Park at your own risk: Who is liable for stolen car?

JUSTICE of the Court of Appeal Kalu Anyah travelled from Arochukwu to Owerri for a book launch and decided to spend the night in a nearby hotel.

Anyah drove into Imo Concorde Hotel, where security men on duty issued him with a plastic disc labelled 102 at the entrance. He then parked his car in a space provided by the hotel.

Despite the signpost that read, ‘owners park at their own risk,’ Anyah locked his car and put the keys into his pockets. He then proceeded to retire for the night into the room allocated to him.

The following morning, Anyah checked out of his hotel room at about 7.00 AM, walked down to the parking lot to get his car, but his car was gone.


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 He reported to the hotel management and an investigation was ordered into the theft, but it yielded no result.

The lawsuit that ensued afterwards would be known across Nigeria as Anyah v. Imo Concorde Hotels Limited & Ors. Anyah filed an action against the hotel, claiming compensation for the value of his stolen car and other expenses he had incurred as a result.

The hotel management, however, argued in court that the parking facility was merely a service rendered to customers and did not imply a guarantee of safety for their cars, especially with the presence of a notice that cars were being parked at owners’ risk.

Anyah’s case is similar to several arguments that have ensued among individuals, hotels and some corporate entities, especially in places like the Federal Capital Territory (FCT) for several years. When cars are parked within the premises of an organisation, are they still at owners’ risk?

A report has estimated that about 2,544 vehicles have been stolen across the country between 2013 and 2015, and the steady rise in vehicle theft in Abuja has resulted in extra measures by car park authorities to exonerate themselves of liability that may arise from vehicle damage or theft within their premises.

One of such measures is the inscription of a notice often displayed at public car parks, that cars are parked at owners’ risk.

Whether or not the caveat absolves an institution of liability arising from cars stolen or damaged within their premises, the issue has remained a topic for debate by car owners, most of whom are unsure of its legality.

As the arguments continue to unfold, The ICIR examines the position of the law on the caveat of cars being parked at owners’ risk.

A legal practitioner Franklin Okeke, in an article, said parties to a contract were free under the law to exclude obligations arising from their transactions through the use of an exclusion or limitation clause.

“Exclusion and limitation clauses are binding on parties as there is a general presumption of intention on contractual terms,” it read.

Thus, the caveat “cars are parked at owners’ risk” is a clause that excludes the obligation that ordinarily should be binding on authorities at public car parks.

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In a phone conversation with The ICIR, a Senior Advocate of Nigeria (SAN) Olusina Sofola explained that while the law might generally hold an occupier liable for damage done to a licensee’s property, putting up a notice that could be spotted easily by a reasonable person upon entry might exonerate the occupier from liability.

“If you are there to conduct business or something, it is left for you to decide not to conduct that business again and go somewhere else. They have informed you in advance that they will not cover any loss or damage,” he said.

Another legal practitioner Chukwubuikem  Azoro told The ICIR that while the presence of a car park or security men within a premises would not imply a duty of care, it posed a duty on occupiers to make, at least, minimal efforts as could be expected from a reasonable person to ensure the safety of a licensee’s car.

“If after they have done their best, a third party tampers with the car, can one still hold them liable? They are not bailees of the car in the first place. And if, for any reason, they have put up the caveat, ‘cars parked at owners’ risk,’ then it is conclusive of the matter,” he said.

Several car parks demand the payment of a certain sum before entry into the premises can be granted to car owners. Receipts are issued upon payment, and this is the practice across major markets in Abuja.

In Wuse Market, Abuja, car owners are required to pay the sum of N100 in exchange for receipts, but despite this payment, security operatives at the market maintain that they will not be held liable for any vehicle theft, as a caveat boldly inscribed on the receipts reads, ‘vehicles are parked at owners’ risk.’receipt

According to a management staff member at Wuse Market, who identified himself as Attah, security officials were primarily employed to keep the shops safe and not necessarily to assume responsibility for customers’ vehicles.

“They stay all through the night to protect the shops. But they try their best in the sense that if another person comes close to a car, they’ll know that he’s not the owner,” he said.

A security guard at Wuse Market Gideon, who is often stationed at the exit gate, also told The ICIR that liability would not be borne by market authorities in the event of car theft or damage.

He noted that payment for parking space was not for security, but a means of generating revenue as all monies realised from the sales of tickets were remitted to the relevant government agencies.

Speaking on this, Azoro maintained that the conspicuous presence of a caveat on gates, fences or receipts issued at the point of payment absolved a landlord or occupier of liability in the event of car theft or damage, regardless of payment.

The Supreme Court held in Anyah v. Imo Concorde Hotels Ltd that a car owner who parked his car within premises where a caveat was boldly inscribed did so at their own peril. Based on this, “cars are parked at owners’ risk,” the court ruled.

But when is a car owner absolved of liability for the theft of his car?

The ICIR, in a conversation with a lawyer Samuel Oyigbo, gathered that the first step to be taken in transferring liability to car park authorities is to establish a duty of care.

A duty of care can be established where a car owner goes beyond just parking his car within certain premises, to entrusting his car into the care of the authorities upon whose premises he parked, Oyigbo said.






     

     

    Justice of Supreme Court (JSC) Umaru Atu Kalgo in the case of Anyah v. Imo Concord Hotels Ltd stated that a licensee who drove into a car park, handed his key over to the staff or authorities of the park and drew their attention to where they parked had established a duty of care on the part of the institution to ensure the safety of the car regardless of the presence of a caveat.

    Cars, therefore, are not parked at owners’ risk when a duty of care has been established between a car owner and the authorities upon whose premises they parked.

    The principle of vicarious liability, which holds an employer liable for the actions of his worker, also exonerates a car owner from liability in the event of theft or damage done to the car by a staff member of the institution on whose premises a car was parked.

    Car owners who wish to be absolved of liability arising from car theft, therefore, must endeavour to establish a duty of care that would place the car’s safety on the institution, regardless of the presence of a caveat.

    Ijeoma Opara is a journalist with The ICIR. Reach her via [email protected] or @ije_le on Twitter.

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