By the "tacit agreement test," the plaintiff must prove more than the defendant's mere knowledge that a breach of contract will entail special damages to the plaintiff. It must also appear that the defendant at least tacitly agreed to assume responsibility.
A coin collector was unable to locate enough safety deposit boxes to store his valuable coin collection. The bank was moving into a new building where it would have new boxes. A bank employee promised to immediately notify him when the boxes were available. Unknown to the collector, new boxes became available on August 30. On September 4, a thief stole a portion of the coins. The collector brought an action against the bank for negligently failing to inform him that the boxes were available. The bank stated that there was simply not enough time to inform the collector. The trial court granted the bank a summary judgment of no liability holding that the bank was not negligent in failing to immediately inform the collector that it had safety deposit boxes available.
Should the bank be liable to the collector for the stolen coins?
The Court affirmed the summary judgment of the lower court. The court reaffirmed the "tacit agreement test," and held that a plaintiff must prove more than the defendant's mere knowledge that a breach of contract would entail special damages to the plaintiff. It must also appear that the defendant at least tacitly agreed to assume responsibility. The court concluded that the bank must not only have knowledge of the special circumstances, but such knowledge must have been brought home to the bank that it knew that the collector expected reimbursement for his lost coin collection.