Before you park that car … – Punch Newspapers
What we usually see almost everywhere we go, whether in offices, hospitals, churches, mosques, cinemas and banks, among others, is the inscription “cars or vehicles are parked at risk. and perils of the owner â. By this notice, the owners and managers of establishments are exempt from any liability in the event of theft of a car or vehicle on their premises. Therefore, it is necessary to ask or question the applicability or otherwise of such disclaimers or notices. Black’s Law Dictionary describes a disclaimer as a waiver of a legal right or claims. On the other hand, enforceability is the ability to perform something under the law. The question of strict liability comes to play in this speech to link the relationship between the motorist and the owner of the place where such a vehicle is parked.
What is strict liability? In both civil and criminal circumstances, it exists when a defendant is liable for committing an action regardless of intent or mental state at the time of committing the action. For example, the legal implication of keeping wild animals in the home is that they have the potential for vicious and unpredictable behavior that can cause significant damage to people and property. If someone owns a wild or exotic animal and causes damage to another person or their property, the owner is liable for the damage. Under the Strict Liability Act, owners would be strictly responsible for their actions. Likewise, a security guard charged with monitoring vehicles parked in their jurisdiction tends to be guilty of a breach of security, under the principle of vicarious liability. When we talk about vicarious liability, it means that employers are liable for the crimes committed by their employees in the course of employment.
It is well established in law that the principal is responsible for the acts of the agent. This argument therefore minimizes the position of facility owners, who are exempt from liability arising from the negligence of their security personnel in the event of theft of vehicles parked on their premises. In most cases, it has been found that property owners, property managers and security personnel do not seem to understand the scope of these warnings they are waving. What they do is just ‘copy and paste’ what they have seen elsewhere in what can be described as the ripple effect, which Investopedia calls the psychological phenomenon by which people do. something or behave in a certain way, mainly because others do it regardless of their own beliefs, which they may ignore or override. The truth is that nothing can be more destabilizing, painful and emotionally disruptive than learning that your car has been stolen simply because the “host” did not do what was necessary in securing the property rightfully in his custody or his guard.
Why is this so? For a lawyer, Ezekiel Ugwueze, âThese notices are at best a wake-up call, warning the car owner to provide additional security for his car. Supporters of this point of view have worked in vain. If you stay in a hotel, doesn’t the hotel have a duty to take care of their car for such a client? Is the guest supposed to sleep and watch their car at the same time? Therefore, your sign is totally inapplicable. You can seek to disclaim all liability for things like property damage, but even these signs are subject to a reasonable test â. A reasonable test is to ask whether a person’s decision is rational, legitimate, and designed to remedy a certain problem in the circumstances of the day. The Court of Appeal shed more light on this point in University of Ilorin Teaching Hospital v. Dr. Dele Abegunde (2013) LPELR 21375 (CA), where the reasonable man is defined as âa person, who acts with discernment, does things diligently, and takes appropriate, but not excessive, precautionsâ.
Another lawyer, Emmanuel Oti, however, agrees that such disclaimers intelligently exonerate managers and facility owners from any liability in the event of car theft as these signs are warnings and ignoring red alerts implies that the owner or manager would not be responsible. when something is wrong, but if the car theft in a particular location has become a recurring decimal and there are records of repeated occurrences, then the hotel management can be held responsible as a repetition suggests that something more than ordinary is happening, argues Oti. My humble opinion, as well as Ugwueze’s, is that these warnings are really not enough to keep owners from guilt in the event of car theft under their watch.
As mentioned earlier, when talking about strict liability, the same principle also applies so that the owner, who places the warning; “Cars or vehicles are parked at the risk of the owner” is negligent in performing the expected duty to vehicle owners.
Negligence is any act or omission that does not meet the standard one would expect of a “reasonable man”. Important ingredients that constitute negligence include duty of care, breach of duty, and injury or damages. The legal principle of negligence, which covers this caveat under discussion, was explained in the Supreme Court of Nigeria case Diamond Bank Limited v. Partnership Investment Limited (2009) 18 NWLR (Pt. 1172) 67, such as an omission or failure to do something that a reasonable man, under the same circumstances, would do or doing something, that a reasonable man and careful, would not. Therefore, applying the above principle to the warning “cars or vehicles are parked at owner’s risk”, it is safe to say that once the above conditions are met, the position of law is that the Plaintiff can successfully sue for damages, under the principle of negligence, against the defendant, who are the facility managers or owners.
Relying on the famous Justice KO Anyah (Appellant) v. Imo Concord Hotels Limited and ORS (Respondents), 2002, which was decided by the Supreme Court of Nigeria, where the Court held that âthere is no doubt that negligence is a tortious nature, and a man can have a duty to another even if there is no contract between them. But a breach of contract can give rise to a formal action for negligence. In the present case, there is no doubt that the loss of the appellant’s car cannot be attributed to an act of negligence on the part of the respondents having regard to the manner in which they carried out their duties on one fateful day and to the relationship of the parties as it was related above in this judgment, no obligation of diligence can be imputed to them. If it is said that the respondents left the gate unattended and the car was driven through the gate, there may be prima facie a duty of care owed to the appellant â.
Although the judgments were rendered in the two cases differently with regard to negligence. Without prejudice to the judgments of the Supreme Court, what is essential is that the mere posting of disclaimers may not hold water, especially when all the ingredients of negligence have been successfully proven against them. managers of erroneous establishments. As observed by Hon. Judge IF Ogbuagu (JSC) in the cited case of Diamond Bank Limited v. Partnership Investment Limited, âNeglect is a fluid principle, which must be applied to the most diverse conditions and problems of human life. Negligence is a question of fact, not of law. Therefore, each case must be decided in the light of its own facts and circumstances, so that the facts of a case bordering on negligence must be proved by the person, who asserts them “in tandem with the principle of secular law. and established that “He who asserts must prove”.
When we find ourselves in such circumstances, should we be afraid? No. The tribunal remains the last arbiter. In the meantime, it is important to specify that this situation should not be confused with the presence of the âno parkingâ sign, which restricts the parking of vehicles when they can either obstruct the view of other road users, or constitute a a danger to them. Finally, it makes sense to say that organizations that have a duty of care should discharge it without preventing anyone from being security aware. We need to ensure that our vehicles are properly locked and that premises owners are properly informed of vehicles parked on their premises. As it stands, it can be safely said that the purpose of the use of parking warnings by facility managers is to deter people from being careless with their property and to avoid putting a undue pressure on facility owners. So, before you park that car or vehicle, what should easily come to mind is the warning from the Dutch philosopher, Desiderius Erasmus, a great scholar of the Northern Renaissance that “prevention is better than cure”.
Dr Kupoluyi wrote from Federal University of Agriculture, Abeokuta, Ogun State.
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