How do I file a suit against a car dealership and their tow company for damages to my vehicle?

Full Question:

How do I file a suit/judgment against a car dealership and the dealership's towing company due to damages of my vehicle as well as unauthorized use of my vehicle while in their possession? The damages were noted by me when I came to retrieve my vehicle at the dealership.
02/26/2009   |   Category: Personal Property   |   State: Texas   |   #15371

Answer:

Generally, when a person suffers damages to personal property due to the lack of care of another, it may give rise to a tort claim. Auto accidents are governed by negligence principles in tort law. In order to show a party is liable due to negligence, it must be shown the party had a duty to use care, carelessness breached that duty, and such carelesness was the cause of the foreseeable harm to the plaintiff.

A tort lawsuit is started by filing a complaint in the court located where the defendant resides, conducts business, has consented to be sued, or where the accident occurred. A copy of the complaint must be served on the defendant(s) so they may have an opportunity to defend against the claim. In deciding who to name as parties to a lawsuit, the palintiff must have a reasonable belief that the named party may be liable on the claim. An employer may be held liable for acts of their employees done in the course of their employment under the legal theory of vicarious liability. However, intentional wrongful acts of employees are typically outside the scope of employment, and the employer is typically not liable. In the case of an independent contractor, the vicarious liability theory doesn't apply, so the independent contractor is typically named as a separate party.

When a person who is not a landlord agrees to hold property for another, a bailment is created. When the person holding the property, called the bailee, is not being compensated, it is called a gratutous bailment and the bailee must use reasonable care to protect the property.

There are different types of bailments- "bailments for hire" in which the custodian (bailee) is paid, "constructive bailment" when the circumstances create an obligation upon the custodian to protect the goods, and "gratuitous bailment" in which there is no payment, but the bailee is still responsible. There is a lower standard of care imposed upon the bailee in a gratuitous bailment, and the parties may contract to hold the bailee free from liability in any bailment. As the law of bailments establishes a lower standard of care for the bailee in a gratuitous bailment agreement, such an agreement or receipt should indicate explicitly that the bailee is acting without compensation. When a bailment is for the exclusive benefit of the bailee, the bailee owes a duty of extraordinary care. If the bailment is for the mutual benefit of the bailee and bailor, the bailee owes a duty of ordinary care. A gratuitous bailee must use only slight care and is liable only for gross negligence. To create a bailment, the alleged bailee must have actual physical control with the intent to possess. Physical control and intent to possess will be interpreted according to the expectations of the parties. If a court thinks that liability would be unexpected or unfair, it can usually find that the defendant did not have “physical control” or “intent to possess.” For example, courts are more likely to find a bailment of a car exists in a garage with an attendant than in a park and lock garage.