Everyone that has a car or rides in a car should have seen this sign that is always conspicuously placed in parking lots or parking spaces ‘cars parked are at owners’ risk’ and you may be wondering what are the are the legal implications of this sign, what if something goes wrong with your car; it gets damaged, burgled or the whole car stolen at the parking lot who will be held accountable. You might have even been in this kind of situation before; what’s the legal implications of the sign; who pays for the damages, what are your rights and remedies at law in this circumstance, who do you sue to recover damages, do you even have enforceable rights or remedies at law?
On 19th of December1986, Justice K.O Anya (rtd) traveled to Owerri for a book launch. When he got to Owerri he checked into a hotel called Imo Concorde Hotel, a renowned hotel in Owerri, Imo State.
When it was time for him to leave the next day, been the 20th of December 1986, he discovered that his car; Pequot 505, AC salon he came to the hotel with had been stolen from the hotel premises where he parked it the previous day.
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He decided to sue the hotel management. So he took the hotel management to court, joining the two securities on duty the day he checked and the day his car was stolen to the suit, on the grounds that the respondents were negligent by allowing his car to get stolen. He prayed the court to grant him damages, total damages of N150,000.00; N65,000.00 being a special damages as the current value of his Pequot 505 salon car.
The trial court decided in his favour held that he had a right to action and can recover damages from the hotel which he checked in and his car was stolen and that the defendants are in breach of duty of care which they owed to the plaintiff and consequently are liable to the plaintiff for the loss of his said car so damages was awarded to him.
The hotel management, displeased with this ruling of the trial court, went on appeal. The appeal court reversed the ruling of the trial court holding that he had no right of action against the hotel that his car was stolen from.
Justice K.O. Anya then appealed to the Supreme Court since the decision that the trial court held in his favour was reversed by the Appeal court.
The Supreme court upheld the decision of the court of Appeal and held that Justice Anya cannot recover damages for his stolen car from the hotel. The Supreme Court in its Obiter Dictum stated that the general principle is that the tort of negligence only arises when a legal duty owed by the defendant to the plaintiff is breached and to succeed in an action for negligence, the plaintiff must prove by the preponderance of evidence or the balance of probabilities that;
(a) the defendant owed him a duty of care
(b) the duty of care was breached
(c) the defendant suffered damages arising from the breach~ PER A. KALGO, JSC.
The Supreme Court also went further to state that it is a generally accepted principle of negligence that a person only owes a duty of care to his neighbour who would be directly affected by his act or omission.
The question now is ‘who then is your neighbor?
In old case Donaghue v. Stevenson, Lord Atkin provided an answer to the above question that your neighbors (in law) are persons who are so closely and directly affected by your act that you ought to reasonably have them in contemplation as to be affected when you are directing your mind to the acts or omissions which are called in the act in question.
To this effect, the parking facility of a hotel, church, airport, restaurant, supermarket, etc is a gratuitous service given to users of that place and in the absence of express agreement the securities or the management of the parking lot has no legal duty or obligation to provide security for the cars parked in their space hence cannot be held for negligence if anything goes wrong with the car as it is just a moral obligation for them to look after your car and not a legal obligation.
By the reason of this Supreme Court judgement in the case of K.O. Anya V. IMO Concorde Hotel, the sign ‘car parked are at owner’s risk’ is an express and open caveat to everyone that the security men guarding the parking lot owe you no legal duty or obligation to make sure your car is safe neither can they or anyone else be held responsible for negligence if anything goes wrong with your car.
Be it as it may, as it is said that in every general rule there must be an exception, there’s also an exception to this caveat ‘car parked are at owner’s risk’. When you park your car and give the car key to the security men guarding the parking space or the management of the parking space and you draw their attention to where your car is parked, then there may arise a duty of care which places a legal duty and obligation on the management and security of the parking space to make sure your car is safe and secure. If anything goes wrong with your car at that instance you can sue the management of the parking space for negligence and recover damage as they are in breach of duty of care owed to you.
Therefore, if you want to hold the management and security men of a parking lot of a hotel, church, restaurant, supermarket, airport, market, mosque, offices, etc , accountable if anything goes wrong with your car then you must drop the car key with them, and draw their attention to where the car was parked.
I think many organizations are taking the fact that there are no expressed agreement of duty of Care such as what you pointed out in the case of “car parked at owners risk” to behave recklessly or employe(non experience) workers on delicate positions.
In my thinking., I feel these rule has to be expended to give clients(customers) some reassurance or even some degree of protection.
Take for instance a passenger boarding a young shall grow bus going to Lagos from port harcourt and involved in a fatal accident and because the company understands they may not be liable in cases of accident to the passengers.
They employ anybody without due diligence to mount there vehicle (since it makes economic sense to save cost) and if unfortunately, there is an accident you cannot prove in legally that the company has to pay for damages even if there are serious fatalities and even death.
“Because, in the advise of your legal counsel the bus company did not express a contract for such compensation in cases of accidents”.
This is a real life case!!
For me it’s not just terrible but also troubling and customers should take note that these kind of frauds exits in Nigeria and only patronize firms that have EXPRESSED CONTRACTS written on there boarding ticket in cases of transportation companies.
Should there be cases of accident that result to serious injuries, disabilities and even death.
Except you wish to gamble with your life and those of your loved ones that may suffer if you sustain injuries/disability/handicap or even death worsen if you are the breadwinner of the family..
So it’s a serious point to consider because, as it stands now. If you have to patronize any business in Nigeria there have to be stated agreements in terms of eventualities for who is liable, and to what extent and compensations thereof.
I think it should be natural and customer friendly for businesses like hotels to take care of their customers’ properties. It builds trust confidence and attracts more patronage.
The reason I feel many take the approach of the caveat is the unwillingness to spend effort and resources to protect the assets thus increasing their expenditures.
Will the customer be willing to spend extra to protect their cars and other properties while using our facility?
Well I feel it will be an attractive idea for business to put in the add-on of building customers’ trust.
Thanks Prof for this insightful article.
I have always wondered if that notice “Cars Parked at Owner’s Risk’ can hold water at Law Court.
Your post has helped me understand the stand point of the law and the condition under which the management can be successfully sued.
Great post @ Stanley Nnamdi Alieke ESQ.
Can I ask, what if it is a pay to use car park? Can damages be sort in that case for negligence even if one does not hand his keys over to them? I’m thinking when payment is involved, it becomes a service and not just a moral obligation; and so, they have a duty of care in that instance. I’d be grateful for your thoughts on this. Thanks.
Yes. I reckon that with a pay-to-use car park, the plantiff can establish that the management owed him a duty of care. I beg to draw parallels with what obtains in medicolegal cases.
In a medical emergency occuring out-of-hospital (e.g on the expressway), duty of care isn’t owed by a doctor who stops by to attend to the patient and such doctor is protected by malpractice suits in the event that complications arise.
However, if the doctor accepts any form of compensation from the victim in cash or kind, a duty of care is owed and malpractice claims can be made in a court.