                                                                              FILED
                                                                        Oct 12 2016, 8:53 am

                                                                              CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANTS                                    ATTORNEYS FOR APPELLEE
Mark K. Phillips                                           Terry G. Farmer
Boonville, Indiana                                         Daniel R. Robinson, Jr.
                                                           Bamberger Foreman Oswald &
                                                           Hahn, LLP
                                                           Evansville, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Brenda K. (Layman) Smith and                               October 12, 2016
John C. Smith,                                             Court of Appeals Case No.
Appellants-Plaintiffs,                                     82A05-1509-CT-1635
                                                           Appeal from the Vanderburgh
        v.                                                 Circuit Court
                                                           The Honorable David D. Kiely,
Dunn Hospitality Group                                     Judge
Manager, Inc. d/b/a Comfort                                Trial Court Cause No.
Inn,                                                       82C01-1309-CT-444
Appellee-Defendant.



Riley, Judge.




Court of Appeals of Indiana | Opinion 82A05-1509-CT-1635 | October 12, 2016                      Page 1 of 9
                                    STATEMENT OF THE CASE

[1]   Appellants-Plaintiffs, Brenda K. (Brenda) and John C. Smith (collectively,

      Smiths), appeal the trial court’s summary judgment in favor of Appellees-

      Defendants, Dunn Hospitality Group Manager, Inc. d/b/a Comfort Inn

      (Comfort Inn) on the Smiths’ allegations of negligence pursuant to the

      Innkeeper Statute.


[2]   We affirm.


                                                      ISSUE

[3]   The Smiths raise two issues on appeal, which we consolidate and restate as:

      Whether the Comfort Inn was negligent as a matter of law pursuant to the

      Innkeeper Statute, Ind. Code Ch. 32-33-7.


                            FACTS AND PROCEDURAL HISTORY

[4]   On August 7, 2012, the Smiths became guests at the Comfort Inn, located in

      Evansville, Indiana, following a fire in their residence. They brought certain

      personal property with them that had survived the fire, including an insurance

      draft, a coin collection, and sports memorabilia. On August 8, 2012, the Smiths

      delivered the insurance draft to the management of the Comfort Inn for storage

      in the safety deposit box. On August 18, 2012, the Smiths were arrested and

      taken into custody for approximately two weeks before making bail. While the

      Smiths were in custody, their room rental was paid and their occupancy was

      not terminated.


      Court of Appeals of Indiana | Opinion 82A05-1509-CT-1635 | October 12, 2016   Page 2 of 9
[5]   During the Smiths’ incarceration, employees of the Comfort Inn allowed

      Daniel Crawley (Crawley) access to the Smiths’ room. The Smiths had not

      given any permission to the Comfort Inn to let Crawley enter their room. After

      gaining access to the room, Crawley took all of the Smiths’ personal

      possessions. Subsequent to allowing Crawley to access the Smiths’ room, the

      Comfort Inn handed the contents of the safety deposit box to Luke Warren

      (Warren). Warren was not authorized by the Smiths to receive these contents,

      which included the insurance draft. The Smiths later recovered the insurance

      draft from Warren.


[6]   On September 9, 2013, the Smiths filed a Complaint alleging negligence by the

      Comfort Inn for allowing Crawley to access their room and remove their

      personal belongings. On January 14, 2015, the Comfort Inn filed its motion for

      summary judgment, alleging that there was no genuine issue of material fact

      that its “maximum liability, if any, to the [Smiths] [is] capped at one hundred

      dollars,” pursuant to I.C. Ch. 32-22-7. In their response in opposition to the

      Comfort Inn’s motion, the Smiths claimed that the statute was not applicable as

      the Comfort Inn’s act was a criminal act and it had failed to protect the Smiths

      from the intentional tort of the third party. On March 31, 2015, the Comfort

      Inn filed a motion to strike the affidavits of Brenda and Robert Phillips, which

      was subsequently granted by the trial court.


[7]   On August 25, 2015, the trial court conducted a hearing on the Comfort Inn’s

      motion for summary judgment. On September 2, 2015, the trial court issued its



      Court of Appeals of Indiana | Opinion 82A05-1509-CT-1635 | October 12, 2016   Page 3 of 9
      “Findings of Fact, Conclusions of Law, and Summary Judgment Entry,”

      concluding, in pertinent part:

              The [Comfort Inn] has no liability to [the Smiths] or any other
              party for any money, jewels, ornaments, furs, bank notes, bonds,
              negotiable security, or other valuable papers, precious stones,
              railroad tickets, articles of silver or gold, or other valuable
              property of small compass belonging to or brought in by [the
              Smiths] since [the Smiths] failed to deliver any such property to
              the person in charge of the office for deposit in a safe. I.C. [§] 32-
              33-7-2.


              Any liability of the [Comfort Inn] for loss or damage to any
              personal property brought into the hotel by [the Smiths] shall not
              exceed two hundred dollars ($200). I.C. [§] 32-33-7-[3].


      (Appellant’s App. pp. 12, 13).


[8]   The Smiths now appeal. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION


                                             I. Standard of Review


[9]   Summary judgment is appropriate only when there are no genuine issues of

      material fact and the moving party is entitled to a judgment as a matter of law.

      Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the

      outcome of the case, and an issue is genuine if a trier of fact is required to

      resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts

      support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,

      761 (Ind. 2009).
      Court of Appeals of Indiana | Opinion 82A05-1509-CT-1635 | October 12, 2016      Page 4 of 9
[10]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       must determine whether there is a genuine issue of material fact and whether

       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. The party appealing the grant of summary judgment

       has the burden of persuading this court that the trial court’s ruling was

       improper. Id. When the defendant is the moving party, the defendant must

       show that the undisputed facts negate at least one element of the plaintiff’s

       cause of action or that the defendant has a factually unchallenged affirmative

       defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary

       judgment must be reversed if the record discloses an incorrect application of the

       law to the facts. Id.


[11]   We observe that in the present case, the trial court entered findings of fact and

       conclusions of law in support of its judgment. Special findings are not required

       in summary judgment proceedings and are not binding on appeal.

       AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

       App. 2004). However, such findings offer this court valuable insight into the

       trial court’s rationale and facilitate appellate review. Id.


                                              II. Innkeeper’s Statute



       Court of Appeals of Indiana | Opinion 82A05-1509-CT-1635 | October 12, 2016   Page 5 of 9
[12]   The common law rule imposed a strict rule of liability upon an innkeeper and

       was founded upon the public policy of an earlier day. This imposition of strict

       liability found its origin in the conditions existing in England in the fourteenth

       and fifteenth centuries. Minneapolis Fire & Marine Ins. Co. v. Matson Navigation

       Co., 352 P.2d 335, 337 (HI 1960). Inadequate means of travel, the sparsely

       settled country, and the constant exposure to robbers left the traveler with the

       inn practically his only hope for protection. Id. Innkeepers themselves, and

       their servants, were often as dishonest as the highwaymen roaming the

       countryside and were not beyond joining forces with the outlaws to relieve

       travelers and guests, by connivance or force, of their valuables and goods. Id.

       Under such conditions, it was purely a matter of necessity and policy for the

       law to require the innkeeper to exert his utmost efforts to protect his guests’

       property and to assure results by imposing legal liability for loss without regard

       to fault. Id.


[13]   And so, at common law, the innkeeper was practically an insurer of property

       brought by a guest to his inn and he was relieved of liability for the loss of such

       property only where the loss occurred through an act of God, through an act of

       a public enemy, or through the fault of the guest himself. 37 A.L.R. 1276,

       1279-80 (1971); Plant v. Howard Johnson’s Motor Lodge, 500 N.E.2d 1271, 1272

       (Ind. Ct. App. 1986), trans. denied. This innkeeper’s liability extended only to

       property that was “infra hospitium,” that is, property that was within the inn.

       Plant, 500 N.E.2d at 1272. However, it was widely recognized that property

       could be infra hospitium although it was not in the building used for the

       Court of Appeals of Indiana | Opinion 82A05-1509-CT-1635 | October 12, 2016   Page 6 of 9
       accommodation of the guests. Id. at 1272-73. Since the passing of years has

       erased much of the need for such absolute liability, the modern innkeeper is

       often permitted by statute to lessen his responsibility to certain limits. Id.


[14]   In Indiana, the legislature addressed an innkeeper’s liability for the property of

       its guests in the Indiana Code Chapter 32-33-7, also commonly referred to as

       the Innkeeper’s Statute. This statute divides the liability that may be incurred

       by an innkeeper into four different levels. The first level of liability involves

       “money, jewels, ornaments, furs, bank notes, bonds, negotiable security, or

       other valuable papers, precious stones, railroad tickets, articles of silver or gold,

       or other valuable property of small compass belonging to or brought in by the

       guests of the hotel.” I.C. § 32-33-7-2. If the hotel provides a safe and

       convenient place for the storage of these items, and the guest fails or neglects to

       deliver the property for placement in the safe, then the innkeeper incurs no

       liability. I.C. § 32-33-7-2(3). However, if the items had been stored, then the

       innkeeper is not liable for the loss or damage in any amount exceeding $600,

       “whether the loss or damage is occasioned by the negligence of the [innkeeper]

       or otherwise.” I.C. § 32-33-7-2(b).


[15]   The second level of liability relates to “the loss or damage to personal property,

       other than merchandise samples or merchandise for sale,” brought onto the

       premises by guests. I.C. § 32-33-7-3. Here, the liability of the innkeeper is

       capped at $200, regardless whether the loss or damage is occasioned by the

       negligence of the innkeeper, “unless the manager or proprietor has contracted in

       writing to assume greater liability.” I.C. § 32-33-7-3.

       Court of Appeals of Indiana | Opinion 82A05-1509-CT-1635 | October 12, 2016   Page 7 of 9
[16]   The third level of liability is capped at $300 and involves the loss of or damage

       to any merchandise samples or merchandise for sale, whether the loss or

       damage is occasioned by the negligence of the proprietor or manager or

       otherwise, unless the parties agreed upon a higher value in writing. I.C. § 32-

       33-7-4. The fourth and final level pertains to liability for the loss or damage to

       any property left by a guest after the guest has departed from the premises. I.C.

       § 32-33-7-5. Here, the innkeeper’s liability is that of a “gratuitous bailee” and

       may not exceed $100. I.C. § 32-33-7-5.


[17]   Because the Smiths recovered the insurance draft from Warren, the only

       provision applicable is I.C. § 32-33-7-3, relating to personal property, which

       caps the innkeeper’s liability at $200. It is well settled that rules of statutory

       construction require us to construe strictly those statutes which are in

       derogation of common law. Mooney v. Anonymous M.D. 4, 991 N.E.2d 565, 580

       (Ind. Ct. App. 2013), trans. denied. Moreover, when the legislature enacts a

       statute in derogation of common law, we presume that the legislature is aware

       of the common law, and does not intend to make any changes beyond what is

       declared in express terms or by unmistakable implication. Id.


[18]   The Smiths contend that the relevant provisions of the Innkeeper Statute are not

       applicable because “[t]he Comfort Inn’s agents facilitated the theft of the

       Smiths’ property.” (Appellants’ Br. p. 11). To support their argument, the

       Smiths rely on a negligence theory to state that “[t]he fact that the Smiths’

       personal property was removed from their room and disposed of without their

       consent or financial benefit clearly establishes injury proximately caused by the

       Court of Appeals of Indiana | Opinion 82A05-1509-CT-1635 | October 12, 2016   Page 8 of 9
       Comfort Inn’s act in allowing an unauthorized third party access to the Smiths’

       room.” (Appellants’ Br. p. 13). Nevertheless, besides the assertion in the

       Complaint that the Comfort Inn allowed Crawley to enter their room, the

       designated evidence is void of any indication that the Comfort Inn or its agents

       conspired with Crawley to commit a theft of the Smiths’ property. In fact, by

       specifically relying on a negligence theory in an attempt to establish an

       intentional tort or criminal activity on the part of the Comfort Inn, the Smiths

       place their situation squarely within the statutory provision of I.C. § 32-33-7-3.

       Therefore, we agree with the trial court that no genuine issue of material fact

       exists that would prevent entering summary judgment in favor of the Comfort

       Inn.


                                                CONCLUSION

[19]   Based on the foregoing, we affirm the trial court’s summary judgment in favor

       of the Comfort Inn.


[20]   Affirmed.


[21]   Barnes, J. concurs


[22]   Bailey, J. concurs in result




       Court of Appeals of Indiana | Opinion 82A05-1509-CT-1635 | October 12, 2016   Page 9 of 9
