legal advice thread 2
 

I tried posting this in the campus forum, but nothing...

Short form-->

I work at a hotel and we offer guests secure storage for their belongs. This storage is only accessible by us and guests need either a claim tag, or be able to fully verify the contents of the bag to claim it.

Guests also sign a waiver with a clause that states "We are not responsible for any lost, stolen or damaged property".

Now a guests laptop was given away (our staff gave it away with out verifying anything) from this secure storage and my manager is claiming that we are not responsible due to this clause. The problem is that it was not stolen, but it was given to someone with out a claim tag, or being able to verify the contents.

Our staff has fucked up and we are completely in the wrong as we gave her laptop away with out verifying anything. The way this laptop was "stolen" or given away is a gray area for the clause in the T&C's. Would the Hotel Keepers Act of Canada supersede the agreement that they have signed?

I'm just looking for advice for my guest as we fucked up and our office doesn't want to take responsibility. Any help would be greatly appreciated.

EDIT -->
The hotel Keepers act of Canada states the following:

"Limitations on liability

5. The liability of a hotelkeeper, for loss of or damage to the property of a guest is limited to one hundred dollars in respect of any one article and five hundred dollars in the aggregate, except where the guest establishes

(a) that the property was lost or damaged through the default, neglect or wilful act of the hotelkeeper or his servant;

(b) that the property was deposited by or on behalf of the guest expressly for safekeeping with the hotelkeeper or his servant authorized or appearing to be authorized for the purpose, and, if so required by the hotelkeeper or his servant, in a container fastened or sealed by the depositor; or

(c) that the property was offered to the hotelkeeper or a servant authorized or appearing to be authorized for the purpose for deposit for safekeeping and the hotelkeeper or he servant refused to receive it, or, through the default of the hotelkeeper or the servant, was unable to receive it."

5 (a) says the business is on the hook for this $100 plus mistake. If it was my laptop the hotel gave it away as a result of neglect or neglegence so you are replacing it. Period.

"adive"??

The thing to remember, is that none of these sorts of clauses are absolute. A clause saying you're not responsible for lost, stolen or damaged items, does not exist to give you the right to simply be an idiot and give anything away to anyone you want. The manager can claim all he wants that the hotel has no responsibility because of this clause, but if the laptop owner took it to court, I guarantee you any judge on the planet would laugh in his face.

And BTW, you might want to point out to the manager, that even if he does find a way to skate on it, all this person has to do is get the word circulating that the hotel staff is incompetent and the manager is a shyster, and the loss in business will be many, many times the cost of simply replacing a laptop and apologizing profusely. If you went searching on hotels.com and found a report that "I left my laptop with the staff and they gave it away to someone else, then the manager told me to get bent", how likely would you be to book there? And if this has happened before, to other people, how soon do you think similar reports would start popping up?

even if the hotel was not legally responsible, which it sounds like they are... from a customer service point of view and what's "the right thing to you" the hotel should provide equal or closest to - laptop IMO, and beg for forgiveness and hope that laptop didn't contain seriously important info, ie. a business laptop with important info

picture her going to the local news agency: hotel GIVES away a guest's laptop and now REFUSES to cover the cost to replace it!!!, news at 6....

is $500-$1k for a laptop worth it for bad press? not to me...my 2 cents

i know nothing of law so i cant advise on that, but it seems like a no brainer

I should give you another thanks for nice avatar. You da man!

Hotel's fault.. they didnt verified and given the item away.

All the guest has to do is say that he will take the hotel to court... In this situation, the hotel knows they will have less then 50% to win, they wouldnt want to risk paying court fees, lawyer and cost of the laptop because of their neglegence...

Yeah the customer should be able to work something out with the hotel. If the manager is being a dink about their mistake, she should take it up with regional or corporate. All she really has to do is explain what happend, (have a hotel staff confirm what happend) and I'm sure she will get compensation.
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The person could theoretically claim other things as well. IF there were sensitive pictures, files, or work related things on the laptop I would think had a lawsuit been filed they could also claim emotional suffering or lack of wages.... Just my thoughts.

Berz out.

so many choices i had to sit and :concentrate: if it would be approved by MG1
:thumbsup:

Sounds like shitty customer service on the hotels part. Businesses should always do what they can (within reason) to keep customers happy.

I've had issues over the years with things happening at hotels (and all of them have those same "not responsible for lost/stolen articles" clauses/signs), but I've always had the hotel deal with the issue in a manner we both agreed upon.

My interpretation of that clause (from a customer service point of view) is if the hotel finds itself in a bad situation (an ignorant customer claiming damages far beyond any reasonable person would, or a customer leaving a laptop on a table in the lobby and blaming the hotel if someone takes it) that they have an "out" they can use. Otherwise they would still cover things happening just to keep the customer happy.

OP, I couldn't find a "Hotel Keepers Act of Canada", and I can't imagine there would be a federal statute on the subject given that Property and Civil Rights are within the exclusive jurisdiction of the Provinces under s. 92(13) of our Constitutional Act.

Assuming you're in BC, what you probably want to look at is the Hotel Keepers Act [RSBC 1996] CHAPTER 206, section 3, which states:

3 (1) No innkeeper is liable to make good to a guest loss of or injury to goods or property brought to the inn, except if the goods or property have been

(a) stolen, lost or injured through the wilful act, default or neglect of the innkeeper or the innkeeper's servant, or
(b) deposited expressly for safe custody with the innkeeper, except that in case of the deposit the innkeeper may require as a condition of liability that the goods or property be deposited in a box or other receptacle, fastened and sealed by the person depositing the goods or property.

It seems to me that the customer would be able to rely both on subsections (a) and (b) to affix liability to your hotel. Putting aside subsection (b) which is more complicated, subsection (a) makes it pretty clear that neglect would make the hotel liable. Giving away a customer's property purportedly in "secure storage" without verifying ownership of said property would be a pretty clear cut example of neglect, this practice falling well short of reasonable hotel standards.

As for this Act "superseding" the so called agreement signed...in general, you cannot contract out of statutory obligations. Pursuant to case law, contracts made in violation of public policy, and also illegal contracts, are unenforceable and void. Legislation is generally regarded as the way in which public policy is implemented.

In addition, even assuming you were able to ignore the provisions of the Hotel Keepers Act, there are principles in the private law of contracts that in the context of consumer transactions to which your facts apply, signing of a waiver is not conclusive to a party's assent to those terms. More often than not, shopkeepers and sellers don't realize that having a customer sign something doesn't mean they can point to that and say: well look, he agreed to these terms. There's also the concept of "fundamental breach", where a particularly bad breach of contractual obligations (like giving away a customer's property when you said you'd securely store it) means that a party is no longer able to rely on waiver of liability provisions within the contract.

If that was "TLDR", long story short, you're better compensating that customer. If I were him/her; I wouldn't think twice about pursuing action in Small Claims court.

Also, none of that was actual legal advice, so don't treat it as such.

Thank you, I just needed some clarification. I just wanted to make sure I had my "facts" straight before approaching the manager.

Many thanks all.

which hotel is this?

My advice is to keep your nose out of the situation unless you are the one who lost the laptop.

The hotel is completely in the wrong and should AT LEAST replace the laptop and apologize profusely. I worked at the Westin Grand Vancouver for 6 years and if we ever messed up that bad, we would have done AT LEAST that much, and comped their stay too.

If your management has decided to not take responsibility and is going to wait for the guest to pursue small claims, that is their decision to make.

If your moral fiber commands you to advise your managers to do the right thing, I applaud you: but be aware that when it comes to managers (in general), they don't like being advised what to do by bellmen or front desk staff. There are ways to say it without sounding condescending, but it's a mine field you're walking into.. better to stay out of it.

legally, the company could still be on the hook if the judge found it acted with gross negligence or willful intent

just because you put a clause in there doesn't mean you can legally give away customers belonging to random stranger

My friend, who isn't practicing anymore (still a registered BAR though) says if it was his client, he would suggest the client to deny any wrongdoing (get it down in writing) but give a new laptop to the client as a nice gesture to settle this ASAP.

This could be a gold-digging opportunity (claiming compensation for whatever it's in the laptop) for the guest and the hotel has no need to run such a risk for such amount (even if it's a 17" MBP, it should be less than 3K).

Tell us the name of the hotel so we can stay away from this dump.

Your friend is absolutely right and his advice is solid. This is probably what would be the simplest and easiest way to rectify the problem.

However, I have a hard time agreeing with your idea of a "gold-digging opportunity." Of course from a defense stand-point, denying liability but providing compensation is the smartest way to go; but not necessarily the fairest. Gold-digging would imply that the owner of the laptop is seeking compensation for something that he shouldn't be entitled to or doesn't have value. In our modern age, digital data is just as valuable as physical, material goods. When a person gives a laptop for example to someone who is supposed to "secure it"...They don't only expect security of the physical product but also of what's inside the computer. Security is the key here and the fact is, it was compromised. The person who no longer has their laptop because of no fault of their own, is indeed entitled to the value of whatever was on that laptop; whether it be irreplaceable data, pictures or purchased music.

The hard part of course is that the owner of the laptop would have to somehow convince a mediator that those items were indeed stored on the laptop and show how they were of value to them.

soundy is right about about word of mouth. we live in an information revolution. so many places to find opinions and so many OTHER choices.

2g is nothing compared to future damages