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11/02/87 CHRISTOPHER PLANT AND SUSANNAH PLANT v.

Filed: November 2, 1987.

CHRISTOPHER PLANT AND SUSANNAH PLANT, PLAINTIFFS-APPELLANTS
v.
HOWARD JOHNSON'S MOTOR LODGE, #294 COMPANY AND JOHN DOE, THE CLERK ON DUTY JANUARY 5, 1982, WHOSE TRUE CHRISTIAN NAME IS UNKNOWN, DEFENDANTS-APPELLEES



APPEAL FROM THE LAKE SUPERIOR COURT, ROOM ONE, The Honorable Cordell C. Pinkerton, Judge, Cause No. 182-1300. Court of Appeals No. 3-885 A 213.

Pivarnik, J., Dissenting to denial of transfer; Shepard, C.j., concurs.

ON PETITION TO TRANSFER

Petition to transfer denied.

PIVARNIK, Judge, Dissenting to denial of transfer

I Dissent to the majority's denial of transfer brought by Defendants-Appellees Howard Johnson's Motor Lodge. While I agree that entry of the particular facts of this care, I am disturbed by the holding of the Court of Appeals.

The Legislature has addressed an innkeeper's liability for the property of its guests. Ind. Code. Ann. § 32-8-28-2 (Burns Supp. 1987). I agree with the Court of Appeals that this statute does not apply in the instant case since the statute is directed to property brought into a hotel or inn. Therefore, the moving van and its contents parked in an outside parking lot are not subject to Ind. Code § 32-8-28-2.

I further agree with the Court of Appeals in its holding that there was no bailment for hire or for mutual benefit created here. No. actual or constructive delivery of possession to the motel occurred since the Plant v. Howard Johnson's Lodge (1986), Ind.App., 500 N.E.2d 1271, 1273.

It is also elementary that our tort law imposes liability for the failure to use ordinary care where there is a duty to do so. Whether such a duty exists is a question of law that arises from some relationship between the parties. Neal v. Homebuilders, Inc. (1953), 232 Inc. 160, 111 N.E.2d 280, reh. denied 232 Inc. 160, 111 N.E.2d 713.

Here, however, the Court of Appeals imposed a specific duty on innkeepers to their patrons, stating:

It seems equally beyond dispute in modern society with its love of and dependence upon travel by motor vehicle that available parking for such vehicles is an integral and essential ingredient to establishing the relationship. From this we may unhesitatingly conclude that such an innkeeper has incurred the duty to exercise ordinary care to prevent loss or damage to the vehicles of its guests.

Plant, 500 N.E.2d at 1274. No authority is cited for this holding and may research develops none to support it. I fear this holding will cause confusion among the trial lawyers and trial Judges who attempt to interpret and apply it.

Are we creating a new "Judge-made innkeepers' liability law" by imposing this special duty on innkeepers who supply parking lots because of modern society's love for, and dependence on, travel by motor vehicle? Further, will this holding apply to all businesses supplying parking lots to their patrons? The argument can equally be made that modern society's dependence on motor vehicles demands parking lots as an integral part of business sites for the convenience of business partons. Such is true of modern shopping center, general merchandise stores, grocery stores, drug stores, restaurants, medical facilities, and virtually every kind of commercial service society enjoys. If such is to be the law, it ought to be enacted by the Legislature, as the direct representative of Indiana citizens with a primary duty of making policy changes in our laws based on developments in our society such as those expressed by the Court of Appeals here.

Indiana law regarding the duty owned by a business furnishing a parking lot to partons is expressed in Hammond v. Allegretti (1974), 262 Ind. 82, 311 N.E.2d 821. Hammond sets out that a patron of a business is a business invitee and that a business landowner owes a duty of ordinary reasonable care to maintain business premises in a reasonably safe condition.

"'While it is recognized that the proprietor of a store is not burdened by law with any unusual degree of care for the safety of customer, and in that regard is required only to exercise ordinary care to keep his store in a reasonably safe condition, and is not an insurer of the safety of his customers, nevertheless, he must maintain it in such manner as not to cause injury to one lawfully entering the store for the purpose of making purchases.'Great Atlantic and Pacific Tea Co. v. Custin, (1938), 214 Ind. 54, 59, 13 N.E.2d 542, 544, 14 N.E.2d 538. 'Invitation, whether express or implied, imposes the duty to use ordinary care that the place of invitation be reasonably safe for the invitee.'Silvestro v. Walz, (1943), 222 Ind. 163, 170, 51 N.E.2d 629. 'This duty is an active, continuous one. It owned her the duty of protection against injury through negligent acts of its employees.'Sears Roebuck & ...


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