I am looking at an online discussion among car techs about whether to repair a tire with damage in the tread next to the sidewall. There is consensus that such a repair violates industry standards and would not be safe. However, there is not consensus on the course of action. The answers can be categorized as:
No. Hell no.
I’d do it on my own car, but not a customer’s
Repair it but make the customer sign a waiver
Let’s say a customer is insistent that the shop do a repair that the shop knows is not safe. The shop states the risks in a waiver that the customer signs to accept all risk, and then do the repair. Then the tire blows out on the interstate and the car careens in front of a semi, causing life-changing injuries to the driver. Would the courts consider the waiver a complete release of liability to the shop?
I do not know the legal reasoning that would come into play. My expectation is that the shop, given its level of expertise, would be considered negligent in performing a repair that they know is dangerous and violates industry standards, regardless of customer consent. In addition, the customer may be considered unqualified to even grant such consent.
However, maybe the courts consider a waiver to be a magic incantation that absolves the shop of all liability.
While liability waivers are legally enforceable, they don’t necessarily fully relinquish liability. If anything, they result in the sharing of the liability. In the example you gave, people could still sue the garage that repaired the tire, but they would also sue the driver, as the liability waiver is evidence that the driver had knowledge of the negligence of repairing the tire this way.
I should have been clearer. The injured party is the owner of the car with the blown tire, the same person who signed the waiver. He is the one who is going to sue the shop. The truck just got a scratch on the grille.
The principle is still basically the same. If the victim shares responsibility, that doesn’t eliminate others’ responsibility. In your hypothetical, it reduces the liability of the shop to just part of the award (assuming the plaintiff wins) by some proportion as determined by the court (sue for a million, plaintiff is 50% liable, shop is on the hook for half a million).
IANAL. Just my observation of how these things have seen to go according to news reports and such.
I worked at an auto repair shop years ago, we used to get a lot of customers that really didn’t have the means to have their vehicles properly repaired. Many of these vehicles were not safe to be on the road but the owner’s couldn’t afford a few hundred dollars to make the car safe. The manager would have them sign a waiver stating that their car was not safe to drive on the road and that the owner accepted all responsibility. The worst one was a car with bald tires, bad brakes and an exhaust leak that fill the passenger compartment. The owner was a welfare mom with 3 little kids. We fixed the exhaust for free but it was sad to watch her drive off with the 3 kids knowing that the car was a death trap. Legally we couldn’t stop her.
Years ago I took a car to a “muffler place” (rhymes with Bidas) for brakes (the brakes were discounted due to a warranty thing). They did the brakes, then told me there was exhaust work that needed taken care of. I told them I would take my car to where I normally took my car. The guy told me that he couldn’t allow me to drive the car without repairing the exhaust.
I went outside and crossed the road to a phone booth (pre-cell days). I called the cops, saying my car had been stolen. When the cops arrived, I explained what had happened. The police were pissed off at the mechanic and got my car returned to me immediately.
When I had my regular car guy check out my exhaust he couldn’t find a problem.
“Bidas” was a competitor to the shop I worked at, it was only a few blocks away. One a regular basis we would have people come in claiming that shop said their cars needed some kind of repair. Many times we found nothing wrong. We also had a sign out front stating we would beat their prices so when we did find something wrong, we fixed it for less money.
And I think that would be (IANAL) an important distinction. It is one thing to tell the customer what repairs they need and have them refuse as opposed to the shop making a repair that they know is not safe.
Which is important for shops not to hold people’s cars hostage over made up shit. “Sorry, your Heisenfram resonator is not communicating with the PND. I can’t release your car to you until I fix it.”
I’m all for sticking it to a dickish mechanic but calling in what amounts to a vehicle theft in progress really isn’t the right move. That’s a lights&sirens, pistols drawn-response crime.
A reputable shop should not be making unsafe or partial repairs on a vehicle. End of story.
The options for the customer are:
The cost to repair will be X$$, these are the financing options we have available. And that answer can be we have no financing options available to you.
Remove your car from our shop. We are unable to service it.
Just because someone comes in with an unsafe vehicle that does not make it the responsibilty of the shop to repair it in order to get it back on the road, or sign a waver, or anything else. The car does not become the responsibility of the shop just because it was brought in. This is what needs to be done to the car, if you do not agree, we cannot work on it. You don’t need a liabilty waver to tell them to get out.
All of that is true but sort of veers away from the question that started the thread, which is a legal liability question. Because there are, in fact, shops that will do this.
IIAL, and this is vaguely related to what I do. The liability waiver may be enforceable against the customer. But it doesn’t bind anyone else. Say the shop performs an unsafe repair and the customer gets back on the road and hits someone else. The other party can sue the customer and the shop, because the shop owes a duty of care to foreseeable plaintiffs like other road users. And those plaintiffs have not waived their own rights.
Even a hold harmless/indemnification clause isn’t going to help, because that just gives the shop recourse against the customer for its share of liability. The customer’s insurance won’t pay back the shop because the indemnity agreement is not a covered risk. So the shop pays some percentage of the judgment to the injured third party and has a piece of paper allowing it to recover from the customer. But a customer who pays for a partial repair is probably not going to have the ability to pay.
I’m not licensed in your jurisdiction, results may vary, this is not legal advice blah blah blah.
(Indemnification basically means agreeing to cover another party’s costs for your own negligence, wrongdoing, etc. Say, a road construction company agreeing to reimburse the local government if the government is sued for accidents caused by the construction barriers.)
Maybe - if I called the police and said my car has been stolen there would not be a lights and sirens response. Most of those are going to be people who discover that their parked car has been stolen and the police will just be taking a report. Maybe if I called it a " theft in progress" but probably not then either.
My cousin used to manage a Sears Auto center and told me a story about refusing to let a customer drive away a car. In her case, the brakes were a complete shambles and whomever the aggrieved customer called (either a parent or police) wound up taking my cousin’s side, and chewing out the car owner for letting the brakes become a clear and present danger for everyone on the road.
WRT a third party suit, this is why unsafe repairs should be done with a signed waiver and without a printed receipt.
I thnk the distinction is as mentioned about who is suing:
A third party injured because of a “fix” that should not have been done is in no way bound by the waiver. The garage owner could presumably turn around and sue the driver, saying “you said you’d accept liability - pay up my costs to the third party” but odds are a guy being that cheap doesn’t have the money in the first place. His insurance won’t cover that for him, I assume - and probably at that point, the garage owner is being sued because the damages exceed the driver’s insured amount.
The driver if injured presumably could try to sue the garage. It then comes down to what a jury (or judge) thinks. Both are at fault. Experience has shown juries like places with big pockets, whether it’s over a cup of hot coffee or a medical malpractice claim. I assume “Bidas” might have a problem, but Joe’s garage probably wouldn’t figure as “place with deep pockets”. But then, part of the lawsuit would hinge on how clear the garage made it to the driver the risk involved. That then becomes a he-said-he-said situation.
Simplest situation for the garage is to avoid risky repairs. “Take it elsewhere or do it yourself”. As long as you safely fix one option you were asked to fix - you have done the job you were hired to do.
However, AFAIK there’s no liability in letting someone drive off in a vehicle whose problem you haven’t touched. Any lawsuit there would come down to “you didn’t warn me” which opens a whole different can of worms on how to prove that. I presume CYA would be a copy of the estimate - “$600 to fix the brakes - THIS CAR IS UNSAFE TO DRIVE AS IS” and keep a copy for yourself.
The tire shops/oil change places (not my regular mechanic) will put on the bill “suggested services” with a verbal explanation from the service advisor. Then if refused the bill will say “customer refused suggested services” or something along that line. I would say that removes the liability from the business no matter how unsafe the vehicle may or may not be.
My regular mechanic will tell you on a scale of 1-10 how serious whatever wrong is. If it is an 8,9,10 he will be fixing it soon for me. He will, for regular customers, do a band aid fix until you have the money to get it fixed correctly or schedule a time where you can be without a vehicle for a few days while it is getting repaired.