Nova Stylings, Inc. v. Red Roof Inns, Inc.

• Decision Date: 11 December 1987
• Docket Number: No. 60849,60849
• Citation: 242 Kan. 318,747 P.2d 107
• Parties: NOVA STYLINGS, INC., Plaintiff, v. RED ROOF INNS, INC., Defendant.
• Court: Kansas Supreme Court

Page 107

747 P.2d 107

242 Kan. 318

NOVA STYLINGS, INC., Plaintiff, v. RED ROOF INNS, INC., Defendant.

No. 60849.

Supreme Court of Kansas.

Dec. 11, 1987.

Syllabus by the Court

1. K.S.A. 36-402, which applies to an innkeeper's liability for the loss of or damage to a guest's property, is in derogation of the common law, and thus must be strictly construed.

2. A statute in derogation of common-law rights must not be so strictly construed as to violate the plain meaning of the statute.

3. K.S.A. 36-402 alters the common-law liability of an innkeeper for the loss of or damage to a guest's property, including actions against an innkeeper for negligence in caring for a guest's property.

4. Where the property of a guest falls within the designation of property in both subsections (b) and (c) of K.S.A. 36-402, the purpose for which the guest holds the property is controlling.

5. Where jewelry, gold, silver, diamonds, or other valuable stones are held by a guest as merchandise for sale or samples, subsection (b) rather than (c) of K.S.A. 36-402 applies to the loss of said property.

6. Under the provisions of K.S.A. 36-402, it is the guest's duty to give notice, and where a guest fails to give notice to the innkeeper of having merchandise for sale or samples, together with an itemized list of the property, the innkeeper is not liable in case of loss.

7. Where a guest is in possession of property belonging to a third party and fails to inform the innkeeper of that fact, the liability of the innkeeper for that property is the same under the provisions of K.S.A. 36-402 as it is for property owned by the guest.

On certification of four questions of law from the United States District Court for the District of Kansas. Question No. 1: K.S.A. 36-402 abrogates the common-law liability of an innkeeper for negligence in caring for a guest's property. Question No. 2: The provisions of K.S.A. 36-402(b) apply to the loss of sample merchandise consisting of jewelry. Question No. 3: K.S.A. 36-402(b) imposes no duty upon the innkeeper to ask a guest to identify property left for safekeeping or to provide an itemized list thereof. Question No. 4: K.S.A. 36-402 applies to limit an innkeeper's liability for the loss of property not belonging to a guest, when the guest fails to notify the innkeeper that the property belongs to another.

Kent Sullivan, of Morrison, Hecker, Curtis, Kuder & Parrish, Overland Park, argued the cause, and Pamela G. Kohler, A. Bradley Bodamer, and Michael J. Jerde, of the same firm, were with him on the briefs, for defendant.

Joel K. Goldman, of Shamberg, Johnson, Bergman & Goldman, Chartered, Overland Park, argued the cause, and Arthur A. Chaykin, of the same firm, and Howard L. Rossof, of Rossof, Shiffres & Barta, Los Angeles, Cal., were with him on the brief, for plaintiff.

ALLEGRUCCI, Justice:

This case was filed in the United States District Court for the District of Kansas and comes before this court by certification pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. We accepted certification.

The order from the United States District Court provides, in part:

"Pursuant to K.S.A. 60-3201 et seq., this court, upon its own motion, hereby certifies to the Kansas Supreme Court the following questions of Kansas law, which are deemed to be determinative of this action and as to which no controlling precedent exists in the decisions of the Kansas Supreme Court or Kansas Court of Appeals:

"(1) Whether K.S.A. 36-402 abrogates the common law liability of an innkeeper for negligence in caring for a guest's property?

"(2) Whether the provisions of K.S.A. 36-402(b) (dealing with the loss of sample merchandise) or K.S.A. 36-402(c) (dealing with the loss of jewelry) apply to the loss of sample merchandise consisting of jewelry?

"(3)(a) If K.S.A. 36-402(b) applies, whether that subsection imposes any affirmative duty upon the innkeeper to ask a guest, who requests the inn to safekeep his property without disclosing the nature of the property, to identify the property and provide an itemized list thereof?

(b) If K.S.A. 36-402(c) applies, whether, under similar circumstances, that subsection imposes an affirmative duty upon the innkeeper to (1) ask the guest to identify the property and provide an itemized list thereof and (2) provide the guest with a receipt?

"(4) Whether K.S.A. 36-402 applies to limit an innkeeper's liability for the loss of property not belonging to a guest, when the guest fails to notify the inn that the property belongs to another?"

The facts as certified by Chief Judge Earl E. O'Connor are as follows:

"This case arises out of the theft of property owned by the plaintiff from the defendant motel, Red Roof Inns, Inc. Darryl Kulwin was employed by plaintiff as a jewelry salesperson. In that capacity, Kulwin traveled throughout the country carrying with him jewelry, owned and manufactured by plaintiff, to show to prospective buyers. Panoria Ruston was a guest registered with the Red Roof Inn in Overland Park, Kansas. Ruston and Kulwin met at the inn and later made plans to leave to go to dinner. Kulwin asked Ruston to make arrangements with the desk clerk to leave his sample case in the office of the inn while they went out to dinner. Ruston asked the desk clerk if she could leave 'her bag' in the office of the inn. The clerk allowed Ruston to place the bag in the manager's office. An unidentified person obtained access to the manager's office with the clerk's knowledge and removed the case from the office.

"Neither Kulwin nor Ruston notified the clerk or any employee of Red Roof that the case contained jewelry samples, nor did they provide the clerk with an itemized list of the jewelry contained in the case. Ruston did, however, advise the clerk that the contents of the case were valuable and that it was only to be released to her. There was no specific written agreement between defendant and plaintiff that Red Roof Inn assumed liability for loss of the contents of the case. At all times relevant hereto, defendant had posted a copy of the applicable Kansas statutes, K.S.A. 36-401 et seq., governing the safekeeping of property for guests by an innkeeper in every guest room of the inn.

"Plaintiff's complaint alleges that defendant did not comply with the applicable Kansas statutes, K.S.A. 36-401 et seq., in that the clerk failed to ask Ruston for the identity of the contents of the bag and their value, and failed to issue a receipt for the bag. The complaint claims that the inn is liable to plaintiff for negligence in its own right and vicariously liable for the negligence of its clerk. Plaintiff seeks damages in the amount of $650,000.00, the claimed value of the lost jewelry."

The defendant, Red Roof Inns, filed a motion for summary judgment, alleging, first, that plaintiff Nova Stylings failed to meet the requirements of K.S.A. 36-402(b), and second, that the common-law liability of an innkeeper for negligence in caring for a guest's property has been abrogated by K.S.A. 36-401 et seq. The United States District Court, pursuant to K.S.A. 60-3201 et seq., certified four questions of law to this court.

It is the contention of the plaintiff that the first certified question should be answered in the negative. Plaintiff argues that the provisions of K.S.A. 36-402 were intended only to alleviate the common-law rule imposing strict liability on innkeepers for the loss of their guests' property, and that the statute provides no protection for an innkeeper who negligently causes the loss of the guests' property. We disagree. K.S.A. 36-402(b) provides:

"No hotel or motel keeper in this state shall be liable for the loss of, or damage to, merchandise for sale or samples belonging to a guest, lodger or boarder unless the guest, lodger or boarder upon entering the hotel or motel, shall give notice of having merchandise for sale or samples in his possession, together with an itemized list of such property, to the hotel or motel keeper, or his authorized agent or clerk in the registration office of the hotel or motel. No hotel or motel keeper shall be liable for any loss of such property designated in this subsection (b), after notice and itemized statement having been given and delivered as aforesaid, in an amount in excess of two hundred fifty dollars ($250), unless such hotel or motel keeper, by specific agreement in writing, individually, or by an authorized agent or clerk in charge of the registration office of the hotel or motel, shall voluntarily assume liability for a larger amount with reference to such property. The hotel or motel keeper shall not be compelled to receive such guests, lodgers or boarders with merchandise for sale or samples."

Plaintiff's attempt to create an ambiguity in the statute is not persuasive. The statute unambiguously provides that, where the guest fails to give notice to the innkeeper of having merchandise for sale or samples in his possession upon entering the inn, "[n]o hotel or motel keeper in this state shall be liable for the loss of, or damage to, merchandise for sale or samples belonging to a guest." The express, plain, and unambiguous wording of K.S.A. 36-402(b) extends the scope of the subsection to include actions for negligence. "When a statute is plain and unambiguous [a] court must give effect to the intention of the legislature as expressed [in the plain language of the statute], rather than determine what the law should or should not be." Johnson v. McArthur, 226 Kan. 128, 135, 596 P.2d 148 (1979). The plaintiff is correct that statutes in derogation of common-law rights should be strictly construed; however, that is not a license for this court to ignore the plain and unambiguous wording of the statute. Such statutes cannot be so strictly construed as to violate the plain meaning of the statute.

Kansas has never expressly adopted the common-law rule that an innkeeper acts as an insurer of his...