Is caretaker responsible for replacing entrusted items?

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Dear John,

My friend left a plant for me to take care of while she was out of town. The plant died. Do I replace the plant?

Sincerely,

Herbicidal Herbert


Dear Herbert,

When one person gains possession of another person's property without a transfer of ownership, it is called a bailment.

Some examples of bailment are, borrowing a neighbor's lawnmower, valet parking, leaving a coat at a friend's house and dog-grooming.

The liability that arises as a result of damage to the property depends on the type of bailment created. Sometimes, the liability is limited by law. Other times, liability is increased by law.

In your case, it looks like you were doing a favor for a friend. This type of bailment, where the person receiving property receives no compensation, is referred to as "gratuitous bailment."

In this type of bailment, you would generally be found liable for damage resulting from your gross negligence.

You did not explain what you did or did not do to the plant while it was in your care. Therefore, I do not know whether your actions constitute gross negligence.

While failing to water a water lily might be grossly negligent, the same may not be true for not watering a cactus.

Your knowledge of plants and their care could be a factor the court would consider because a prize-winning gardener would be held to a higher standard of care than someone with a long history of killing plants.

Your friend may have assumed some of the risk when giving you the plant if she knew of your abilities or gave you faulty instructions for the care of the plant.

Similarly, if your friend did not investigate your abilities or offer instruction on the care of the plant, your liability would be lessened.

Depending on the amount of damages requested and the circumstances related to your agreement to take in the plant, you might be able to argue that your friend did not properly inform you of the nature of the bailment.

For example, you would have been willing to care for a common house plant but not a one-of-a-kind hybrid worth thousands of dollars.

There are many things worth arguing over. In my experience, plants are not in that list; this may be from my dealings with house plants more than any other reason.

I acknowledge there are always exceptions to this rule. It may be less bother to replace the plant than it would be to fight about it and lose a friend.

In light of passage of Initiative 502 and the unresolved legalities surrounding marijuana, I would like to caution that the above information does not apply to all plants.

Sincerely,

John

John Hartzell is a practicing Walla Walla attorney. No attorney-client relationship is established via this column, which is for educational purposes only and is not intended as legal advice. Any information given is to illustrate basic legal concepts and does not state how any court would decide any matter. Have a question? Ask John at askjohn@wwub.com.

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