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View Full Version : "We are not responsible..." (Lawyer question)


THespos
10-31-2001, 08:54 AM
I could have sworn that I saw something akin to this question somewhere, but I couldn't find anything with the search function and I can't remember the answer. Here goes...

Many times when I visit stores, I see signs posted like:

"We are not responsible for damage to cars in parking lot."
"We are not responsible for the loss or theft of personal articles."
"We are not responsible for lost money." (Posted on a vending machine)

Okay, fine. The stores are trying to limit complaints and claims against them. I understand that much. But it strikes me as total BS that an entity can legally shrug off responsibility just by posting a sign that says, "We are not responsible..."

Do these declarations protect the stores from legal action at all? Or are they just there so that someone entering KMart might say "Hey, maybe I shouldn't leave that $10,000 in cash on my dashboard" and takes steps to reduce risk? After all, I can't stand on my own property, post signs that say "I am not responsible for my actions," commit various crimes on said property, and then expect to be absolved of all responsibility.

Do these stores derive any legal protection whatsoever from posting signs?

RealityChuck
10-31-2001, 09:02 AM
Some. If sued, their lawyers can argue that the notice absolves the store of liability. However, it would be up to the jury to decide. The plaintiffs would try to argue that this case went beyond what might reasonable be expected.

In other words, if you left money on the counter and walked away, the store would be able to deny responsibility. If one of the employees snatches your purse (and the store knew that employee was prone to that behavior), then the store is in trouble.

kpm
10-31-2001, 09:03 AM
I don't think the signs have any legal meaning. They just put them up to try to convince people not to sue. Any lawyer can tell people whether they can sue or not.

A lawyer told a friend of mine that many of those things are not valid because you cannot give up a right to sue if the event has not yet occurred.

NotMrKnowItAll
10-31-2001, 09:09 AM
I see gravel trucks all the time with a sign on the back stating that they are not responsible for windshield (wind screen) or vehicle damage. This is usually in close proximity to another sign that says "Stay Back 200 ft." Certainly, they are responsible for securing their load, and can't absolve themselves of any liability by merely posting some sign? Is this assumption valid?

lucwarm
10-31-2001, 10:31 AM
I would analyze those signs as "exculpatory clauses."

i.e. They are similar in nature to the language on the back of your baseball ticket that says the park is not responsible if you get hit by a ball.

It would be a question of law as to whether any particular exculpatory clause is enforceable. Sometimes they are, sometimes they are not.

Generally speaking, companies can exculpate themselves for their own negligence, but not for gross negligence or intentional acts.

So if a dry cleaner says "not responsible for damaged shirts," and they intentionally tear your shirt, they're most likely on the hook.

Many courts are more willing to invalidate exculpatory provisions if they are part of "contracts of adhesion" i.e. standard form contracts that are given to a consumer as part of a transaction on a take-it-or-leave-it basis. Clearly a "we're not responsible" sign can be argued to be a contract of adhesion.

Also note that in many cases, the issues in question are regulated by a specific statute. For example, I would not be surprised if New York has a specific statute setting forth the liabilities of parking garages.

lucwarm
10-31-2001, 10:34 AM
Oh, and . . (standard disclaimer about legal advice)

Mr.Zambezi
10-31-2001, 10:38 AM
IANAL but I am a risk manager (insurance geek). The signs do not form a valid contract. They cannot exculpate the poster of the sign from his negligent actions or inactions.

To take the parking lot example, most of the time, the parking lot owner is not responsible for damage done to parked vehicles anyway. So the sign is merely a statement of fact.

But the owner still ows a duty to its business invitees to forewarn them of all hazards which are not open and obvious. For example, if they have a 3 foot deep pothole, and someone damages their car driving into it, the owner will probably be liable.

But in general you can't say "I am not liable for damaging you through my negligence." Unless of course you do so in a valid contract. A simple sign is not a valid contract.

I had clients that hauled gravel. Those signs on the trucks are just to discourage claims. They are still liable for strewing rocks upon the highway.

Whack-a-Mole
10-31-2001, 11:08 AM
To go a little further with parking garage liability:

I often see signs at a parking garage or with valet parkers that say they are not responsible for items left in a car. This always seemed like a license to steal for the garage attendants. Whatever is missing from your car when it is returned isn't their problem so if they happen to pick-up your new cell phone you're just SOL.

Of course, I realize that 'proving' something is often the point on which these things hinge. I suppose if you provided videotape of the attendant stealing your stuff you might have a better case. Beyond that who's to say who stole what? Still, I would think that the garage, by taking your car, must (or should) assume some responsibility for the safety of your car while they have it.


A little anecdote on 'proving' things:

I went downtown Chicago with some friends and parked in a lot that seemed free and clear. I did not notice the sign posted WAY up high on a building that said it was a private lot. When I returned I found my car had been towed and had to go to the ever-lovely pound at 2 a.m. ot get it back. My car, when returned, had huge scrape marks across the roof where the magnetic flashers the towing company used had been scraped across the paint. In addition, my right rearview mirror had been torn off. I complained to the towing company about this and they said that was how they found it. I said 'bullshit' and they said 'prove it'. I might still have managed a case against them but is a $5,000 year+ long court battle worth $800 in damage?

Bricker
10-31-2001, 11:14 AM
If I run a parking lot, and take your $8.50 in exchange for parking your car on my lot all day, we have a bailment. I have a duty of care towards your car.

I think everyone agrees with this - it's a classic example of bailment for mutual benefit.

But -- what if I run a parking lot and post signs saying I'm not charging $8.50 to park there... I'm charging you $8.50 per day to lease space number umpty-frotz; do with it what you will. If you choose to park a car there - fine. But I'm not the bailee; it's you, leaving your property on a space that you've leased. In fact, you are the bailee - you have temporary possession - but not ownership - of my parking lot space.

What do you think? Can I dodge any duty of care that way?

- Rick

kpm
10-31-2001, 11:41 AM
I think many places have specific laws about signs that warn about cars being towed. I know here in NC the signs have to be a certain size and easily visible . If they don't follow those laws they can't tow you.

Recently a very agressive tow truck company was burned out by someone - their office was hit by a fire. I'm sure they had thousands of suspects since many people hated them.

Izzardesque
10-31-2001, 11:48 AM
IANAL but in the UK these statements DO have a legal meaning. Lucwarm had it right in the dry cleaner example. The cannot exclude certain things tho, like death. That is ALWAYS their responsibility. Regarding the insertion of these clauses into standard contracts, it is still possible under certain circumstances. It follows the same rules for any insertion of non-standard clauses into a standard contract. The more unlikely the clause, and to some extent the greater consequences of the clause, the more attention has to be drawn to it by the person drawing up the contract. Lord Denning called this the ‘Red Hand Rule’ in a case where he said the only way he would have allowed the clause to count in the contract was if it had peen pointed out with a big red hand sign!!

Mr. Zambezi, I think you have it slightly wrong about the sing being a contract. The sign itself is not a contract but you can form a contract, and agreement to a contracts terms, through your actions. The sign is an attempt to include that lack of responsibility into whatever contract is formed, and if you read the sign (or reasonably should have read the sign) and still enter the parking lot/use the dry cleaners, then you agree to the contract with that clause incorporated.

Hope this is of some help in US law too

Izzardesque
10-31-2001, 11:51 AM
Originally posted by Izzardesque
Mr. Zambezi, I think you have it slightly wrong about the sing being a contract.


That should read SIGN not sing :)

Mr.Zambezi
10-31-2001, 11:58 AM
Bricker, You are probably right about the bailment situation. AS lucwarm posted, with contracts of adhesion, the court will lean toward the customer because they have no say in the contract language.

Most states have had extensive litigation regarding bailment issues with automobiles. Leasing space creates a fuzzy area. I would argue that it is not a bailment. In fact, it is possible to argue that anything short of valet parking is not a bailment since possession is not transferred. I assume that you do not take the keys and park the cars?

However, you should search your state statute and look for case law on this. Google may give you what you need.

Mr.Zambezi
10-31-2001, 12:04 PM
The sign itself is not a contract but you can form a contract, and agreement to a contracts terms, through your actions

I guess if the sign said "in valid consideration of the use of this parking space, you agree to hold Owner harmless for any and all damage done tou your vehicle. use of the space shall be considered proof of acceptance" then you might argue that you have formed a contract. "we are not responsible" is more of a statement than contract language.

Also, many US states prohibit exculpatory language in contracts that is overly broad and non specific, especially if it is a contract of adhesion.

In general, and I mean very general because state law and circumstances are not defined here, you can't avoid your duties to business invitees with a sign stating "no responsibility" The UK may be very different. Lord knows it is in many other things.

Jodi
10-31-2001, 12:49 PM
My understanding is that generally such signs are pretty close to worthless. Why? Because a party may not unilaterally (on his hor her own) disavow their own liability, if they would otherwise be liable. If two parties have a contract, then either party may vary the terms of the contract (with the other's knowledge and assent, implicit or explicit), including liability for their own negligence. But you can't just say "Not responsible for anything I do! I've posted a sign that effect, and that makes it so!"

So when are such signs worth anything?

1. When they serve as a warning. "Do Not Leave Valuables In Car". "Stay Back 100 Feet". "Use Other Side Of The Street". Your failure to heed such signs may mean you are contributorily (or comparatively) negligent if something happens.

2. When there is a contract between the parties. This can occur in the "parking your car in someone's lot" scenario, but not in the "driving down the street behind a big truck" scenario. If the parties have a contract, then either may vary the terms, as noted above. The question then becomes: Can one vary the terms of a contract merely by posting a sign? I don't think the answer to this is very clear.

For example: In my state, whether or not a bailment is created by parking your car in a lot depends on the circumstances -- specifically, whether you have temporarily surrendered "exclusive control" to someone else. Park your car in an outside, unattended lot, slip some money in a box, take your keys and go? No bailment. Give your keys and car to a valet and go? Bailment. (Because in the former circumstance you have not surrendered exclusive control, but in the latter you have.) But what if, say, the lot has an attendant but you park yourself and keep your keys? What if entering the lot is restricted (by an automatic bar) but exiting is not, and the lot is not personally attended? What constitutes "exclusive control"?

Since this is by no means clear, most parking garages (at least in my city) prominently feature signs advising that no bailment is created by parking there; instead, all you are granted is a "temporary license to park." Such signs then go on to disavow liability for any damage to your car. The question is, Can the lot owner say a bailment is NOT in fact a bailment, merely by posting a sign to that effect? My guess is that they cannot. Whether or not a bailment exists depends on the issue of control, not how the parties construe it. So if you leave your keys with an attendant and therefore have surrendered control of your car, my GUESS is that a sign saying "This Is Not A Bailment" would not vitiate what is, obviously, a bailment.

BUT. Certainly the lot will argue that such signs are part of the contract and that by parking there you agree to the terms of the sign. I think that's a pretty hard argument to make, however. And it does seem from a very cursory search that the courts distinguish between terms printed on your ticket stub (which are part of your contract) and terms printed on a sign (which probably are not). Whether or not that is a totally artificial distinction is of course another subject altogether.

ENugent
11-01-2001, 08:00 PM
I am so pathetic that I read the back of my parking stubs. I have never seen one that did not contain the phrase, "no bailment is created." Maybe that's just a local thing, though. God knows that Bostonians think nothing of parking by Braille, so the garage would be undertaking a pretty big liability if they did have a bailment.

Otto
11-01-2001, 08:46 PM
Damn lawyers, jumping in with the right answer (on bailments) before I get the chance. (mutter mutter grumble)

FYI, parking stubs in Madison also have the "no bailment is created" verbiage on them. Not that I'm so pathetic that I would read the back of a parking stub. In Madison, it's printed on the front.

Princhester
11-01-2001, 11:13 PM
As a rule, I find that exclusion clauses (what you americans call exculpatory clauses) are badly drafted. Often by someone with no legal training, but amazingly often by lawyers who are inept. As soon as I see the words "we are not responsible" I know the clause I am reading is on the fast track to dumbass for reasons others have outlined above. Interestingly (well, OK not that interestingly unless you're a lawyer) here in Australia you have to be careful what you purport to exclude. It is a specific breach of a statute to misleadingly suggest (in certain circumstances) that someone does not have the rights that they do in fact have. Shops have been prosecuted for having signs saying "No refunds" when in fact by law refunds must be given in certain circumstances. "No responsibility" signs could well fall into the same category.

Cliffy
11-02-2001, 10:19 AM
Originally posted by ENugent
I am so pathetic that I read the back of my parking stubs. I have never seen one that did not contain the phrase, "no bailment is created." Maybe that's just a local thing, though. God knows that Bostonians think nothing of parking by Braille, so the garage would be undertaking a pretty big liability if they did have a bailment.

I remember reading a case in my Contracts class in which the court said that liability-limiting language on teh back of a stub was worthless, even though a contract between the parties was valid, because it wasn't reasonable to expect parkers to read the backs of their tickets. Can't remember the jurisdiction -- Ohio, maybe?

--Cliffy, Esq.

Izzardesque
11-02-2001, 10:32 AM
IIRC there is a case (I will try and dig up a cite – as I no longer have anything to do with the law, this may be difficult) in the UK where these signs have been upheld, but as usual in UK law, and just about everywhere else I imagine, only in certain circumstances. Again as usual in the law, this revolves around what is reasonable. It IS reasonable for the car park owners to be responsible for, say, a chunk of the roof falling of and hitting your car. It IS NOT reasonable for them to be responsible for damage caused to your car by other drivers using the car park. Which goes back to my original point and Lord Denning. The more unusual and unreasonable the term that you are trying to insert into the contract, the more attention you have to draw to it. And yes, as you have all mentioned, there are some things which are too unreasonable that they cannot be excluded. I’m off to try and find that damn cite!

Izzardesque
11-02-2001, 10:38 AM
Originally posted by Princhester
Shops have been prosecuted for having signs saying "No refunds" when in fact by law refunds must be given in certain circumstances.

Thats an offence in the UK too

Izzardesque
11-02-2001, 10:47 AM
For a cite on the use of exclusion clauses in the UK see http://deanscourt.co.uk/legal/exclusions.html I think I may have misremembered some points of my contract law. If any of this is in contention to what I have said above- ignore me! :D

Dinsdale
11-02-2001, 12:50 PM
You all did so well on the parking lots, how about a golf course in a subdivision that has a sign saying "Golfer is responsible for any damage to houses." Or how about a car driving past a golf course?

I maintain there is no strict liability. Negligence would have to be a disputable question of fact. Issues such as negligent design and assumption of risk, come into play. Tried to research it once, and was unable to find any clear answer (in Illinois law). Lots of cases of golfers (and spectators) getting beaned, but none of property damage.

If nothing else, another reason NOT to have your name on your golf balls!

Apologies in advance if you consider this an unacceptable hijack.

vandal
11-02-2001, 06:01 PM
Well, there are a few issues that come into play with the golf course scenario.

Having a sign that simply states "Golfer is responsible for any damage to houses" can actually hold the golfer liable. However, I suspect that the golf course would not be in business for a very long time.

Even with that sign in place though, I'm sure most courts would deem that sign impractical. There is in fact an assumption of risk by having your property next to or near that golf course.

There's a also a known danger, in that, it is common knowledge that the product is dangerous. (i.e. you can't sue gun manufacturers because they fall into this "known danger" defense category.)

I'm pretty sure you could even get a lack of proximate cause defense in there. Sure, the golf ball broke your window, but it was the golf course owner's fault for not having a high enough fence.

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