Hello. Welcome to You Can’t Be Serious (YCBS!) This is my podcast. My name is Bradley Bailyn.
I’m an attorney here in New York City helping small businesses to grow and protecting the people who make the decisions for those progressive businesses.
Today I saw something that I felt just had to be discussed. I happened to stumble upon an article in The New York Times called my shirt avenged it’s by a gentleman named Rob Tannenbaum and he went ahead and brought the dry cleaner to justice who destroyed his shirt and told him he must have brought it in that way.
Now I think that has happened to all of us where we bring art. We check our car with the valet or we leave. We park our car or we bring something into the dry cleaner and then the business tells you oh we didn’t do that you brought it in that way and you say well why would I have done that I would know and say well you did it and I’ve always not had the time to pursue it but I’ve always wondered if I have the legal right to do that especially since they always have those signs up that say disclaimer it’s your responsibility blah blah blah blah. Or on the back of the ticket it has the disclaimer.
So here’s an introduction directly by Mr. Tanenbaum describing what happened and why he says when I decided to sue my dry cleaner in small claims court snickering friends accused me of having crossed the line between principle determination and foolhardy obsession.
Now that I’ve won the case they’ve stopped snickering and he says that his case began in the fall of 2000 when he gave four dress shirts to a cleaner on West 17th Street and he paid eight dollars that’s two dollars each and asked to have the shirts delivered.
He says I did not explicitly ask that the shirts not be ruined because I figured that was understood when I opened the plastic. Days later I found that my shirts had been washed and pressed except for one brightly striped Paul Smith shirts which was wrinkled as when I dropped it off.
But in addition it now had a tear on the left shoulder. I surmise that some employee of New York cleaners had accidentally ripped my shirt and then put it along with its new three inch gash on a hanger at the cleaners.
I was referred to Raj Patel who identified himself as the store manager with great certainty. He denied that the store had torn my shirt.
I pointed out the absurdity of paying to clean a ripped shirts and I’m laughing because we’ve all been there.
Then he pointed to small print on my claim ticket which warned that the store’s liability for a garment shall not exceed 10 times our charge for processing it grandly. He offered me a twenty dollar settlement. The shirt had cost me a hundred sixty dollars and I refused.
At that price I thought New York cleaners could ruin 15 more shirts kinds of similar to the McDonald’s hot coffee logic and so Mr. Tannenbaum goes on to say that he needs to bring these kind of businesses to justice which is why he brought this case.
And what ends up happening is the judge sides with Mr. Tanenbaum.
The judge says the issue is one of balance for hire when a Bailey is unable to return the bailed item or as here returns in damaged condition. A rebuttable presumption arises that the loss of or damage to the item is attributable to the valley’s negligence.
And now what is the public policy here in New York.
I think this is what we’re all wondering. The policy in our state is New York law however has long disfavored exculpatory clauses that we leave a party to a contract from liability for the consequences of its own negligence. The law was disfavor has been expressed not in a prohibition of such clauses but in strict requirements that the disclaimer of liability for negligence be made explicit and be communicated in such a way as to ensure that the party who is to be bound by the disclaimer has knowingly accepted such disclaimer as part of the contract between the parties.
OK, so now the leading case the court cites the leading case which continues to be the leading case on this matter which is class H and M. Passel room and at the end of the day the court sets out a funny and interesting legal standard here.
Basically the court says as follows in the Clark case plaintiffs agent checked a package containing valuable furs in a railroad station parcel room receiving from the attendant a cardboard claim ticket three inches long and two and a half inches wide on the face of the claim ticket was an identifying number printed in red type a half inch high.
Also on the tickets face also printed in red though in quarter inch type was the word contract below which in smaller type legible on close inspection. As the court describes it was texts stating certain purported terms of the contract between the parties one of which read loss or damage no claim shall be made in excess of twenty five dollars for loss or damage to any piece.
When plaintiffs sought two days later to claim the package it was gone. Apparently having been given to another customer by mistake which also happens at dry cleaners and happened to me and it’s probably happened to you anyway, at trial plaintiffs agent testified that he did not read the text on the face of the claim ticket that he was not advised by the parcel room attendant to read it and that he thought that it was merely a receipt for the package he had checked.
Defendant offered no evidence of any other method by which plaintiffs might have been placed on notice of the liability limitation.
The trial court awarded plaintiff a judgment of about a thousand dollars which was a lot of money when this case was decided in 1947. The Appellate Term modified the judgment however reducing it to twenty five dollars and then a higher court found that state of which that court found to have been communicated sufficiently. Then the appellate division which is the higher court reinstated the four thousand dollar judgment of the trial court reasoning that in the absence of a special contract express or implied.
And this is the relevant part here in the absence of a special contract express or implied a barely accepting baggage to be checked in its parcel room on payment of a nominal sum becomes a belly for hire and is bound to exercise ordinary care in Cape keeping and safeguarding the property.
The measure of the valley’s liability for loss of the property through its negligence is the reasonable value of the property. The parties to a building were almost done here. The parties to a Batman may however contract to diminish the Valley’s common law obligation with respect to the subject of the payment provided the contract is not in violation of law or public policy.
The law in this state is well grounded that to bind the bail or to a contract limiting the Bailey’s liability. It must be established that there is a special contract to that effect that the builder has had reasonable notice of the terms and that he has assented to them.
There is no proof here that that happens. What ended up happening in this case in the case that we’re currently talking about with a dry cleaner is he said I just never read what was on the back of the slip.
And the court found that not only does the disclaimer language need to be written somewhere but the person needs to be affirmatively aware of it. To quote the court in this case it appears that defendant sought to enjoy the protections of a disclaimer without alarming its customers by causing them actually to contemplate the parade of horribles addressed in the limitation clause.
And for that reason the court awarded Mr. Tanenbaum the Hundred sixty dollar value of the shirts. So bottom line is if you’re a business it’s going to be very difficult in New York to exculpate yourself for your own negligence.
However, it is possible to do it but it’s going to take a bit of thinking and legal analysis to arrange a set of circumstances which includes but is not limited to the language of the contract which will in fact get you out of your own negligence.
I’ve drafted contracts for people that do get them out of their own negligence but. You know again you’ve asked you can see it’s against New York public policy so it’s hard to do.
If you have questions about this feel free to email me at brad@bailynlaw.com or call or text me at 646-326-9971.
Please also feel free to subscribe to my podcast where I cover a lot of funny and interesting things just like this. Thank you very much.
