Urbano v. Days Inn of America, Inc.

295 S.E.2d 240 (1982)

Tomas H. URBANO v. DAYS INN OF AMERICA, INC.; Office Parks of Charlotte, Inc., d/b/a Days Inn Budget Luxury Motels; Commercial Management, Inc.; and Days Inn Budget Luxury Motels.

No. 8126SC1121.

Court of Appeals of North Carolina.

September 21, 1982.

*241 Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by Gaston H. Gage, Max E. Justice and Christian R. Troy, Charlotte, for plaintiff-appellant.

Craighill, Rendleman, Clarkson, Ingle & Blythe, P. A. by J. B. Craighill and Nancy E. Foltz, Charlotte, for defendant-appellees.

WELLS, Judge.

The principal questions presented in this appeal are two: one, whether defendant Office Parks was under a duty to plaintiff to exercise reasonable care to protect plaintiff from criminal acts of third persons on defendant's motel premises; and two, whether the provisions of G.S. 72-1(a)[1] provide plaintiff with a warranty of personal safety while plaintiff was a guest at defendant's motel. We answer the first question, yes, and the second, no.

In Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 281 S.E.2d 36 (1981), our Supreme Court dealt with the duty of a *242 shopping center to protect its business invitees from the criminal acts of third persons on its premises. In recognizing such a duty, the court stated that "foreseeability is the test in determining the extent of a landowner's duty to safeguard his business invitees from the criminal acts of third persons". In Foster, the court also made it clear that a parking lot provided by a business owner for the use of his invitees is considered a part of the business premises. See also Rappaport v. Days Inn of America, Inc., 296 N.C. 382, 250 S.E.2d 245 (1979).

In Peters v. Holiday Inns, Inc., 89 Wis.2d 115, 278 N.W.2d 208 (1979), the Wisconsin Supreme Court stated the rule for innkeepers in the following terms:

[T]he conduct of hotel innkeepers in providing security must conform to the standard of ordinary care. In the context of the hotel-guest relationship, it is foreseeable that an innkeeper's failure to maintain adequate security measures not only permits but may even encourage intruders to rob or assault hotel patrons.

For other cases where the court's of other states have recognized the duty of innkeepers to exercise reasonable care to protect their guests from the criminal acts of third persons on the hotel or motel premises, see Annot. 70 A.L.R.2d 628, 646, § 9 and A.L.R.2d Later Case Service.

The materials before the trial court in this case tended to show that defendant Office Parks knew of at least 42 episodes of criminal activity taking place on its motel premises during a period of three years preceding the date of plaintiff's injury. At least 12 of the episodes occurred during the three and one half months preceding plaintiff's injury. While none of these criminal episodes involved an assault on a guest, there was one armed robbery on the premises and seven illegal entries into motel rooms.

The materials before the trial court show without dispute that the motel premises were not guarded or patrolled by security officers employed by the motel, but that defendant Office Parks relied on routine visits by local police to provide security. These materials also showed that defendant's motel parking lot was not fenced in or otherwise enclosed, and that the area where plaintiff's room was located may have been dimly lighted.

We are persuaded that under the general rules set out in Foster, the materials before the trial court in this case raised triable issues as to whether defendant Office Parks should have reasonably foreseen that the conditions on its motel premises were such that its guests might be exposed to injury by the criminal acts of third persons and whether defendant Office Parks exercised reasonable care to protect plaintiff from injury from such acts. We therefore hold that as to plaintiff's first claim for relief, based upon defendant's negligence, summary judgment for defendant Office Parks was improvidently entered.

As to plaintiff's second claim for relief, based upon an implied warranty of safety, we hold that summary judgment for defendant Office Parks was appropriate. Under our decisional law, an innkeeper or other occupier of land is not the insurer of the personal safety of business invitees. Foster, supra; Rappaport, supra. Plaintiff's argument that the provisions of G.S. 72-1(a) provide him with such a warranty of personal safety is not supported by any cited decisions of our courts; and we are not aware of any such decisions. G.S. 72-1(a) does no more than state the common law duty of an innkeeper to provide suitable lodging to guests, and carries with it no warranty of personal safety. See Waugh v. Duke Corp., 248 F. Supp. 626 (M.D.N.C., 1966).

In one of his assignments of error, plaintiff contends that Judge Allen's denial of defendant Days Inn's motion for summary judgment was binding on Judge Snepp as to defendant Office Park's motion. We do not agree. Although it may appear logically inconsistent for one trial judge to keep the non-operating franchisor in the case and another to let the operator-franchisee out, each defendant was entitled to have its motion considered and ruled upon separately. *243 Under these circumstances, Judge Snepp did not overrule Judge Allen's previous judgment. Compare Carr v. Carbon Corp., 49 N.C.App. 631, 272 S.E.2d 374 (1980), cert. denied, 302 N.C. 217, 276 S.E.2d 914 (1981).

Defendant contends that summary judgment in its favor was appropriate as to plaintiff's claim for punitive damages. The question of whether plaintiff is entitled to have an issue of punitive damages submitted to the jury must be determined in light of the evidence presented at trial.

The results are:

As to summary judgment on plaintiff's claim for relief for defendant Office Park's negligence, Reversed.

As to summary judgment on plaintiff's claim for relief on defendant Office Park's contractual warranty of plaintiff's personal safety, Affirmed.

Affirmed in part; Reversed in part; and Remanded.

HEDRICK and ARNOLD, JJ., concur.

NOTES

[1] 72-1(a) Every innkeeper shall at all times provide suitable lodging accommodations for persons accepted as guests in his inn or hotel.