptures she interviewed the plaintiff, got a background on the plaintiff, reviewed price lists of works the plaintiff exhibited, reviewed exhibition catalogs, reviewed two newspaper articles about the plaintiff's work and researched comparable sculptors. (Trial Tr. 3/4/10, pp. 18-19.) She also testified that the plaintiff was an "unknown" or "lesser known artist." (Trial Tr. 3/4/10, pp. 32, 51.) Benjamin testified that she would consider the sales and negotiations over the recent history to be relevant to the value of an artist's work. (Trial Tr. 3/4/10, p. 33.) She also testified that she considered the plaintiff's sales of other art medium, such as drawings, in determining a price for the large outdoor sculptures at issue in this action. (Trial Tr. 3/4/10, p. 35.) Benjamin testified that extrapolation in the appraisal field was necessary and done regularly. ( Id.) Benjamin further testified that she reviewed listing prices for sculptures one and two, but admitted the sculptures never sold at the asking price. (Trial Tr. 3/4/10, p. 35-36.) Benjamin testified that the sculptures in question were created in the late 1980s, early 1990s. (Trial Tr. 3/4/10, p. 79.)

Benjamin testified that the plaintiff did not have a strong sales history and that necessitated the need to look at work by similar or comparable artists. (Trial Tr. 3/4/10, p. 40.) Benjamin testified that in looking at comparable artists, she looked for people that did not have gallery representation or a recognizable name, but who were similar contemporary artists. ( Id.) She testified she found a web site called "Sculptors.Org" which is a nonprofit organization that promotes sculptors and looked at the artwork on that site. Benjamin also testified that she herself was familiar with the market for sculptors. (Trial Tr. 3/4/10, pp. 40-41.) Benjamin also reviewed a sale by the plaintiff of one-half inch high figurines made to look like figures at Pepsico in which she was paid $2300 and drawings the plaintiff had made which had been documented as a $500 gift. (Trial Tr. 3/4/10, pp. 42-44.)

Benjamin next testified that she compared the plaintiff's sculpture works to an artist named Andy Zimmerman, who had exhibited with the plaintiff in 1991. (Trial Tr. 3/4/10, pp. 48-49.) She testified she found some of his art works on a website and he was "offering some works ranging in the price of $9,200 to $27,000." ( Id.) She testified that she then appraised the plaintiff's sculptures as follows: (1) sculpture one for $20,000; (2) sculpture two for $12,000; (3) sculpture number three for $10,000; and (4) sculpture seven for $16,000. (Trial Tr. 3/4/10, p. 49.) Benjamin testified that she never personally observed any of the sculpture pieces and relied on photographs the plaintiff provided to appraise the art. (Trial tr. 3/4/10, p. 53-56.) Benjamin further testified that she looked at asking prices or retail prices of artwork. (Trial Tr. 3/4/10, p. 68.) However, Benjamin testified that negotiations on a retail price of artwork usually results in a ten to fifteen percent discount off the asking price. (Trial Tr. 3/4/10, pp. 70-71.) Benjamin also testified that large sculptures of unknown artists "is more difficult to sell than any other medium and particularly large works by unknown artists would be difficult to sell" and that the plaintiff was an unknown artist with large outdoor sculptures. (Trial Tr. 3/4/10, p. 89.)

Benjamin testified that in appraising the plaintiff's artwork, she was not able to use any actual sale prices of comparable artists, but rather looked at retail pricing. (Trial Tr. 3/4/10, pp. 90-91.) In testifying as to why she chose the figures she chose for the sculpture pieces at issue in this action, Benjamin testified that as to sculpture one, she selected her $20,000 figure based on an artist Ed McCullough's work which work was valued at $18,000. (Trial Tr. 3/4/10, p. 101.) Benjamin testified that she valued the plaintiff's sculpture one at a higher value because "the artist considers it like one of her better works" and the range she was using for a comparable artist was $27,000 so she "made it less than that." (Trial Tr. 3/4/10, p. 102.)

In looking at comparable artists, Benjamin looked to Chakaia Booker, an admittedly famous artist, for rubber sculptures such as missing sculpture number 2. (Trial Tr. 3/4/10, pp. 47, 52.) Benjamin admitted that Booker was a major established artist who had gallery representation unlike the plaintiff. ( Id.; Trial Tr. 3/4/10, p. 62) Benjamin looked at the $26,000 sales price for a piece of Booker's sculpture and extrapolated to the plaintiff's sculpture and appraised the missing sculpture two at $12,000. (Trial Tr. 3/4/10 pp. 47-48.) This was done notwithstanding the fact that the plaintiff had offered sculpture two for $5,000 in 1991. ( Id.) Benjamin justified the $12,000 figure by stating that 1991 was "a very, very bad art market" and "relating it to 2005/2006 . . . $12,000 seemed reasonable." (Trial Tr. 3/4/10, p. 48.)

For sculpture three, Benjamin testified that she valued it at $10,000 by looking at Ed McCullough's abstract metal outdoor work that was valued at $18,000, so "it's basically almost halving it by bringing it down to $10,000." (Trial Tr. 3/4/10, p. 104.) The picture shown to Benjamin by the plaintiff was not an actual picture of the sculpture, rather the plaintiff drew the metal cage on the metal sphere shown. (Trial Tr. 3/4/10, pp. 164-67.)

For sculpture four, Benjamin testified that she valued it at $16,000 by comparing it to a work by Andy Zimmerman that was larger than plaintiff's sculpture. (Trial Tr. 3/4/10, p. 105.) She also testified the asking price for the sculpture was $25,000. ( Id.) In testifying as to how she arrived at the $16,000 figure, she testified "this piece [the Zimmerman piece] is much larger. It's more complex, and it's — it's smaller, so taking all things into consideration." ( Id.) She testified the range of retail prices she was looking at for determining the value of the sculptures at issue was $10,000 to $30,000. (Trial Tr. 3/4/10, p. 108.)

The plaintiff testified at trial that she had offered sculpture one at the Southern Vermont Exhibition for $5,000 to $7,000 and she did not recall if she had provided that information to Benjamin. (Trial Tr. 3/5/10, pp. 158-59.) The plaintiff also testified that the commission on artwork she offered for sale was "50/50 sometimes forty." (Trial Tr. 3/5/10 p. 88.) The plaintiff also testified that a "gallery on sale . . . have a 50 percent commission." (Trial Tr. 3/5/10, p. 99.) The plaintiff also testified that she spent $50,000 to $60,000 in creating the missing sculptures, but had no receipts or evidence to support such figures, other than a letter documenting the $20,000 grant she received from the State University of New York. (Trial Tr. 3/5/10, pp. 170-71.) The evidence, in particular the testimony of the plaintiff, was not credible relating to the plaintiff's claim that she spent $50,000 to $60,000 in creating these sculptures. (See Trial Tr. 3/5/10, 170-76.)

The evidence introduced at trial, and not disputed by the defendants, was that the defendants Wooster School and WCAC had no security in place for the sculptures, nor had the defendants ever taken any steps to protect the artwork.

III DISCUSSION 1. Statute of Limitations Breach of Bailment Contract

In count two of her Amended Complaint, the plaintiff has asserted a claim against the defendants for breach of bailment contract. The plaintiff has alleged that the defendants in September 2001 willingly took possession of seven of the plaintiff's outdoor sculptures and displayed them in plain view on its campus. The plaintiff further alleges that when she asked for the return of the seven sculptures, she was advised that three were missing and one had been damaged. The plaintiff alleges that the defendants failed to redeliver all of the seven sculptures to her at her request, failed to maintain the sculptures with reasonable care, failed to protect the sculptures and are therefore liable for the full value of the missing and/or damaged sculptures.

The defendants have alleged that the plaintiff's claims are barred by General Statutes § 52-584, the two-year statute of limitations applicable for negligence actions. The defendants argue that bailment is not a contractual cause of action, but rather is an action in negligence. The plaintiff contends that her breach of bailment claim is an implied contract claim and as such the applicable statute of limitations is General Statutes § 52-576(a), which is a six-year statute of limitations.

Although a breach of bailment contract is based on negligence, in a bailment action the defendant's negligence "constitutes a breach of contract." Barnett Motor Transportation. Co. v. Cummins Diesel Engines of Connecticut, Inc., 162 Conn. 59, 63, 291 A.2d 234 (1971). "In the care of property, the bailee's contractual obligation is to exercise due care for the safekeeping of the bailed property, and, so, essentially when loss or damage occurs, liability is based on negligence, even though negligence constitutes a breach of contract." Id. citing Maynard v. James, 109 Conn. 365, 368, 146 A. 614 (1929). The court finds that a breach of bailment contract is an action in contract, not negligence and the applicable statute of limitations for the plaintiff's claim is General Statutes § 52-576(a), which provides in relevant part that an action for an implied contract shall be brought within six years after the right of action has accrued. The court also finds that an implied contract did exist between the plaintiff and the defendants in this action.

A claim for breach of a bailment contract does not arise until the defendant fails to return the bailed property upon request. "In a bailment for an indefinite term, since the bailee is not in default until refusing to return the bailment property in response to the bailor's demand, the statute of limitations does not begin to run against the bailor's action to recover the property until there has been a demand for, and refusal to return, the property, or until the bailee has repudiated the bailment by converting the property." 8A Am.Jur.2d 732-33, Bailments § 216 (2009); see also H.J. Kelly Associates v. Meriden, Superior Court, judicial district of Meriden, Docket No. CV 030285781 (January 17, 2008, Taylor, J.). In the fall of 2006, the plaintiff requested that her sculptures be returned to her and in February 2007, she was advised by the defendant WCAC that a number of the sculptures were not able to be returned. (Trial Ex. 34.)

Based on the foregoing time frames, the court finds that the plaintiff's breach of bailment claim was timely filed in July 2008, well within the six-year statute of limitation period of General Statutes § 52-576(a), and the defendants' defense is without merit.

2. Breach of Bailment Contract

"A bailment involves the delivery of the thing bailed into the possession of the bailee, under a contract to return it to the owner according to the terms of the agreement . . . A relationship of bailor-bailee arises when the owner, while retaining general title, delivers personal property to another for some particular purpose upon an express or implied contract to redeliver the goods when the purpose has been fulfilled, or to otherwise deal with the goods according to the bailor's directions . . . In a bailment, the owner or bailor has a general property [interest] in the goods bailed . . . The bailee, on the other hand, has mere possession of items left in its care pursuant to the bailment." (Citations omitted; internal quotation marks omitted.) B.A. Ballou Co. v. Citytrust, 218 Conn.749, 753, 591 A.2d 126 (1991). "The essential element of a bailment is the express or implied assumption of control over the property by the bailee." Lissie v. Southern New England Telephone Co., 33 Conn.Sup. 540, 543, 359 A.2d 187 (1976). A bailment for mutual benefit "does not require that actual money or other consideration pass between the parties, nor does it require the demonstration of a specific tangible benefit or compensation." Hartman v. Black Decker Mfg. Co., 16 Conn.App. 1, 7, 547 A.2d 38 (1988).

In order to prove a bailment, the plaintiff must prove that she delivered the seven sculptures to the defendants. In this action, there is no dispute as to this issue and in fact the parties stipulated that the seven sculptures were delivered to the defendant WCAC. It is also undisputed in this action that Nancy Rogers, the director of the defendant WCAC, accepted the delivery of the sculptures and intended to and did use them as an outdoor sculpture garden to enhance the landscape of the defendants' facilities. It is clear, based on the evidence at trial, that Nancy Rogers had authority to accept the sculptures on behalf of the defendants. It is also undisputed that the plaintiff in 2006 asked for the return of all seven sculptures, but only three were fully returned. The court finds that a mutual benefit bailment did in fact exist between the parties as the loan of the sculptures benefitted the defendants and the plaintiff as well, as she had a place to exhibit her artwork and contribute to the community.

"Once a bailment has been established and the bailee is unable to redeliver the subject of the bailment in an undamaged condition a presumption arises that the damage to or loss of the bailed property was the result of the bailee's negligence." Barnett Motor Transportation. Co. v. Cummins Diesel Engines of Connecticut, Inc., supra, 162 Conn. 63, citing to National Broadcasting Co. v. Rose, 153 Conn. 219, 225, 215 A.2d 123 (1965); see also Griffin v. Nationwide Moving Storage Co., Inc., 187 Conn. 405, 409, 446 A.2d 799 (1982). "This presumption prevails unless and until the bailee proves the actual circumstances involved in the damaging of the property. If these circumstances are proved, then the burden is upon the bailor to satisfy the court that the bailee's conduct in the matter constituted negligence . . . The circumstances which a bailee must prove must be something more than those indicating the immediate cause of damage. The proof must go so far as to establish what, if any, human conduct materially contributed to that immediate cause . . . The isolated fact of destruction by fire or of lost by theft rebuts nothing. The bailee must prove something more if he is to overcome the presumption. He must prove the actual circumstances connected with the origin of the fire or theft, and these include the precautions taken to prevent the loss." (Citations omitted; internal quotation marks omitted.) Griffin v. Nationwide Moving Storage Co., supra, 187 Conn. 409. "Whether the bailee has proved the actual circumstances of the loss and rebutted the presumption of negligence in that the bailee has taken reasonable precautions under the circumstances is a question of fact for the trier." Id., 410.

This court agrees with the plaintiff that the defendants, the bailee in the present case, have put forth no evidence as to the actual circumstances surrounding the loss of sculptures one, two and three. Accordingly, the court finds that the presumption arises that the loss of sculptures one, two and three was due to the defendants' negligence. With respect to the destruction of sculpture seven, the defendants Wooster School and WCAC have put forth no evidence that it took any efforts, let alone reasonable efforts, to secure or protect this sculpture from being destroyed or damaged during construction. The court finds that the defendants' actions were woefully inadequate in protecting this sculpture from the construction that was occurring and that the loss that occurred was due to the defendants' negligence.

3. Plaintiff's Damages

"The measure of damages for conversion of the subject-matter of a bailment, or its loss through negligence of a bailee, is the value of the property at the time of its conversion or loss . . ." (Internal quotation marks omitted.) Griffin v. Nationwide Moving Storage Co., supra, 187 Conn. 419. "That damages may be difficult to assess is, in itself, insufficient reason for refusing them once the right to damages has been established . . . There is no unbending rule as to the evidence by which damages are to be determined, but the object of the parties ought to be attained as nearly as possible . . . We recognize that there can be circumstances where the proof of damages may be difficult. Nevertheless, the court must have evidence by which it can calculate the damages, which is not merely subjective or speculative, but which allows for some objective ascertainment of the amount." (Citations omitted; internal quotation marks omitted.) Id., 420 citing Bronson Townsend Co. v. Battistoni, 167 Conn. 321, 326-27, 355 A.2d 299 (1974).

The plaintiff's expert, Anna Benjamin, gave extensive testimony as to her valuation of the subject sculptures and what she assessed the value as of 2005 and/or 2006 to be. The plaintiff contends that based on Ms. Benjamin's testimony the value of the missing and/or damaged sculptures is $58,000. The plaintiff also contends that defendants' arguments regarding the validity of such value have no merit as the defendants "sat back and criticized her opinions while offering no alternative evidence." (Plaintiff's Post-trial Memorandum, p. 21.) However, the law is clear that the plaintiff has the burden of proof with respect to the amount of damages to be awarded and the defendants did not need to offer any evidence as to this issue. The mere fact "[t]hat a witness testified to a fact without direct contradiction is not of itself sufficient; the trial court must be the judge of the credit to be given a witness . . . The trier is not bound by the opinion of value even where there is expert testimony." (Citations omitted; internal quotation marks omitted.) Griffin v. Nationwide Moving Storage Co., Inc., supra, 187 Conn. 422.

In this case, the court is mindful of the following facts that are not disputed with respect to damages: (1) the plaintiff, an "unknown" or "lesser known artist" that never sold any of her large outdoor sculptures (Trial Tr. 3/4/10. pp. 32, 51); (2) the comparables that Benjamin used to come to her appraised values of the missing and/or damaged sculptures were "listing prices" not "sales prices"; (3) Benjamin testified that listing prices are sometimes negotiated downwards in the final sale and that discount is typically in the range of ten to fifteen percent. (Trial Tr. 3/4/10, pp. 70-71; Plaintiff's Post-trial Memorandum, p. 11); and (4) the plaintiff herself testified that the listing prices for her sculptures that were shown at museums had a fifty percent, sometimes forty percent, commission built into such prices (Trial Tr. 3/5/10, pp. 88, 99).

The court finds as follows with respect to damages. Benjamin valued the sculptures: 1) sculpture one for $20,000; (2) sculpture two for $12,000; (3) sculpture three for $10,000; and (4) sculpture seven for $16,000. (Trial Tr. 3/4/10 p. 49.) The total value of the sculptures according to Benjamin was $58,000. These figures were derived by comparing them to "listing prices" of other comparable artists. However, Benjamin testified that these prices typically result in a ten to fifteen percent discount when sold. (Trial Tr. 3/4/10, pp. 70-71.) The court finds that the $58,000 value derived by Ms. Benjamin should be reduced by ten percent in accordance with her testimony to equate it to a sales figure of the sculptures. Accordingly, the court finds a fair, just and reasonable "sales figure" value of the sculptures based on the evidence presented is $52,200. The court also finds based on the testimony of the plaintiff that listing prices for her sculptures typically had a fifty percent, sometimes forty percent, commission built into the sales/listing figure. The court finds that of the $52,200 sales figure that the sculptures would be sold at, the plaintiff would have in the ordinary course received fifty percent of that amount if a sale occurred. (Trial Tr. 3/5/10, p. 99.) Accordingly, the court applies the fifty percent commission to the fair, just and reasonable $52,200 sales figure the court found, and finds that the plaintiff's fair, just and reasonable damages from the four lost and damaged sculptures is $26,100.

IV CONCLUSION

For the reasons set forth above, the court finds that the plaintiff has met her burden of proof as to the sole count of breach of bailment contract and judgment shall enter in favor of the plaintiff in the amount of $26,100.


Summaries of

Semoon v. the Woos. School Corp.

Connecticut Superior Court Judicial District of Danbury at Danbury
Jul 18, 2010
2010 Conn. Super. Ct. 14850 (Conn. Super. Ct. 2010)
Case details for

Semoon v. the Woos. School Corp.

Case Details

Full title:SUK SEMOON v. THE WOOSTER SCHOOL CORP. ET AL

Court:Connecticut Superior Court Judicial District of Danbury at Danbury

Date published: Jul 18, 2010

Citations

2010 Conn. Super. Ct. 14850 (Conn. Super. Ct. 2010)