
    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.
    No. 3-885 A 213.
    Supreme Court of Indiana.
    Nov. 2, 1987.
    William T. Enslen, Enslen, Enslen & Matthews, Hammond, for plaintiffs-appellants.
    Joseph Stalmack, Gavin, Stalmack, Kir-schner & Clark, Hammond, for defendants-appellees.
   ON PETITION TO TRANSFER

Transfer denied.

PIVARNIK, Justice,

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 summary judgment by the trial court was inappropriate because of the particular facts of this case, 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 Plants retained the keys and the parking lot was open. Plant v. Howard Johnson's Motor 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 Ind. 160, 111 N.E.2d 280, reh. denied 282 Ind. 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 my 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 patrons. Such is true of modern shopping centers, 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 owed by a business furnishing a parking lot to patrons 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 customers, 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 owed her the duty of protection against injury through negli-. gent acts of its employees.' Sears Roebuck & Co. v. Peterson (CCA 8th, 1935) 76 F.2d 243, 246. See also J.C. Penny [Penney ], Inc., v. Kellermeyer (1939), 107 Ind.App. 253, 19 N.E.2d 882, 22 N.E.2d 899; F.W. Woolworth Co. v. Moore (1943), 221 Ind. 490, 48 N.E.2d 644.' (emphasis added)."

Hammond, 262 Ind. at 87, 311 N.E.2d at 825, citing Robertson Brothers Department Store v. Stanley (1950), 228 Ind. 372, 378, 90 N.E.2d 809, 811. Plant imposes a duty on innkeepers and perhaps all commercial businesses beyond these well recognized duties. In addition to providing that by its negligence it will not cause harm to a patron using its parking lot, Plant now adds the duty to provide for the safe-keeping of the patrons' property on the parking lot from interference, damage, or theft by third parties. N.E.2d at 1274. Plant, 500

I believe the Court of Appeals was correct in finding summary judgment was inappropriate because of the particular facts of this case. There appears to be evidence that the patron inquired as' to the safety of his property and was assured by the innkeeper that the property would be safe on that lot since there was security provided by the innkeeper. These facts may justify presenting the issue to the trier of fact.

I would grant transfer and clarify the issue of liability to a business invitee.

SHEPARD, C.J., concurs.  