Legacy: 1, STi: 0

[phenryiv1]

Dealers saying that they are not liable in such a situation is like me wearing a shirt that says "Not responsible for my own actions" and then b!tch-slapping everyone in my path.

 

Dealerships have a bailee (custodial)/bailor relationship with the property of their customers. They have a duty to restore a customer who is harmed to his or her "pre-injury" condition- "injury" meaning financial, in this case.

 

Like has been mentioned- they have insurance.

 

My Nissan dealership tried to pull that one on me when I was having engine work done and my car was damaged by another customer. Even though the other customer was at fault, the dealership is responsible for the arrangements to have my vehicle repaired. Had the other guy's insurance balked, the dealership would have been on the hook (they could have subrogated to recover) for the repairs, as they were legal custodians (having full possession and control) of my property for the purpose of my original repairs.

[Scruit]

http://en.allexperts.com/q/Property-Casualty-Insurance-1544/Car-Vandalized-Private-Property.htm

 

The question you need answered is "Who is liable for the damage to my car?" That sort of makes it a legal question, not an insurance question. That being said, I'll answer it with an insurance twist.

 

First determine if the dealership was negligent in any way that may have allowed the damage to occur. If they were negligent, then they would be liable for damages. Did they leave your car in a dark, accessible parking lot at night? That may be negligent. Or did they leave your car locked in their building or in a fenced, lighted lot overnight? That would not be negligent. To be negligent, the dealership must have acted in a manner that a prudent person WOULD NOT have acted. If they acted in a manner that a prudent person would act, then they would not be negligent, hence not liable.

 

If the dealership was not negligent/liable, you will have to look to your own insurance policy for recovery.

 

Most auto dealerships carry coverage that pays for a customer's car damaged while in their care. This coverage is called 'Garagekeepers Liability' and it can be written to either 1)pay regardless of negligence on the part of the dealership, OR 2)only in the event of the dealership's negligence.

 

(My emphasis)

 

If the dealer was not negligent, then there is no liability.

 

If the car is left at a dealership that has "no-fault" garagekeeper's liability policy then lucky you - you get paid out. But that doesn't mean they were *liable*, they just had the policy written to pay out regardless of liability.

 

I'm not making this stuff up... :-)

[phenryiv1]

http://en.allexperts.com/q/Property-Casualty-Insurance-1544/Car-Vandalized-Private-Property.htm

 

 

 

(My emphasis)

 

If the dealer was not negligent, then there is no liability.

 

If the car is left at a dealership that has "no-fault" garagekeeper's liability policy then lucky you - you get paid out. But that doesn't mean they were *liable*, they just had the policy written to pay out regardless of liability.

As noted here...

this could vary from state to state

it clearly varies. In WV the law is pretty clear that the highest level of scrutiny is applied to the one who is in the greatest position to prevent the harm, thus liability of the dealer is greater then the liability of the bailor, who has no control over the care and accomodations of his/her vehicle while in the custody of the dealership.

 

Many other states follow this model.

 

Many states do not require negligence to enforce liability. Like a crime committed without the intent to commit it, the outcome (and thus penalty) is the same, regardless of mindset at the time. Culpability is not rooted in intent.

 

In your example of insurance, that speaks only to insurance. Just because the dealership is not covered (or reimbursed) by insurance for an act that occurs on there property does not mean that they cannot and will not be responsible to make whole the injured party who entrusted them with their property under the custodial relationship.

 

I'm not making this stuff up... :-)

I know...but it varies from state to state. If it was cut and dry, I would not have had to go to law school- we'd all know the law and interpretation would consist solely of comprehension of the English language.

[Scruit]

In your example of insurance, that speaks only to insurance. Just because the dealership is not covered (or reimbursed) by insurance for an act that occurs on there property does not mean that they cannot and will not be responsible to make whole the injured party who entrusted them with their property under the custodial relationship.

 

 

I know...but it varies from state to state. If it was cut and dry, I would not have had to go to law school- we'd all know the law and interpretation would consist solely of comprehension of the English language.

 

 

You aren't the only here one who went to law school.

 

 

Think about it... Are you honestly suggesting there is insurance out there that will refuse to pay out because the dealership was too careful with the customer's car?? (thereby avoiding legal liability)

 

 

I'd like to see a link to a legal webpage that supports your position that the dealer is responsible regardless of how much care he has taken.

 

I'll grant you that there are fault and no-fault states and that state law does vary - but I have never encountered Liability without Negligence.

 

 

 

Did your law school cover this question....? "If a car's braking system suddenly and unexpectly fails, even though it was maintained correctly, and the car rear-ends another at a red light - then who pays for each car's damage??"

 

Hint: "There is no liability without negligence."

[Scruit]

Hmmm... I'll concede this... In 1919 Michigan passed a law that stated that any damage done to a car while in the custody of a 'garage keeper' shall be prima facie evidence of negligence.... Weird. (There is still no liability without negligence - but the 1919 Michigan law specifically states that negligence is assumed - so legally there IS negligence.)

 

 

Ok, I'll agree that some states may hold a dealership liable 100% (probably the states that also have garagekeepers insurance that does not require evidence of negligence. By some states require actual negligence. So we're both right, and both wrong.

 

 

Let this be a lesson to all, me included, that you cannot make blanket statements about "US law".

[phenryiv1]

You aren't the only here one who went to law school.

I went a LONG time ago- you have the advantage here. And if you remember my conversations from the org, you know that I never practiced. You've seen me argue with endus and Alex and those other guys- you know what I do now has NOTHING to do with what I learned in law school...that was just dollars in exchange for information...

Think about it... Are you honestly suggesting there is insurance out there that will refuse to pay out because the dealership was too careful with the customer's car?? (thereby avoiding legal liability)

I don't think that I said that, but maybe my sentence wasn't tto clear. At any rate, I never meant to say that, if I did. I think that an insurance company will try to avoid paying out by insisting that their client exhibited due care, but in the end, someone will pay the harmed person (in most states). Whether that is the insurance company (due to their relationship with the dealership), or the dealership directly (if the insurance company can argue that the dealership did not utilize procedures called for in their agreement of coverage) is the question.

I'd like to see a link to a legal webpage that supports your position that the dealer is responsible regardless of how much care he has taken.

 

I'll grant you that there are fault and no-fault states and that state law does vary - but I have never encountered Liability without Negligence.

The piviotal question is, who was in the greatest position to avoid the harm? It is followed by the question of whether or not they could have done MORE to avoid the harm. Now, there are certainly circumstances (natural disasters, for example) where bailee relationships have different standards, but in general terms, the onus is on the party in control of the greatest position to avoid the harm. Come on, is your state under comparative or contributory negligence? That factor alone guides recovery for liability as much as anything.

Did your law school cover this question....? "If a car's braking system suddenly and unexpectly fails, even though it was maintained correctly, and the car rear-ends another at a red light - then who pays for each car's damage??"

 

Hint: "There is no liability without negligence."

No, we did not. (Or at least not that I can remember- it was 7 years ago!).

 

Well, does that leave the victim unable to recovery? SOMEONE had the opportunity to avoid harm to the victim- even if that required steering the car into a ditch on the side of the road.

 

You can find a hair-brained example of a court holding each driver responsible in that situation, but that is a real REACH for tort law. Even the biggest defense advocate would have trouble making that argument with a straight face.

[phenryiv1]

Hmmm... I'll concede this... In 1919 Michigan passed a law that stated that any damage done to a car while in the custody of a 'garage keeper' shall be prima facie evidence of negligence.... Weird. (There is still no liability without negligence - but the 1919 Michigan law specifically states that negligence is assumed - so legally there IS negligence.)

 

 

Ok, I'll agree that some states may hold a dealership liable 100% (probably the states that also have garagekeepers insurance that does not require evidence of negligence. By some states require actual negligence. So we're both right, and both wrong.

 

 

Let this be a lesson to all, me included, that you cannot make blanket statements about "US law".

You have more energy than do I. I was willing to concede at least a partial loss to my argument, just based on the fact that I can't remember enough to intelligently refute you!

 

Just go back to my T-shirt example in my first post. I keep that in mind in ALL of my negligence discussions. You cannot "disclaimer" away liability.

[Scruit]

In the car braking system failure there are a few different ways of looking at it.

 

1) If the brakes were actually working normally, or close to normally, then the driver is negligent likely to be held liable.

 

2) If the brakes fail due to being poorly maintained then the owner is negligent and likely to be held liable.

 

3) If the brakes fail due to sloppy work by a garage, then the garage is negligent and likely to be held liable.

 

4) If the brakes fail in a way that was not a result of negligent driving, or negligent maintenance, or negligent work... Then it's a true accident and nobody is clearly negligent. And without negligence there is no liability. Then other rules kick in like "Is it a no-fault state" etc.

 

 

Of course this is a textbook question and if it did happen in real life the car's manufacturer woudl probably be sued. And we all know that paying to settle a lawsuit is usually the quickest and cheapest way to get out of liability.

[Scruit]

You cannot "disclaimer" away liability.

 

You just reminded me of a Horse Riding trip I went on with my wife. The disclaimer we signed said; "We are not responsible for x, y, z or the ordinary negligence of our staff. I laughed and told the instructor; "You can't disclaim negligence!"

[Scruit]

You have more energy than do I. I was willing to concede at least a partial loss to my argument, just based on the fact that I can't remember enough to intelligently refute you!

 

 

 

http://i103.photobucket.com/albums/m159/Scruit/HolyGrail021.jpg

 

All right then, we'll call it a draw.

[phenryiv1]

All right then, we'll call it a draw.

I am just here to up your post count...

[Scruit]

I am just here to up your post count...

 

I swear, I was about to say; "We can whore together" but I stopped myself.

 

Oh wait, I guess I didn't.