theft property damages disclaimers
Coat checks warning
<p>I got into a debate with a friend about the disclaimer you see on coat checks, parking lot tickets, and other similar "contracts."  There is often text printed on the back of the tickets you receive.  Something along the line of, "We are not responsible for loss or damage."</p>

<p>As I understand, that is not legally binding.  When using their service, they are expected to provide a safe environment and if loss or damage occurs, they are responsible, regardless of the words on the ticket.</p>

<p>I expect this might vary from state to state, but is there a consensus?</p>

<p>This is called a bailment. There is a pretty general outcome.</p>

<p>First, I will discuss bailments. To get to the meat of the answer skip down to the horizontal break.</p>

<p>Here is some info from a Maryland case. I omitted citations and added emphasis. <a href="https://apps.fastcase.com/Research/Public/ExViewer.aspx?LTID=Zy2kLNaD1lgEQuiBRQXovj3iHNUVmRiEqI/gQ5RJRF6NTYv7kxgc6NGTk7qKJ%200gAd440anUWxVClyi5p1FntwK%20RW%204lBr/GAnnu3OPp//6kTA/48RstUgNMjQq%20dWjYGJBswAZVgbvI9BdJIcfj0GET6T9MTZmd4yS5/7r53M=" rel="noreferrer">Danner v. Int'l Freight Sys. of Washington</a>, LLC (D. Md., 2012) <em>Maryland is a state which may honor the fine print</em>.</p>

<p>There are three types of bailments, the most common one is the type you are asking about, the bailment for mutual benefit. (You watch my coat, I give you a few dollars. As opposed to, "Hey will you watch my computer while I go to the bathroom?)</p>

<blockquote>
  <p>A bailment relationship can arise in a variety of ways. In modern
  usage, there are three general categories of bailments: (1) for the
  sole benefit of the bailor; (2) for the sole benefit of the bailee;
  and (3) for the mutual benefit of both.</p>
</blockquote>

<p>The property should be returned in the same condition as it was delivered. A reasonable standard of care applies.</p>

<blockquote>
  <p>When the subject matter of a mutual bailment for hire is delivered by
  the bailor to the bailee, it must be returned by the bailee in
  substantially the same condition ordinary wear and tear excepted. Put
  another way, the bailee in accepting possession of the bailed property
  assumes the duty of exercising <strong>reasonable care</strong> in protecting it.</p>
</blockquote>

<p>If the property is damaged, the bailee (the person holding the coat) is automatically found to have failed to take reasonable care. They need to explain the damage and how it was not their fault. Then the bailor (the guy who owns the coat) needs to explain why, in spite of the excuses, the bailee is the one responsible.</p>

<blockquote>
  <p>When the bailed chattel is either not returned or returned in a
  damaged condition without legal excuse, a prima facie case of lack of
  due care or negligence is made out. It is then the duty of the bailee
  to go forward with proof that the loss or injury was occasioned by a
  cause which excuses the bailee, thereby providing a <strong>complete defense
  as the bailee is not an insurer</strong>. The bailor is then, by reason of
  his burden of proof, required to overcome this defense by establishing
  by a preponderance of the evidence that the bailee <strong>failed to use
  ordinary care and diligence</strong> to safeguard the bailor's property, and
  that failure to perform his duty caused the loss to the bailor.</p>
</blockquote>

<p>So the bailee is responsible for negligence, but is not an insurer. As long as they provide the care that an ordinary person would provide in keeping their own coat, they are not responsible.</p>

<blockquote>
  <p>A bailee may be liable for negligence, but is not strictly liable for
  loss of bailed property. This is because a bailee for hire is not an
  insurer of the safety of the property entrusted to its care, but . . .
  <strong>owes only such care as persons of common prudence in their own
  situation</strong> and business usually use in the custody and keeping of
  similar property belonging to themselves.</p>
</blockquote>

<hr>

<p>Another case, this one from Washington, tells us a little about limiting liability. <a href="https://apps.fastcase.com/Research/Public/ExViewer.aspx?LTID=WX/CFJEnCWPs9CiANYtVZxk13Lg170jKBtvoKjPb2QRDh1wq9tY3SxBtxliJhcitpquGhitAiss/WKRYi%20pc2ZSRZ8KCNQ%20GeWKBHJJ/7qv0Fl3javHKlIdtzUU6i8ljiho4mVoGUos8mkeIQ3qUZxGtpVF8yaWxZCBzIVZ7hYM=" rel="noreferrer">Eifler v. Shurgard Capital Management Corp.</a>, 861 P.2d 1071, (Wash.App. Div. 2, 1993) Again, internal quotes omitted and emphasis added. <em>These are the guys who do not honor the fine print</em>.</p>

<p>The case tells us that the bailee, if the bailee is a professional bailee, cannot limit liability. </p>

<blockquote>
  <p>A professional bailee is one (1) whose principal business is to act as
  bailee, and (2) who deals with the public on a uniform rather than
  individual basis.
  When a bailment for mutual benefit is also a professional bailment,
  <strong>public policy will not permit the bailee to limit his or her liability</strong>
  for negligence.</p>
</blockquote>

<p>The court cites a popular leading California Supreme Court case (<a href="https://apps.fastcase.com/Research/Public/ExViewer.aspx?LTID=upYlfCcOZqozfTPwDhu12OJYx1wqlY3mjRg8KLL7mEnT7ymClihW5ncIvQlZeuGNK7ESjXHxG/ZLBIypFmHXTg742o0pjxw2s24SiTXWMaMEku4vxzFZU8ZsrWfA/lmT3seiZuscaIgwY9Xykwoco18/u8fLxQrwskO9D%20Aurno=" rel="noreferrer">Tunkl v. Regents of Univ. of Cal.</a>, 60 Cal.2d 92 (1963)) and provides a "<em>test to be applied in determining whether exculpatory agreements violate public policy</em>" - in other words, if that fine print gets thrown out. The more of these elements that are true about the situation, the harder it is for the fine print to cover the bailee's ass:</p>

<p>1) Service to the public, perhaps even necessary to some<br>
2) Offers the service to pretty much any customer<br>
3) The bailee has a position of bargaining power by virtue of the service offering<br>
4) Standard exculpatory language, take it or leave it<br>
5) No option to pay more money for better protection<br>
6) Property is placed under the control of the bailee  </p>

<p>Bottom line is that if the state follows this model, the fine print is not enforceable.</p>

<blockquote>
  <p>Thus, the attempted but invalid exemption involves a transaction which
  exhibits some or all of the following characteristics. It concerns a
  <strong>business of a type generally thought suitable for public regulation</strong>.
  The party seeking exculpation is engaged in performing a service of
  great importance to the public, which is often a <strong>matter of practical
  necessity</strong> for some members of the public. The party holds himself out
  as <strong>willing to perform this service for any member of the public</strong> who
  seeks it, or at least for any member coming within certain established
  standards. As a result of the essential nature of the service, in the
  economic setting of the transaction, the party invoking exculpation
  possesses a <strong>decisive advantage of bargaining strength</strong> against any
  member of the public who seeks his services. In exercising a superior
  bargaining power the party confronts the public with a <strong>standardized
  adhesion contract</strong> of exculpation, and makes <strong>no provision whereby a
  purchaser may pay additional reasonable fees and obtain protection
  against negligence</strong>. Finally, as a result of the transaction, the
  person or <strong>property of the purchaser is placed under the control of the
  seller</strong>, subject to the risk of carelessness by the seller or his
  agents.</p>
</blockquote>
