It seems that everywhere there is a parking lot there is a person assigned to hand out plastic laminated cards to vehicles 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.