Cars Parked At Owner’s Risk: The Enforceability Or Otherwise Of Such Disclaimers In Law.

By Ezekiel Obioma Ugwueze Esq.

If you have been to hotels or the malls or other public properties where cars are parked, you most likely have come across the inscription, boldly written and usually mounted at strategic points around the parking lot which reads: ‘Cars are parked at owners’ risk.’ It is hard to miss. They slightly vary in wording but the substance is the same.

In simple terms, by this notice, the owners and managers of such facilities are simply exonerating themselves from all liability in the event of a car theft within their premises.

Under the law of strict liability, these institutions would be strictly liable for their action. Under the principle of vicarious liability, a principal is liable for the acts of his agent. This caveat is therefore analogous to killing two birds with a stone as it serves as the foundation these facility owners are laying to exonerate themselves from liability arising from the negligence of their security personnel in the event that parked cars are stolen within their premises. Thus, the caveat is supposedly a defence that absolves and exonerates these institutions from liability of stolen cars within their facility.

It may surprise you to know that 95% of property owners, managers of such properties, and even the security personnel that work in such facilities do not even understand the import of such inscriptions. Most often than not, it is the bandwagon effect that led them to putting up such signage. “We saw it in building A and B, therefore, we decided to put it up in ours too”.

Nothing can be more emotionally disruptive than to hear that one’s car has been stolen. It becomes even more disheartening if it happens within the precinct of a highly fenced or guarded premises where you expected more and yet be told that cars are parked at owners’ risk.

To my mind, these disclaimers are all a bit of a nonsense. The purpose of using them is that they deter a lot of people and it is not unlawful to put them up. It is doubtful however that these disclaimers are enough for property owners to evade all culpability in the event of a car theft within their facility. These notices at best, constitute an alarm bell, cautioning the car owner to provide extra security for his car. The proponents of these view have laboured in vain to show how these serve as

If one is lodging in a hotel, doesn’t the hotel owe such guest the duty of care to look after his car? Is the guest supposed to be sleeping and keeping vigil over his car simultaneously?The writer argues that the hotel is responsible for the safety of the lodger and his vehicle/property such “At owner’s risk” disclaimer irrespective.

For example, if I invited friends over to my house for a party and hung a sign outside that read ‘Wet floor, fall at your own risk” would that simply exonerate me in the event of a fall occasioned by my very own acts? It would obviously be unenforceable. The same rule applies to every other disclaimer and sign.

You cannot in any circumstances disclaim liability for death or personal injury. Therefore your sign is completely unenforceable. It is not unlawful to put it up there though and it will forewarn people about the dangers of a slippery floor but if they went to court, it would be void. You can seek to disclaim liability for things like damage to property but even those signs are subject to a reasonableness test.

Take another example, if I hung a sign outside my house that reads ‘Beware of dogs’ and for whatever reason my dog attacks and mauls someone, will I be exculpated simply because of such caveat? Of course I am liable. If a person is injured upon a hazard that you plainly should have resolved or mitigated, you are liable whether you have disclaimers there or not.

Let us not rule out the legal principle of vicarious liability. In layman’s understanding, vicarious liability simply means for the the principal to be held responsible for the actions of his agents. Vicarious liability can apply anywhere. There are no rules to prohibit it from applying in a car park. You can be vicariously liable for the actions of your agents and employees in any circumstance while they act at your direction.

The salient question then is, “who should be held responsible in the event of a car theft while the owner is still within the premises of a property?

The legal principle of negligence which this caveat falls under in law was explained in Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (Pt. 1172) 67 as an omission or failure to do something which a reasonable man, under same circumstance, would do or the doing of something which a reasonable and prudent man would not do.

Who is a reasonable man in law? The court answered this question in U.I.T.H v. Dr Abegunde( 2013) LPELR 21375 (CA) thus: a reasonable man mean a person who acts sensibly, does things diligently and takes proper but not excessive precaution”.

In essence, the tort of negligence arises when a legal duty owed by the defendant to the plaintiff is breached and consequently resulting to injury wherefore the injured person can claim damages against the defendant who caused him injury owing to the breach of duty of care. Therefore, the following ingredients must be present for an action for negligence to succeed:

1. That the defendant owed a duty of care

2. That the duty of care was breached and,

3. That the plaintiff suffered damage/injury arising from the breach.

Applying the above principle to the caveat “cars are parked at owners’ risk”, once the three conditions aforementioned are satisfied, the position of law is that the claimant can successfully claim damages, under principle of negligence, against the defendant, that is, banks, hotels, malls, schools and other institutions that has such parking lots for his stolen vehicle within the precinct of the defendant.

Furthermore , in Anyah v. Imo Concord Hotels Ltd (2002) 12 SC (Part. II), the Supreme Court Per U. A. KALGO, JSC opines: “But where, for example, a visitor who came through the hotel gate was given a plastic or metal disc and he parked his car in the hotel park, locked it up, gave the keys to the hotel security men and drew their attention to where he parked the car, there may arise a duty of care on the part of the security men to ensure the safety of the car.” Note well, the enforceablity of the “Cars parked at owner’s risk” caveat was resolved in favour of the hotelier. While this remains the law, the writer argues that the apex court arrived at this verdict per incuriam.

The writer also argues that in a situation like the above, which is akin to what happens most times within the premises of hotels and lounges, a duty of care has arisen between a car owner and the hotel security man in which case the principle of vicarious liability sets in and thus makes the hotelier vicariously liable in the event of theft or damage to the car. This invariably means that cars may not always be parked at the owner’s risk.

There are public facilities across the country that operate the “Pay Parking Policy’. That is, younger billed for parking in the spaces provided by the parking. Places like the Hilton’s Abuja, the FCT High Court Head Quarters, Abuja, The Palms Oniru, Lagos to mention but a few. Curiously, these facilities still put up the caveat around their premises even though the car owner still pays for parking.

It is unknown to the writer if such a situation of car theft has occurred within a facilty that operates the Pay Parking Policy and tested in the law courts. However, the writer argues that such disclaimers should not and cannot hold water especially as a duty of care is owed to the victim by the property owner or its agents by virtue of the financial benefits accrued which should have attendant obligations to be fulfilled on the part of the facility managers.

In summation, if you find yourself in such situation, don’t feel helpless simply premised on such decorative disclaimers. The courts remains the final arbiter.

Always have it at the back of your mind that for every social action, there is a legal interpretation.

©️ Ezekiel Obioma Ugwueze Esq. writes from Abuja and can be reached via ugwuezeezekiel@gmail.com.

DISCLAIMER
This is a legal opinion arising from the writer’s convictions. The above does not in anyway constitute legal advice. You’re advised to consult a lawyer and specifically request legal advice if you require one. Reliance on any of the views expressed in this write’up is abstract and entirely at your own risk.