Brockwell v. Lake Gaston Sales and Service , 105 N.C. App. 226 ( 1992 )

412 S.E.2d 104 (1992) 105 N.C. App. 226

R.W. BROCKWELL, Plaintiff,
v.
LAKE GASTON SALES AND SERVICE, Defendant.

No. 919DC61.

Court of Appeals of North Carolina.

January 21, 1992.

Townsend and Bloom, by H. Lee Townsend, III, Emporia, for plaintiff, appellee.

Clayton and Clayton, P.A., by Theaoseus T. Clayton, Jr., Warrenton, for defendant, appellant.

HEDRICK, Chief Judge.

The sole question raised by this appeal is whether the trial court erred by failing to find that defendant's bailment liability to plaintiff had been expressly relieved by contract. Defendant contends the trial court erred in denying its motion for summary judgment and "directed verdict." (A motion to dismiss pursuant to N.C.R.Civ.P. 41(b) is the proper motion where the trial is before the judge without a jury). Essentially, defendant argues the "liability disclaimer" signed by the plaintiff, bailor, is an insurmountable bar to plaintiff's claim for relief. We disagree.

As a general rule, in an ordinary mutual benefit bailment, where there is no great disparity of bargaining power, the bailee may relieve himself from the liability imposed on him by the common law so long as the provisions of the contract do not run counter to the public interest. Insurance Assoc. v. Parker, 234 N.C. 20, 65 S.E.2d 341 (1951). Where the public has no interest in the subject matter of the contract and the contract involves only private concerns of the parties, a liability disclaimer will be enforced. Id.

However, some contractual provisions which attempt to avoid liability for a party's negligence which are contrary to law and against public policy are void and unenforceable. Hall v. Sinclair Refining Co., 242 N.C. 707, 89 S.E.2d 396 (1955); Insurance Assoc. v. Parker, supra.

Many courts hold that where the bailee makes it his business to act as bailee for hire, on a uniform and not an individual basis, it is against the public interest to permit him to exculpate himself from his own negligence. And the decided trend of modern decisions is against the validity of such exculpatory clauses or provisions in behalf of proprietors of parking lots, garages, parcel check rooms, and warehouses, who undertake to protect themselves against their own negligence by posting signs or printing limitations on the receipts or identification tokens delivered to the bailor-owner at the time of bailment.

Insurance Assoc. v. Parker, 234 N.C. at 23-24, 65 S.E.2d at 344.

In the present case, defendant, bailee, attempted to exculpate itself from liability for its own negligence where it "was [its] business to act as a bailee for hire on a uniform ... basis." Defendant, bailee, took plaintiff's boat, its contents, equipment and attachments into its sole possession in order to perform repairs on the boat in the regular course of its business, and we hold it was against public policy for defendant, bailee, to attempt to exculpate itself from the duty of ordinary care it owed to plaintiff, bailor. We therefore hold the liability disclaimer in the present case is void and unenforceable as a matter of law, and the judgment for plaintiff will be affirmed.

Affirmed.

WELLS and JOHNSON, JJ., concur.