Bailment, Not Replevin, is The Potential Cause of Action When Seeking Return of Property Validly Seized and Retained by the State

Voellinger v. Dow, 420 N.J. Super. 480 (App. Div. 2011).  In this case, the State seized property pursuant to a valid warrant in 1985.  Not until 2007, when the property became potentially relevant to another litigation, did the property owner seek the return of that property.  By that time, the State could no longer locate it.  The property had either been lost or destroyed.  Plaintiffs, principals of the company from whom the property was seized, sued the State on theories of negligence and conversion.  Both parties moved for summary judgment.

The motion judge granted the State’s motion, holding that plaintiffs’ only potentially valid claim was for replevin, but that the suit came too late.  Alternatively, the judge ruled, if a negligence claim were available, it was barred by laches.

The Appellate Division, in an opinion by Judge Fisher, affirmed, but on different grounds.  Replevin was not available to plaintiffs because that cause of action requires either an unlawful detention of property in the first instance or an unlawful retention of that property thereafter.  Plaintiffs conceded that the original taking of the property was pursuant to a lawful warrant, and plaintiffs never challenged the detention of the property until 2007.

Judge Fisher concluded that the relationship created by the facts was a bailment.  Specifically, the State was a gratuitous bailee, since the State was not being paid to house the property as a warehouseman would be.  Gratuitous bailees can be liable only for gross negligence.  Since there was no evidence as to how the property was lost or destroyed, no finder of fact could find gross negligence by the State.  Accordingly, the decision below in favor of the State was affirmed.