Shepherd Fleets, Inc. v. Opryland USA, Inc.

KOCH, Judge,

concurring.

The majority’s opinion reaches a proper result, albeit by a circuitous route. I have prepared this separate opinion to address the points raised in the briefs and during argument concerning the significance of the Tennessee Supreme Court’s decision in Dispeker v. New Southern Hotel Co., 213 Tenn. 378 , 373 S.W.2d 904 (1963).

I.

After tracing Tennessee’s common law back to its roots, the majority concludes that the common law standard of liability of innkeepers to their guests is part of the law of this state. This is undoubtedly true, except to the extent that the common law standard has been modified by the Tennessee Supreme Court or by the General Assembly. 1

Unfortunately, the majority’s opinion leaves the impression that the common law is immutable and that once a principle of common law is recognized or followed, it becomes an indelible part of our jurisprudence. This is simply not the case. Tennessee’s common law is not static. It continues to grow and change to accommodate the needs of modern society. Powell v. Hartford Accident & Indem. Co., 217 *924 Tenn. 503, 509-10 , 398 S.W.2d 727, 730-31 (1966); Box v. Lanier, 112 Tenn. 393, 407 , 79 S.W. 1042 , 1045 (1904); Jacob v. State, 22 Tenn. (3 Hum.) 493 , 515 (1842).

Were it not for the Tennessee Supreme Court’s specific approval of and reliance on the common law standard of an innkeeper’s liability in Maxwell Operating Co. v. Harper, 138 Tenn. 640, 641-42 , 200 S.W. 515 , 516 (1918), I would conclude that the common law standard is no longer necessary or appropriate. The law of bailments, as it presently exists, adequately recognizes and balances the respective interests of inn keepers and their guests.

The stare decisis value of Maxwell Operating Co. is open to question. Ever since this case was decided, the courts have gone to some length to avoid relying on the common law standard of inn keeper’s liability. Dispeker v. New Southern Hotel Co., 213 Tenn. 378 , 373 S.W.2d 904 (1963); Kallish v. Meyer Hotel Co., 182 Tenn. 29 , 184 S.W.2d 45 (1944); Sewell v. Mountain View Hotel, 45 Tenn.App. 604 , 325 S.W.2d 626 (1959); Andrew Jackson Hotel v. Platt, 19 Tenn.App. 360 , 89 S.W.2d 179 (1935).

However, this Court should not presume to modernize or modify the decisions of the Tennessee Supreme Court. Bloodworth v. Stuart, 221 Tenn. 567, 572 , 428 S.W.2d 786, 789 (1968); Richardson v. Johnson, 60 Tenn.App. 129, 136 , 444 S.W.2d 708, 711 (1969). Any further modification of an inn keeper’s common law liability must be left to the Tennessee Supreme Court or the General Assembly.

II.

Opryland seeks to avoid the common law standard of liability in two ways. First, it insists that Mrs. Crocker’s automobile was not “infra hospitium,” or in its exclusive custody. Second, it contends that the Tennessee Supreme Court has adopted a different standard of liability with regard to automobiles. These arguments misconstrue the significance of the Supreme Court’s opinion in Dispeker v. New Southern Hotel Co., 213 Tenn. 378 , 373 S.W.2d 904 (1963).

Dispeker involved a hotel’s liability for the damage to its guest’s automobile after an off-duty hotel employee stole it from the hotel’s parking lot. The Court of Appeals found that the automobile was in the exclusive custody of the hotel and that the common law standard of liability was applicable. Dispeker v. New Southern Hotel Co., 52 Tenn.App. 379, 390 , 373 S.W.2d 897, 902 (1963). The Supreme Court denied the hotel’s petition for writ of certiorari and issued one of its rare opinions explaining why it did so.

The hotel’s petition questioned the applicability of the common law standard to the facts. The Supreme Court found it “unnecessary to decide [the] question” because the hotel’s liability could be predicated on another theory. Dispeker, 213 Tenn. at 386 , 373 S.W.2d at 908. Thus, far from announcing a different standard of inn keeper liability with regard to automobiles, the Supreme Court’s opinion is limited to the facts of the case and stands only for the proposition that the inn keeper involved in the case could be liable to its guest on a theory analogous to misdelivery.

The facts in this case differ significantly from those in Dispeker and clearly support the applicability of the common law standard of liability. The determining factor is whether the guest’s property was placed in the custody and control of the hotel. Governor House v. Schmidt, 284 A.2d 660, 661 (D.C.Ct.App.1971); Vilella v. Sabine, Inc., 652 P.2d 759, 763 (Okla.1982) (Opala, J., concurring). That a garage or parking lot is open to the public or is not enclosed or contiguous to the hotel is not controlling as long as an automobile has been placed in the hotel’s care and custody. Plant v. Howard Johnson’s Motor Lodge, 500 N.E.2d 1271, 1272-73 (Ind.Ct.App.1986).

Mrs. Crocker turned her automobile and keys over to a hotel employee when she checked in. An Opryland employee parked the automobile in the hotel’s “valet park *925 ing” area and kept the keys. This parking lot was on Opryland property adjacent to the hotel, and access to the lot was limited to hotel employees. Neither Mrs. Crocker nor any member of the public was permitted in the lot. In light of these facts, it is difficult to argue that Mrs. Crocker had not placed her automobile in Opryland’s custody and that the automobile was not “infra hospitium” at the time it was damaged.

. The General Assembly has limited an innkeeper's liability with regard to "money, jewels, ornaments, or samples" in Tenn.Code Ann. §§ 62-7-103 & 104 (1986) and with regard to "personal baggage" in Tenn.Code Ann. §§ 62-7-10S & 106 (1986).