It seems that everywhere there is a parking lot there is a person assigned to hand out plastic laminated cards to motorists entering the premises.
These cards generally contain information which reflects conflicting positions on the part of the establishment issuing the card.
On the one hand, the cards warn the driver that the card should not be left in the vehicle.
Essentially, this warning provides notice of the security measure provided by the establishment for the protection of the vehicle from theft while in the parking lot.
The security measure is that the card must be presented in order to leave the premises. So once it is presented, it is presumed that the vehicle is being driven by its owner or at the very least the person who entered the premises. Accordingly, if the driver heeds the warning, he should have the piece of mind in knowing that the vehicle is under the protection of the establishment while it remains in the parking lot since the vehicle will not be allowed to leave the premises if the card cannot be presented by the driver.
This very card, however, also contains an exclusion on exemption clause which seeks to notify the driver that the establishment will take no responsibility whatsoever for anything that happens to the vehicle of a detrimental nature while in the parking lot. This exclusion from responsibility includes where the vehicle is stolen from the parking lot.
While it is not unusual, and in many cases prudent, for businesses to seek to limit or exclude their liability for damage or destruction to or theft of patrons' belongings or injury to the patrons themselves by use of such clauses, it is important for businesses to understand how these clauses actually work. This will ensure that the business is able to rely on the clause as desired and not discover that the clause is invalid or inoperable when it is needed most.
The most crucial feature of an exemption clause is that is construed "contra proferentem" against the person seeking to rely on it. In other words, the courts will interpret the clause in a way that is the least favourable to the person seeking to rely on it. This is especially the case where the purpose of the clause is to totally exclude liability.
Another feature to note is that the nature of the document containing the exemption will be heavily scrutinized. An established legal principle in this area is that where the exemption clause is set out or referred to in a document which is simply handed by one party to the other it will only be valid if the latter party either knew that the document contained (or was likely to contain) such a clause. The document should be of the kind that generally contains contractual terms and it should be obvious to the reasonable person that it is meant to be a contract.
In addition, the party seeking to rely on the clause must show that he took reasonable steps to bring the clause to the attention of the other party. The other party is under no obligation to exercise care in perusing the document to discover or read the clause. The more onerous the clause; the greater the steps necessary to bring attention to it. Further the steps must be taken before or at the time of contracting.
So back to the parking lot. It would seem ambiguous at best and contradictory at worst to notify a patron that there is protection for the vehicle from theft yet deny responsibility in the event it is stolen especially where this denial is done by merely handing out a card. As such, it could very well be that the establishments issuing these cards are at risk of having their exclusion clauses construed in the way that is least favourable to them.
Tamara Robinson is an Associate at Myers, Fletcher & Gordon in the firm's Commercial Department. Tamara may be contacted at Tamara.Robinson@mfg.com.jm or www.myersfletcher.com. This information is for general legal purposes and does not constitute legal advice