In general, a disclaimer is a statement used to specify or limit the scope of obligations and rights that are enforceable in a legally recognized relationship such as host/visitor.
The disclaimer attempts to relieve a party of liability in situations involving risk or uncertainty. In law, a disclaimer is a statement denying responsibility intended to prevent liability arising for particular acts or omissions.
Disclaimers are frequently made to escape the effects of negligence and occupiers’ liability towards visitors.
According to data from the International Carwash Association’s vehicle incident reporting program, car wash incidents are nearly non-existent with more than 99.9 percent of vehicles washed without incident.
On the other hand, trade journal operator surveys show that customer claims range between 0.5 percent and 1.0 percent of total car wash revenue. So, a car wash with sales revenues of $1 million might have customer claims in the range of $5,000 to $10,000.
Considering the average new car price is now over $34,000, one could assume that customer claims involve a few higher-cost incidents or several lower-cost incidents.
For example, the average cost to have a third party replace a side mirror, antenna mast, or rear windshield wiper arm has range of between $150 and $300. If a body shop has to reapply a little clear-coat, add on another $400 or $500.
According to consumer-protection attorneys, a service provider (e.g., repair shop, car wash, oil change) is legally required to take reasonable care to protect a customer’s vehicle while it is in their possession.
However, to get any money for a service provider’s error, attorneys say the customer must be able to show their car was damaged because of negligence.
This doesn’t mean negligent in terms of not posting a disclaimer sign but rather failing to provide a certain standard of care. For example, a detail-shop owner may be held liable for the theft of a vehicle if the shop left the keys in the unlocked car.
However, if the shop took all reasonable steps to ensure the safety of the vehicle (e.g., locked inside the garage overnight), it will not be held liable for the loss.
Generally speaking, attorneys will qualify a liability claim by walking their client through the elements of a negligence case to determine whether the person has a claim that will lead to payment for their loss. These elements involve legal issues related to possession or control of property, conditions, causation, injury/loss, and breach of duty.
Another aspect of disclaimer signs is effectiveness.
Shown are two examples of commercially-available disclaimer signs that could be described as ineffective.
The red sign basically states that even if you have a brand-new car, the car wash is not responsible for what might happen to wipers, antenna, side mirrors, wheel covers, glass, sunroofs, etc.
Moreover, if your car is over five years old (average age is 11.8 years), the wash apparently is not responsible for anything.
According to vehicle OEMs, the exterior and interior of their vehicles are expected to maintain their appearance for between eight and 10 years.
Arguably, the ability to ferret out legitimate from false claims is one of the keys to minimizing claims and maintaining goodwill. Coincidentally, a draconian sign like the blue one shown above may prevent a customer from reporting a legitimate claim and could possibility be an excuse not to return or shame the business.
An alternative to prohibitive signs would be to develop an accident prevention and safety plan. Elements of the plan would include anti-collision technology, surveillance cameras, employee training (fundamentals of paint finishes, trim), vehicle incident reporting process, and standard procedures for dealing with customer and employee injuries.