At your own risk

Ever check into a hotel room, unpack, turn down the blanket and pillows to make sure everything is clean, hide away your valuables in the safe provided and head out only to face a strangely obscure sign at the back of your hotel room declaring that ‘the safety of you and your belongings is not guaranteed and the hotel will not be liable for anything…’ Isn’t your first reaction, ‘Excuse me, what does this mean?’

What about when you drive up to a bank where you have several accounts: checking, savings, mortgage, Diva, kiddie and as lock up, you notice a sign which you could have sworn was not there the last time you were: ‘Owner’s car parked at their own risk’. You look around and see at least five hefty guards in uniform…but apparently they are not there to look after you car.
These are ‘disclaimers’, something standard all over the world but often unsavoury to the customer. In law, a disclaimer is a statement denying responsibility with the intention of preventing civil liability for particular acts or omissions. It seeks to limit the rights and obligations that may be exercised and enforced by parties in a legally recognised relationship.

Disclaimers are usually made to escape the effects of the torts of negligence and of occupiers’ liability towards visitors which is why they are commonly found at hotels, banks, malls and other places with open access to the public. The idea is reduce the exposure of the owner of the place where the disclaimer is found in the case of any damage or loss to person or property. It is also common to find disclaimers in contracts or agreements; however the rules of application differ.
Across varying jurisdictions, hotels are only required to exercise reasonable care to protect your valuables and vehicles, which is why most good hotels have digital safes and a notice advising you to: one, use the safe for your valuables and two, acknowledge the hotels limited liability for loss of or to these valuables. It is not hard to understand the position of businesses which use disclaimers to limit their exposure to litigation and claims for compensation however the disclaimers must be fair.

For the parking disclaimer scenario, the position is a little different as many courts have held that occupiers are not liable for damage to or theft of motor vehicles, unless the occupier’s employees are somehow implicated. For example disclaimers for valet parking service at any location are particularly interesting because they are much harder to hide behind. If for example you give your keys to the valet to park your car and it comes back scratched or damaged due to the negligence of the valet driver, then the disclaimer will not favour the valet service.
There are several things to note as a customer, mainly, that a disclaimer is not effective under several scenarios e.g., where there has been gross negligence, recklessness, or deliberate acts leading to loss or damage. In the valet parking scenario, if an employee of the valet service leaves the key in the ignition and the car gets stolen this would be a case for gross negligence, and the disclaimer would be ineffective.The second disqualifier of disclaimers is when items are specifically left in the care of the hotel e.g., laundry or luggage stored with the concierge, then this property falls under the legal theory of bailment where you (as owner or bailor) have left goods in the care of another person (bailee) who must return the goods to you at some future date or become liable for the full value of the goods. When items are left in the custody of the hotel, the hotel must exercise reasonable care in handling these items. In this scenario, no matter how hard the occupier tries, or how craftily drafted the disclaimer is most courts will hold the disclaimer ineffective.

It is also near impossible for disclaimers to apply when there has been a death or personal injury. Under the provisions of the United Kingdom’s Unfair Contract Terms Act of 1977, a business cannot use a contract term or a notice to exclude or restrict its liability for negligence causing death or personal injury. Although we currently have no equivalent law in Nigeria, case law and precedents may fill in the vacuum.

The reason why it is important to know the position on disclaimers is because in the event that something does happen and you get ‘shown’ the disclaimer at the back of the hotel door or the fine print behind a receipt, you need the comfort of knowing that it is not a hundred percent clear cut; there might be a way to get some relief.
Remember this: the presence of a disclaimer in a legally binding agreement does not necessarily guarantee that the terms of the disclaimer will be recognized and enforced in a legal dispute. There may be other legal considerations that render a disclaimer void either in whole or part.

Published October 14 2008