Garrett v. Impac Hotels 1, L.L.C.

MARY R. RUSSELL, J.,

dissenting.

I respectfully dissent because Impac Hotels 1, L.L.C., doing business as Holiday Inn St. Louis Airport North (“Hotel”), was not entitled to judgment as a matter of law, and a genuine issue of material fact existed.

Jack Garrett (“Guest”) claims liability against Hotel based on information he allegedly obtamed from a Hotel employee while he was staying at Hotel. Guest, a non-resident of the area, was taking advantage of Hotel’s offer of a lodging and parking package while he flew round-trip via the nearby airport. He maintains that during his stay he asked a Hotel employee whether it was safe to park in Hotel’s parking lot and the employee responded affirmatively. The crux of Guest’s argument stems from Hotel’s duty when responding to an inquiry as to the safety of its parking lot.

A special relationship exists between hotel operators, or innkeepers, and their guests “so as to impose affirmative duties [on hotel operators] in the protection of persons and property.” Virginia D. v. Madesco Inv. Corp., 648 S.W.2d 881, 885 (Mo. banc 1983) (noting that “[t]here is a special relationship between hotel operators ... and their guests, so as to impose *876affirmative duties in the protection of persons and property”); see also M.C. v. Yeargin, 11 S.W.3d 604, 612 (Mo.App.1999) (noting that “[t]he relationship between the innkeeper and its guests imposes affirmative duties upon the innkeeper in the protection of persons and property”).

Guest is not arguing that Hotel should have protected his truck following his checkout from Hotel. Indeed, Guest’s attorney acknowledged at oral argument that had he claimed damages against Hotel on a bailment theory, he was certain to lose, which is why he pursued a different theory of recovery. Guest’s claim is premised instead on the special relationship between himself and Hotel at the time of his inquiry about the parking lot and his right to present his case to a jury to allow it to delineate the scope of Hotel’s duty.

I find Hotel had an affirmative duty to protect Guest’s person and property at the time of his inquiry as to the safety of the parking lot. Although the trial court does not expound its reasons for granting summary judgment, a grant of summary judgment based on the conclusion that Hotel owed no duty of care to Guest at the time of his inquiry would be erroneous.

After a duty of care has been established, “[t]he important question for the jury in any negligence case is to determine what is reasonable or ordinary care considering the duty the defendant owes the plaintiff in the particular negligence case.” Cumming v. Allied Hotel Corp., 144 S.W.2d 177, 181 (Mo.App.1940). Whether Hotel’s duty to exercise reasonable care was satisfied by a sign in the parking lot warning users that they assume all risks and responsibility or whether it owed Guest a duty to respond to his questions in a particular manner is an issue for the jury to decide.1

Moreover, Guest alleges and I agree that contradictory evidence creates a genuine issue of material fact sufficient to survive summary judgment. Guest contends he was advised by one of Hotel’s employees that the lot was a safe place to leave his truck, despite the fact that scores of vehicles had been stolen from the lot. In contrast, Hotel contends Guest was aware of the risk of theft.

The majority opinion correctly states that a party may not create a genuine issue of material fact in order to avoid summary judgment “by introducing con-clusory allegations.” See Kellog v. Kellog, 989 S.W.2d 681, 687 (Mo.App.1999). Our standard of review further requires that on appeal from summary judgment, we review the record in the light most favorable to Guest because he is the party against whom judgment was entered. Letsinger v. Drury College, 68 S.W.3d 408, 410 (Mo. banc 2002) (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). Guest’s statements were not merely conclusory allegations; rather they were an account of his communication with Hotel’s employee. I find that the conflicting evidence consists of more than just “con-clusory allegations” and demonstrates the existence of a genuine issue of material fact.

Summary judgment should not have been granted because Hotel owed Guest a duty and a genuine issue of material fact *877existed as to whether that duty was breached. The jury should decide the extent of Hotel’s duty of care under the facts and circumstances of this case and determine whether Hotel acted in a reasonably prudent manner with respect to that duty.

. Hotel guests have survived summary judgment in other jurisdictions by alleging that hotel employees affirmatively misled them to believe their property would be safe in the hotel’s parking lot. See Fennema v. Howard Johnson Co., 559 So.2d 1231, 1234-35 (Fla.DistCt.App.1990); Plant v. Howard Johnson’s Motor Lodge, 500 N.E.2d 1271, 1272 (Ind.Ct.App.1986). See also David v. Prime Hospitality Corp., 676 So.2d 1049, 1050 (Fla.Dist.Ct.App.1996).