What we usually see in almost everywhere we go, be it offices, hospitals, churches, mosques, cinemas, and banks, among others, is the inscription, ‘cars or vehicle are parked at owners’ risk’. By this notice, owners and managers of facilities exonerate themselves from all liability in the event of a car or vehicle theft within their premises. Hence, there is a need to ask or interrogate the enforceability or otherwise of such disclaimers or notices. The Black’s Law Dictionary describes a disclaimer as a renunciation of one’s legal right or claims. On the other hand, enforceability is the ability to execute something under the law. The issue of strict liability comes to play in this discourse to link the relationship between the motorist and facility owner.
What is strict liability? In both civil and criminal circumstances, it exists when a defendant is liable for committing an action regardless of what the intention or mental state was when committing the action. Under the law of strict liability, property owners would be strictly liable for their actions. In a similar vein, a security man tasked with the responsibility of looking after vehicles parked within the jurisdiction under him tends to be culpable of a security lapse, under the principle of vicarious liability. When we talk about vicarious liability, it means that employers are liable for the torts of their employees committed during the course of employment.
It is trite in law that a principal is liable for the acts of the agent. This argument, therefore, downplays the position that facility owners, who exonerate themselves from the liability arising from the negligence of their security personnel in the event that parked vehicles are stolen within their premises. In most cases, it has been found that property owners, managers of properties, and security personnel do not seem to understand the import of such disclaimers they brandish. What they simply do is to ‘copy and paste’ what they have seen in other places in what can be described as the bandwagon effect. Why is this so? For a counsel, Ezekiel Ugwueze (Esq), “These notices at best, constitute an alarm bell, cautioning the car owner to provide extra security for his car”. Another attorney, Emmanuel Oti (Esq), however, agrees that such disclaimer notices cleverly exonerate managers and owners of facilities of any liability in the event of car theft for these signs are warnings.
My humble opinion, just like that of Ugwueze, is that these disclaimers are really not enough for property owners to evade all culpability in the event of a car theft under their watch. As mentioned earlier, when talking about strict liability, the same principle also applies such that the property owner, who places the disclaimer; ‘cars or vehicles are parked at owners’ risk’, is negligent in the performance of expected duty to vehicle owners. Negligence is any act or omission, which falls short of a standard to be expected of ‘the reasonable man’. The important ingredients that constitute negligence include the duty of care, breach of the duty, and harm or damages. The legal principle of negligence, which covers this caveat being discussed, was explained in the Supreme Court of Nigeria case of Diamond Bank Limited v. Partnership Investment Limited (2009) 18 NWLR (Pt. 1172) 67, as an omission or failure to do something, which the reasonable man, under the same circumstance, would do or the doing of something, which a reasonable and prudent man, would not do.
Relying on the celebrated case of Justice K. O. Anyah (Appellant) v. Imo Concord Hotels Limited and ORS (Respondents), 2002, which was decided at the Supreme Court of Nigeria, where the court ruled that there is no doubt that negligence is a specie of tort, and one man may owe a duty to another even though there is no contract between them, but a breach of contract may give rise to a proper action on negligence. Even though judgments were delivered in both cases differently as far as negligence was concerned. Without prejudice to the judgments of the apex court, what is key is that mere display of disclaimers may not hold water, especially when all ingredients of negligence have been successfully proven against erring facility managers.
When we find ourselves in such circumstances, should we be afraid? No. The court still remains the last arbiter. Meanwhile, it is important to clarify that this situation should not be confused with when we see the ‘no parking’ sign, which restricts parking vehicles where they can either obstruct the views of other road users or constitute a danger. On a final note, it is logical to say that organisations that owe the duty of care must fulfill such without precluding anyone from being security conscious. We should ensure that our vehicles are properly locked and owners of premises duly informed of vehicles parked within their premises. So, before parking that car or vehicle, what should readily come to mind is the admonition of the Dutch Philosopher, Desiderius Erasmus, a great scholar of the Northern Renaissance that ‘prevention is better than cure’.
