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Car park losses
29/08/2006 The Star By BHAG SINGH
WHEN payments are made to another person or party for a service rendered, it
is always expected that the party to whom payment is made has certain
obligations. However, difficulties can arise when the different parties have
different ideas of what their expectations are.
Thus, when a person drives his car into a car park in a hotel and either
some item from the car is stolen or damaged caused the immediate reaction is
to feel that the hotel should be responsible to compensate the car owner.
On the other hand, the hotel may feel that it is merely providing space for
the car to be parked and charging for this facility. It is not in the
business of guarding each and every car that has been parked on the
premises.
As to whether the car owner in such a situation has a right to be
compensated or the hotel to deny liability is very much a question of fact
in each particular case that comes up before the court.
The eventual position would also depend on whether some items are stolen
from the car or the car is damaged and the circumstances in which this has
occurred. Thus there cannot be a single and simple answer.
A different aspect is when the Hotel exempts or excludes itself from
liability. This is done by placing notices at the appropriate and suitable
points to announce that the Hotel is not liable for any loss of item from or
damage to the car.
Such an exemption from liability notice must of course be brought to the
attention of the car owner before the contract between the hotel and the
guest is concluded. Thus, where a person drives directly to the car park the
contract is made when in automatic parking he presses the button for the
level to move up and the ticket to come out!
In some cases such notices are placed inside the car park and come to the
attention of the car owner only when he is already inside the car park and
committed to parking the car there at least for a limited initial period. In
such a case the car owner may contend that the exclusion of liability is
unilateral and therefore not binding on him.
This is no doubt a valid argument though not necessarily and always a
successful one. Where the car owner is going into the hotel car park for the
first time the argument may perhaps assume greater legitimacy.
However, where a person parks his car in the car park regularly or at least
is not an infrequent visitor he would be aware of and familiar with the
conditions for parking and could be said to have impliedly if not expressly
acquiesced.
Whether a hotel is liable for loss of items from a car would also apart from
the matters stated earlier in addition depend on representations otherwise
made by the hotel.
If the hotel in the course of its promotion and marketing activities boasts
about the safety of and security in the car park it provides to its
customers, the position of the guest in the event of such an eventually
arising would be much stronger.
But, of course, it is rare to see such claims being made in present times.
On the other hand, it would appear that such establishments do not show
themselves to be too keen to announce such exclusion of liability too
prominently or even prominently.
Be that as it may, it could be said that even without exclusion of liability
a hotel could protect itself if it had adopted reasonable measures to
safeguard the safety of such vehicles. A hotel could also raise in its
favour contributory negligence on the part of the car owner where this is
evident.
Damage caused to a car in a hotel’s car park involves different
considerations. This is because damage to a vehicle so parked could be
caused either by defects or danger existing on the premises and which it
would be the duty of the hotel to safeguard against.
Thus, if a car parked in a hotel car park is damaged because of the unsafe
condition of the floor, walls or ceiling it would certainly provide
legitimate grounds for the car owner to seek compensation from the hotel.
On the other hand, if the damage is caused because a car driven by another
hotel guest crashes into it then of course the hotel owner is not liable or
responsible. In such a case, the blame rests on the third party.
In such event, the person who has suffered damages will have to take action
against the driver and owner of the other car that crashed into the
aggrieved person’s car. The matter would have to be dealt with just like it
would be dealt with if the accident happened anywhere else.
However, the aggrieved person may have been attending a function in the
hotel when the collision occurred. The car driver who caused the crash may
just have driven off. And the aggrieved person would therefore have no clue
of who caused the damage.
The person who has suffered the damage would certainly feel upset but he
cannot make the hotel responsible by default. In such event there is nothing
much he could really do if the “offender” cannot be identified.
A situation where the wrong done cannot be identified and therefore no
remedy obtained is not an entirely unknown aspect of law and life. Here, it
is only damage to the car. Worse things can happen.
There are cases where a person is killed and the person responsible can
neither be identified nor therefore apprehended. There are numerous cases of
unsolved killings in the country.
The aggrieved person in such a situation would have to bear his own loss. Of
course this would be considerably mitigated if the vehicle was adequately
and suitably insured.
Coming back to the question of damage to a car in hotel premises not many
cases get to the Courts. In some cases the hotel may compensate the
aggrieved person more often out of goodwill rather then strict legal
liability. In other cases the aggrieved person may not consider it worth his
while to pursue the matter.
Though the aforegoing discussion has been carried out on the basis of
hotels, similar principles would apply to car parks in commercial buildings
and other commercially operated car parks. |
