Risky parking

Motorists warned to heed advisory

Sheldon Williams, Gleaner Writer

Motorists are being advised to pay special attention to the Park at Your Own Risk notices posted in many parking lots.

Deputy superintendent of Police in charge of Administration at the Jamaica Constabulary Force (JCF) Traffic Division, Gary McKenzie, explained that "once that disclaimer is there, they are actually saying to you that you park your vehicle here and we accommodate your vehicle, but, at the same time, there is no guarantee that your vehicle is totally safe. That is what they are basically saying".

The policeman added that motorists should be mindful of limited or no security for these parking lots and take steps to secure their vehicles. "There is some responsibility on the owner of the vehicle to ensure that their vehicle is protected, because if you look at it wisely, you are not necessarily paying for the parking. There is no insurance per se. What is really happening is that you are being accommodated," McKenzie said.

lots with security

In contrast, DSP McKenzie said there are parking lots which do not display the disclaimer, where security is a priority. "There are some parking lots with security, and where there is no sign, it can be reasoned that they are taking some level of precaution. And that's why there are some places, even though they can't totally guarantee that nothing will happen, they seek to do as much as possible to protect your vehicle by using vehicle passes," he said.

Attorney-at-law Kenyatta Powell explained that under the law, operators would not necessarily be absolved of all responsibility if a vehicle is damaged at or stolen from a lot operated by them. "The courts apply the contra proferentem interpretative tool when dealing with exclusion clauses. This simply means that when construing any exclusion, the court will interpret in a way that is least favourable to the party attempting to rely on it. This is particularly the case where, as with park at your risk signs, the party relying on the exclusion is trying to say that it should be exempted completely from liability. So the short answer to this question is that such signs are unlikely to exclude all liability for the operator of the lot," Powell said.

Therefore, a motorist can take a parking lot's proprietor to court. "The owner can take legal action. The clause seeks to exclude liability of the operator of the parking lot. It can't operate to prevent the owner from actually filing suit in Court. Once the suit is filed, it is for the court to decide whether the liability has been actually excluded," Powell said.

The attorney also said that parking lot operators can be bound by contract to provide security. "Whether such a contractual obligation exists is a matter to be determined on the facts peculiar to each situation. Outside of contract, there may be some tortious liability involved in running a car lot. The law of negligence and occupier's liability comes to mind readily. In terms of negligence, it could be argued that a car lot operator has a legal responsibility to the people who use the car lot to ensure that the lot is secured. If the operator breaches this duty and the user of the lot suffers damage as a result, there could be an actionable case in negligence.

"Occupier's liability, in short, speaks to the operator's duty again to make sure his lot is free from things or activities that may endanger his lawful visitors," Powell said.

Still, Powell said, "I can tell you that there is nothing in law that would prevent a lot operator from putting up these signs. One might reasonably argue that it is actually prudent to put up such a sign."