Each time I go to any public place and see the signage “Vehicles parked at owners’ risk” or “properties kept at owners’ risk”, I always wonder why the signage, especially when security men are parading the premises and moreover when the vehicle owner has also paid for the parking space.
The incident that really hit home was my experience at First Bank, Matori, Lagos. I had gone to the bank with an umbrella as it was raining. The security personnel asked I should keep my umbrella in a place close to the entrance.
As I kept the umbrella and looked up, I saw an inscription saying ‘properties kept at owners’ risk’. Looking at the security personnel, I asked him if my umbrella was not safe there. He said that he would not be held responsible if anything happened to it.
If they cannot guarantee the safety of my property, why was I told to keep it there? Many people have raised this issue with us before and we have interviewed concerned professionals on it, including the Director, Public Affairs, Consumer Protection Council, Mr. Abiodun Muyiwa, but we have an article by a legal analyst which answers most of the questions that people have raised on the issue and states the position of the law in this matter.
Nothing drives one nuts than to hear one’s car has been stolen within the precinct of a highly fenced hotel premises and yet be told that cars are parked at owners’ risk. This inscription is in law known as caveat and it’s usually written on the wall of many banks and hotels premises, and host of other similar institutions. Unlike under the law of strict liability where these institutions will be strictly liable for their action as well as the principle of vicarious liability which makes a principal liable for the acts of his agent, this caveat more often than not serves as basis of exonerating the hotels, banks etc for the liability arising from the negligence of their gatekeepers in the event that parked cars are stolen within their premises. Hence, the caveat is a defence that absolves and exonerates these institutions from liability of stolen cars within their premises.
Obviously, many had wondered why many institutions including those with parameter fences always inscribe this in their open walls and insist on not being responsible or liable for the loss of cars stationed in their premises by their customers. But then, the law cannot be more reasonable than this and I will explain why. I know you must be curious to know why law supports this caveat, particularly when some of these institutions sometimes have heavy security presence in their precinct. Relax and follow me as I explain to you why, when and when not the law supports these institutions as well as how you can shift the liability to them instead. But before I explain how you can be absolved of this liability, I’ll first of all examine the principle of law under which the caveat falls.
In law, this caveat falls under a principle called negligence. Negligence as held in Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (Pt. 1172) 67 connotes 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. What thereafter comes to mind is who is a reasonable man capable of committing negligence? In U.I.T.H v. Dr Abegunde( 2013) LPELR 21375 (CA) the court answered this and held thus: a reasonable man mean a person who acts sensibly, does things diligently and takes proper but not excessive precaution. In essence, the principle of negligence is to the effect that tort of negligence arises when a legal duty owed by the defendant to the plaintiff is breached and consequently resulting to injury. That is the injured person (the plaintiff) can claim damages against the defendant who caused him injury owing to the breach of duty of care. This being the case, the law is that before anyone can bring and succeed in an action for negligence the following ingredients must be fulfilled: one, that the defendant owed him a duty of care, two, that the duty of care was breached: three, that the plaintiff suffered damage/injury arising from the breach.
Applying this principle to the caveat “cars are parked at owners’ risk”, once the above three conditions are satisfied, the position of law is that the plaintiff (motorist or car owner) can successfully claim damages, under principle of negligence, against the defendant (banks, hotels, institutions etc) for his stolen vehicle within the precinct of the defendant. However, where any of these ingredients is missing, consequently, the law in Nigeria as held in Anyah v. Imo Concord Hotels Ltd (2002) 12 SC (Part. II) is that whoever parks his car within the premises of any institution where this inscription is boldly written do so at his own peril. To this end, “cars are parked at owners’ risk”.
However, it is a settled principle of law that to every general rule there is always an exception and this also applies to this caveat. In the case of Anyah v. Imo Concord Hotels Ltd (Supra) the Supreme Court offered situations when cars may not be parked at owners’ risk. Let me put the words straight as aptly set forth by Per U. A. KALGO, Justice of Supreme Court when he said: “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.” In summary, the only seeming exception is when duty of care exits 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 view of this, the only circumstance that seems to fall within the purview of the exception espoused by the learned justice is as explained above. The rationale being that the hotel itself has its own properties to protect, and cannot be said to owe duty of care to motorists or car owners owing to the presence of security men in its premises. Accordingly, the hotel disc is only to enable the institutions to regulate the number of cars in their premises at any time, and if the discs are exhausted, no vehicles are allowed in as that indicates that no more parking space available.
Above all, any motorist or car owner who wishes to be absolved of the liability of cars are parked at owners’ risk must do the following. One, collect a metal/plastic disc at the gate; two, parked his/her car within the premises of the institution; three, notify the security man/men where the car is parked and four, hand over the key to the security man. Where all these are done, there arises a duty of care which lay the car’s safety on the institution. In the event that the car is stolen, the institution will be liable and the car owner shall be absolved of the liability of ‘cars are parked at owners’ risk’.
Source: *NaijaLegalAnalyst*
