dissenting.
In this case we are asked to consider the nature and extent of liability of the operator of a commercial “park and lock” parking garage. In making this determination, we must look to the legal relationship between the operator of the vehicle and the operator of the parking facility. The majority opinion holds that a bailment contract has been created, and upon proof of non-delivery Plaintiff is entitled to the statutory presumption of negligence provided in T.C.A. § 24-5-111. I disagree, for I find no bailment existed and therefore the Plaintiff does not receive the benefit of the presumption. Consequently, the Plaintiff had the duty to prove affirmatively the negligence of the operator of the parking facility and this Plaintiff failed to do.
The majority opinion states that “courts have found difficulty with the traditional criteria of bailment in analyzing park and lock cases.” The majority discusses the case of McGlynn v. Parking Authority of City of Newark, 86 N.J. 551, 432 A.2d 99 (1981), which suggests that bailment is an outmoded concept for analyzing parking lot and garage cases. In Garlock v. Multiple Parking Services, Inc., 103 Misc.2d 943, 427 N.Y.S.2d 670, 677, 13 A.L.R.4th, 428 (1980), the court stated that “the ‘bailment theory’ as a basis for recovery in parking lot cases is no longer appropriate.” That court concluded that since the concept of bailment is no longer a viable theory in application to a very real modern problem *291that the proper standard to be followed in such cases is “reasonable care under the circumstances whereby foreseeability shall be a measure of liability.” Id. 427 N.Y.S.2d at 678.
Even though some courts now suggest that the theory of bailment is an archaic and inappropriate theory upon which to base liability in modern park and lock cases, the majority opinion states that “Tennessee courts generally have analyzed cases such as this in terms of sufficiency of the evidence to create a bailment for hire by implication,” and concludes that this is “the most satisfactory and realistic approach to the problem.” I do not disagree with the longstanding use of the bailment analysis in this type of case. I do disagree, however, with the majority’s conclusion that a bailment for hire has been created in this case.
The record shows that upon entering this parking garage a ticket, showing time of entry, is automatically dispensed by a machine. The ticket states that charges are made for the use of a parking space only and that the garage assumes no responsibility for loss to the car or its contents. The ticket further states that cars are parked at the risk of the owner, and par-kers are instructed to lock their vehicles. The majority opinion points out that it is not insisted that this language on the ticket is sufficient to exonerate the garage, since the customer is not shown to have read it or to have had it called to his attention. Savoy Hotel Corp. v. Sparks, 57 Tenn.App. 537, 421 S.W.2d 98 (1967). The ticket in no way identifies the vehicle, it is given solely for the purpose of measuring the length of time during which the vehicle is parked in order that a proper charge may be made.
In this case Mr. Allen, without any direction or supervision, parked his car, removed his keys, and locked the car and left the parking garage having retained his ignition key. The presentation of a ticket upon exit is for the sole purpose of allowing the cashier to collect the proper charge. The cashier is not required to be on duty at all times. When no cashier is present, the exit gate is opened and no payment is required.1 As the majority opinion states, the ticket is “not given for the purpose of identifying particular vehicles.” The ticket functioned solely as a source of fee computation, not of vehicle identification.
The majority opinion states: “[W]e do not find the facts of the present case to be at variance with the legal requirements of the concept of a bailment for hire.” I must disagree, for I feel the facts of the present case are clearly at variance with what I consider to be the legal requirements of the traditional concept of a bailment for hire.
Bailment has been defined by this Court in the following manner:
The creation of a bailment in the absence of an express contract requires that possession and control over the subject matter pass from the bailor to the bailee. In order to constitute a sufficient delivery of the subject matter there must be a full transfer, either actual or constructive, of the property to the bailee so as to exclude it from the possession of the owner and all other persons and give to the bailee, for the time being, the sole custody and control thereof. See Jackson v. Metropolitan Government of Nashville, supra, Scruggs v. Dennis, 222 Tenn. 714, 440 S.W.2d 20 (1969); Old Hickory Parking Corp. v. Alloway, 26 Tenn.App. 683, 177 S.W.2d 23 (1944). See generally, 8 Am.Jur.2d 960-61.
In parking lot and parking garage situations, a bailment is created where the operator of the lot or garage has knowingly and voluntarily assumed control, possession, or custody of the motor vehicle; if he has not done so, there may be a mere license to park or a lease of parking space. See, e.g., Lewis v. Ebersole, 244 Ala. 200, 12 So.2d 543 (1943); Southeastern Fair Association v. Ford, 64 Ga.App. 871, 14 S.E.2d 139 (1941).
*292Rhodes v. Pioneer Parking Lot, Inc., 501 S.W.2d 569, 570 (Tenn.1973).
From its earliest origins, the most distinguishing factor identifying a bailment has been delivery. Our earliest decisions also recognize acceptance as a necessary factor, requiring that possession and control of the property pass from bailor to bailee, to the exclusion of control by others. The test thus becomes whether the operator of the vehicle has made such a delivery to the operator of the parking facility as to amount to a relinquishment of his exclusive possession, control, and dominion over the vehicle so that the latter can exclude it from the possession of all others. If so, a bailment has been created.
When the automobile began replacing the horse and buggy, our courts allowed bailment law to carry over and govern the parking of vehicles. In cases such as Old Hickory Parking Corp. v. Alloway, 177 S.W.2d 23 (Tenn.App.1943), and Savoy Hotel v. Sparks, 421 S.W.2d 98 (Tenn.App.1967), where the operator of the vehicle left his vehicle with an attendant and left the keys for the attendant to move the vehicle as he wished, the bailment relationship was evident for we had a clear delivery, acceptance of possession, control, and exercise of dominion over the vehicle—all the traditional elements of a bailment. In Dispeker v. New Southern Hotel Company, 213 Tenn. 378, 373 S.W.2d 904 (1963), a bellboy parked plaintiffs car, plaintiff retained the keys but explained to the bellboy that the car could be operated without the key, and apparently showed him how to operate it. The bellboy went off duty, then returned and stole the car. Once again, the traditional elements of delivery and control were present.
These cases involving parking attendants and personalized service have caused us no problems. The problem arises in this modern era of automated parking, when courts have attempted to expand the limits of existing areas of the law to encompass technological and commercial advances. Such is the case of Scruggs v. Dennis, 440 S.W.2d 20 (Tenn.1969), relied upon in the majority opinion. In Scruggs, as in this case, the entire operation is automated, with the exception of payment upon departure. The operation bears little, if any, resemblance to the circumstances found in Old Hickory Parking Corp., Savoy Hotel, and Dispeker. Yet the Court in Scruggs, in quoting extensively from the Dispeker opinion, states that “There are some minute differences of fact ...” Id., 440 S.W.2d at 22. As pointed out above, the differences of fact in Dispeker are not minute or so similar as the Scruggs court would suggest. Delivery, custody and control are clearly present in Dispeker. I fail to find such delivery, custody and control in Scruggs or in the case at bar. In Dis-peker, the vehicle was actually taken from the owner by an attendant. I believe the Scruggs court and the majority opinion today attempt to apply bailment law in situations where there is not a true bailment relationship.
The Scruggs opinion was recently cited in a dissenting opinion in Kentucky where the plaintiff entered a six-story, self-parking garage in downtown Louisville. The only employee on duty was the attendant who collected the money from the driver upon exiting. The garage was patrolled three times daily by garage personnel. The Kentucky Supreme Court chose not to follow the Scruggs rationale and held “when a person parks his automobile in a garage by receiving a ticket from an automated machine, choosing his own space and taking his keys with him, the garage is not a bailee and is not liable in the absence of negligence on its part.” Central Parking System v. Miller, 586 S.W.2d 262, 263 (Ky.1979).
The difficulty in these types of cases seems to arise when the traditional elements of bailment are missing and courts must determine whether there is an implied bailment created by implication from the surrounding circumstances and the conduct of the parties. In Jackson v. Metropolitan Government of Nashville, 483 S.W.2d 92 (Tenn.1972), the Court based its opinion on the finding that the Defendants, by their *293conduct, “impliedly promised to use ordinary and reasonable care to preserve the property during the term of the bailment and to return the bail property to complainant on demand or to his order.” Id., at 95.
The majority opinion “recognize[s] that there is always a question as to whether there has been sufficient delivery of possession and control to create a bailment when the owner locks a vehicle and keeps the keys.” The majority finds that “in practicality the operator does assume control and custody of the vehicles parked, limiting access thereto and requiring the presentation of a ticket upon exit.” The majority opinion, as did the Scruggs court, finds custody and control implied because of the limited access and because “the presentation of a ticket upon exit” is required. I cannot agree with this analysis as creating a bailment situation. I do not believe that based upon the fact that a ticket was required to be presented upon leaving, that this factor created a proper basis upon which to find a bailment relationship. The ticket did not identify the vehicle or the operator of the vehicle, as do most bailment receipts. The cashier was not performing the traditional bailee role or identifying and returning a particular article, but instead was merely computing the amount owed and accepting payment due for use of a parking space. I do not believe the Defendant exercised such possession and control over Plaintiff’s automobile as is necessary in an implied bailment.
As recently stated in Merritt v. Nationwide Warehouse Co., Ltd., 605 S.W.2d 250, 253 (Tenn.App.1980), “Such full delivery must be made as will entitle the bailee to exclude the possession of all other persons and put him in sole custody and control.” The full transfer of possession and control, necessary to constitute delivery, should not be found to exist simply by the presentation of a ticket upon exit. In the case at bar, I find no such delivery and relinquishment of exclusive possession and control as to create a bailment. Plaintiff parked his car, locked it and retained the key. Certainly Defendant cannot be said to have sole custody of Plaintiff’s vehicle, for Defendant could not move it, did not know to whom it belonged, and did not know when it would be reclaimed or by whom. Anyone who manually obtained a ticket from the dispenser could drive out with any vehicle he was capable of operating. Also, a cashier was not always on duty. When on duty, so long as the parking fee was paid— by what means could the Defendant reasonably exercise control? The necessary delivery and relinquishment of control by the Plaintiff, the very basis upon which the bailment theory was developed, is missing.
We should realize that the circumstances upon which the principles of bailment law were established and developed are not always applicable to the operation of the modern day automated parking facility. The element of delivery, of sole custody and control are lacking in this case.
I am authorized to state that BROCK, J., joins with me in this dissent.
. Between one or two in the morning and six or seven a.m., the garage is entirely open without a cashier to collect parking fees. During the day if the cashier leaves his or her post on a break, the exit gate is opened and the vehicle owner may exit without payment.