by Michael W. Flynn
First, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.
Many of us have left our cars in parking garages, and expect our cars to be there, and in the same condition, when we return. Unfortunately, this is not always the case. Adam from California wrote:
In California, whenever you use valet parking, on the back of your parking slip there is a notice that the valet company is not responsible for any damage to your car. If the valet scratches or damages the car while parking it, how can they not be held responsible?
Adam’s question has two parts. First, whether the disclaimer has any effect generally, and second, assuming the disclaimer has an effect, does the disclaimer operate to insulate the company from the acts of its own employees? The answers vary widely from state to state, and depending on other circumstances.
In some states, including Alabama, California, and Louisiana, courts have held that a preprinted ticket that includes an express waiver of liability can give sufficient notice to the customer that the parking lot was not taking responsibility for damage. So, those courts held, in some circumstances, that the parking garage was not liable for damages caused by third parties to the car while the car was parked in the garage or lot.
In some cases, courts have held that the waiver of liability does not apply where the customer did not see the waiver. For example, if the waiver is listed on a sign in the garage, but the customer did not see it, or would not normally pass the sign before leaving the garage, then the waiver does not work.
Other courts will only allow the waiver of liability to work where you do not give your car to an employee of the garage. So, if you get a preprinted ticket from a machine with a waiver, park the car yourself, and take the keys with you, then the garage is not responsible for damages. Only where you actually give the car to an attendant, and the attendant parks the car for you and keeps the keys, will some courts void the waiver of liability.
However, in most states, including New York and Ohio, courts reviewing parking tickets have held generally that these broad waivers of liability are void as against public policy. The courts reasoned that a parking garage acts as a professional bailer, and cannot waive its duties even where it expressly tells the customer that it is doing so. That is, a business whose manifest function is to care for cars cannot absolve itself of liability for performing that function in a manner that causes damages to vehicles. Ohio courts are outspoken in their criticism for these bald attempts to shift the burden to care for a car back onto the consumer. In these states, the waivers of liability have no effect.
Turning to Adam’s second question, customers are in luck. Even in states where the waiver of liability has an effect, those states generally agree that the waiver does not apply to damages to the car caused by the intentional or negligent actions of the garage employees. The law generally does not allow you to waive liability for damages caused by your own negligence. If this were possible, then every business could just post a generic waiver of liability for everything they do, and customers would never have any recourse. Courts have universally held that such a scheme cannot really work, and customers need protection.
Reading all these authorities together, you are better off taking public transportation or walking in cities where you feasibly can – it avoids the problem altogether. See you on the bus!
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