Oklahoma Bar Journal
Civil Liability of Parking Valets and Their Employers Under Oklahoma Law
By Kyle Persaud
On Oct. 8, 2012, Thyce Colyn was severely injured when a car driven by a parking valet collided with Mr. Colyn when he was riding his bicycle. The court ruled the valet’s employer, Standard Parking, was fully liable, and a jury awarded Mr. Colyn over $38 million.1
Valet parking can increase customer satisfaction. A Vanderbilt University Medical Center survey found that customer satisfaction improved after the facility instituted valet parking. Informally, patient compliments about the parking further confirmed the survey results. The positive feedback from patients, in turn, raised morale among the employees and enabled the staff to provide better services than before.2 This article analyzes the potential liability that parking valets, and the valets’ employers, can incur under Oklahoma law.
STANDARD OF CARE FOR VALETS
Valet liability falls under the law of bailment. Bailment occurs when one person gives property to another to keep, for the benefit of the person giving the property. The person giving the property is called the bailor. The person receiving and keeping the property is called the bailee.3 Thus, in the context of a parking valet, the vehicle’s owner is the bailor, and the parking valet is the bailee.
Okla. Stat. Tit. 15 §459 says that the duties and liabilities of a bailee are subject to the general laws of the state. One “general law” of the state of Oklahoma, regarding care of property, is the law of negligence. To prove negligence, a plaintiff must prove:
- A person owed a duty of care to the plaintiff,
- The person owing the duty of care violated that duty and
- The violation of the duty caused harm.4
The first element listed above, “duty of care,” is important here. Although the duties of a bailee are subject to the general law of the state, Oklahoma has enacted laws defining the duty of care a bailee owes. This level of care depends on whether a bailee is a “gratuitous bailee” or a “bailee for hire.”
A gratuitous bailee is a bailee who receives no consideration or payment for acting as a bailee.5 If a bailee is not a gratuitous bailee, then he is a bailee for hire.6
A gratuitous bailee must use “slight care” for the preservation of the thing bailed.7 A bailee for hire must use “at least ordinary care” for the preservation of the thing bailed.8 Thus, if a valet is not paid, the valet would only have to use “slight care” to preserve the vehicles. However, if a valet is paid, then the valet would have to use “at least ordinary care” to preserve the vehicles.
If a valet is a volunteer for a nonprofit or charitable organization, the liability of a valet would be limited by Okla. Stat. Tit. 76 §31(A), which reads:
- Any volunteer shall be immune from liability in a civil action on the basis of any act or omission of the volunteer resulting in damage or injury if:
- The volunteer was acting in good faith and within the scope of the volunteer’s official functions and duties for a charitable organization or not-for-profit corporation; and
- The damage or injury was not caused by gross negligence or willful and wanton misconduct by the volunteer.
If a valet is acting in good faith, within the scope of his official functions and duties for a charitable or nonprofit organization and the damage to an automobile is not caused by gross negligence or willful and wanton misconduct, then the valet would not be personally liable.
Note that a “gratuitous bailee” is not the same as a bailee who volunteers for a charitable or nonprofit organization. A gratuitous bailee is any bailee who receives no payment or consideration for acting as a bailee. This would include any unpaid valet –
whether the valet was providing services to a charitable organization or to some other entity. A bailee volunteer for a charitable or nonprofit organization would, of course, also be a gratuitous bailee. However, if a gratuitous bailee acts as a bailee for any person or entity other than a nonprofit or charitable organization, the gratuitous bailee is not entitled to the same immunity from liability, which the law provides to a volunteer for a charitable or nonprofit organization.
LIABILITY OF A VALET FOR DAMAGE TO AN AUTOMOBILE
If a valet breached the duty of care he owed to preserve a vehicle and his breach of the duty caused harm to the vehicle, then the valet would be liable to the owner of the vehicle.
Okla. Stat. Tit. 12 §458 reads:
If a thing is lost or injured during its deposit, and the bailee refuse to inform the bailor of the circumstances under which the loss or injury occurred, so far as he has information concerning them, or willfully misrepresents the circumstances to him, the bailee shall be presumed to have willfully, or by gross negligence, permitted the loss or injury to occur.
If a vehicle was lost or injured “during its deposit” and the valet did not inform the bailor how the loss or injury occurred or misrepresented the circumstances of the vehicle’s injury or loss, the valet will be presumed to have acted willfully or with gross negligence. The valet would then be liable. Note also the words “during its deposit.” This means that the valet could potentially be liable for any loss or injury to a vehicle from the moment the vehicle was entrusted to the valet until the vehicle was returned to its owner. This statute would be relevant if the valet is a volunteer for a nonprofit because, as noted previously, Okla. Stat. Tit. 76 §31(A) does not immunize a nonprofit volunteer valet from liability if the valet acted with gross negligence.
Okla. Stat. Tit. 15 §456 reads:
A bailee is liable for any damage happening to the thing bailed during his wrongful use thereof, unless such damage must inevitably have happened, though the property had not been thus used.
If the valet wrongfully uses a vehicle, then the valet would be liable.
Also, there is Okla. Stat. Tit. 15 §460:
The liabilities of a bailee for negligence shall not exceed the amount which he is informed by the bailor, or has reason to suppose, the thing bailed is worth.
Thus, the valet would only be liable for the amount that the bailor informed the valet the vehicle was worth or for the amount the valet had “reason to suppose” the vehicle was worth.
LIABILITY OF A VALET FOR ANY INJURY CAUSED BY THE VALET’S DRIVING
In Dirickson v. Mings9 the court held:
Concerning duty of care, a driver of a motor vehicle must, at all times, use that degree of care which is reasonable and prudent under the circumstances. ... Therefore, a failure to exercise that degree of care which results in injury to another is actionable negligence.
Thus, if a valet is driving a vehicle and does not use the degree of care which is reasonable and prudent under the circumstances and any harm results (through a collision or otherwise), the valet would be liable to the person who suffered harm.
LIABILITY OF A CORPORATION FOR ANY ACTIONS OF A VALET
Oklahoma has long recognized the law of respondeat superior. Respondeat superior is the doctrine that an employer is liable for the negligence of an employee if the employee’s tortious act was committed in the course of employment and within the employee’s authority.10 If a valet is a paid employee of a corporation, the corporation is liable for the valet’s negligence.
A nonprofit corporation is also liable for a valet’s negligence, even if the valet is a volunteer. Okla. Stat. Tit. 76 §31(B) reads,
In any civil action against a charitable organization or not-for-profit corporation for damages based upon the conduct of a volunteer, the doctrine of respondeat superior shall apply, notwithstanding the immunity granted to the volunteer in subsection A of this section.
The language “notwithstanding the immunity granted to the volunteer in subsection A of this section” makes clear that, even if the valet is not personally liable, the nonprofit could still be liable for the valet’s conduct.11 This means if the valet is a volunteer of a nonprofit corporation, the nonprofit would still be liable for a valet’s negligence, just as a corporation would be liable for a valet’s negligence if he or she is an employee.
A further theory, under which a corporation could be liable for the conduct of a parking valet, is negligent entrustment:
Negligent entrustment of an automobile occurs when the automobile is supplied, directly or through a third person, for the use of another whom the supplier knows, or should know, because of youth, inexperience, or otherwise, is likely to use it in a manner involving unreasonable risk of bodily harm to others, with liability for the harm caused thereby.12
If a corporation knew that a valet had a “propensity for becoming intoxicated,” this knowledge would be sufficient to result in liability to the corporation for negligent entrustment.13 Under this doctrine, if a corporation knew that a valet was likely to
use an automobile in a risky manner, the corporation could be liable for negligent entrustment.
The care that a valet must use to avoid liability depends on whether or not the valet is paid. If the valet is paid, the valet must use “at least ordinary care” of the automobile. If the valet is unpaid, the valet must use “slight care.” If the valet is acting in good faith within the scope of the valet’s duties as a volunteer for a nonprofit organization, the valet personally would be shielded from liability unless the valet acted with gross negligence or wanton or willful misconduct. If a vehicle is lost or injured during the vehicle’s deposit and the valet does not inform the owner of the circumstances of the loss or injury, the valet would be presumed to have acted with gross negligence. A valet can also be liable if the valet wrongfully uses a vehicle and any damage results, or if the valet in driving a vehicle does not use the degree of care that is reasonable and prudent under the circumstances. A corporation, including a nonprofit corporation, can be liable for the negligence committed by a valet in the course of the valet’s employment. The corporation can be liable for the valet’s negligence even if the valet is personally immune from liability. To obtain the benefits of valet parking, a corporation must also take adequate steps to avoid the liability that occurred when Standard Parking’s valet struck Thyce Colyn.
ABOUT THE AUTHOR
Kyle Persaud received his B.A. from Oklahoma Wesleyan University and his J.D. from the TU College of Law. He is currently a solo practitioner in Bartlesville where he practices civil, family and probate law.
1. Christine Barcia, “Bicyclist Struck by Valet Driver Allegedly Taking Short Cut”, National Law Journal 17 (May 2017); Mike Lindblom, “Bicyclist Severely Injured in Crash with Parking Valet Is Awarded $38M,” Seattle Times www.seattletimes.com/seattle-news/transportation/bicyclist-severely-injured-by-valet-in-crash-awarded-38m/ (Dec. 15, 2016).
2. Jason Bucher, “Patient Satisfaction Increases with Valet Parking,” Parking: The Magazine of Parking Management and Operations 12 (August 2015).
3. Okla. Stat. Tit. 15 §442.
4. Loper v. Austin, 1979 OK 84, ¶9, 596 P.2d 544, 546.
5. Okla. Stat. Tit. 15 §461.
6. Okla. Stat. Tit. 15 §465.
7. Okla. Stat. Tit. 15 §463.
8. Okla. Stat. Tit. 15 §466.
9. 1996 OK 2, ¶7, 910 P.2d 1015, 1018.
10. Baker v. St. Francis Hosp., 2005 OK 36, ¶10, 126 P.3d 602, 605.
11. See also Hooper by and through Hooper v. Clements Food Co., 1985 OK 6, ¶9, 694 P.2d 943, 945 (holding that, even if an employee is not personally liable for negligence, the employer can still be found liable).
12. Sheffer v. Carolina Forge Co., LLC, 2013 OK 48, ¶12, 306 P.3d 544, 548.
13. Id. (quoting Nat’l Trailer Convoy, Inc. v. Saul, , ¶10, , 928-29).
Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 24 (November 2018)