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ANNE S. LEVIN v. DESERT PALACE INCORPORATED T/A CAESAR'S PALACE (08/19/83)

filed: August 19, 1983.

ANNE S. LEVIN, A MINOR BY HER PARENTS AND NATURAL GUARDIANS, MARVIN J. LEVIN AND CHARLOTTE W. LEVIN AND MARVIN J. LEVIN AND CHARLOTTE W. LEVIN IN THEIR OWN RIGHT, APPELLANTS,
v.
DESERT PALACE INCORPORATED T/A CAESAR'S PALACE



No. 241 Philadelphia 1982, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 875 December 1976.

COUNSEL

Marvin J. Levin, in propria persona.

Joel P. Fishbein, Philadelphia, for appellee.

Wickersham, Rowley and Watkins, JJ.

Author: Wickersham

[ 318 Pa. Super. Page 608]

On September 7, 1976, Marvin Levin and his wife and daughter were guests at Caesar's Palace, a resort hotel in Las Vegas, Nevada owned by the defendant corporation. The Levins claim that in the early morning hours while they were asleep, an unknown intruder entered their suite and stole jewelry valued at $18,550 and $1,500 in cash.

The Levins allege that the negligence of the defendant hotel in failing to provide adequate security measures was the cause of their property loss. Some of the facts concerning this allegation are in dispute. It is clear that each inner door to the Levins' suite had posted on it a warning to use the night lock before retiring and a notice that safe deposit boxes were available for guests' valuables. Plaintiffs and defendant disagree, however, as to whether all the doors to the suite were equipped with dead-bolt mechanisms and as to whether the dead-bolts and latches that did exist were in operating order.

On January 23, 1980, by agreement of the court below and counsel for the parties, the facts upon which the plaintiffs were to rely to establish their case were made part of the record by stipulation as though a jury had been impaneled and sworn and had heard the evidence. Counsel for the plaintiffs stated that he was proceeding on a negligence theory only and would present no evidence with regards to "gross negligence." (RR at 23a). Defendant then moved for a non-suit.

The non-suit was granted by the court below on the ground that the Nevada Innkeepers Statute, Nev.Rev.Stat.

[ 318 Pa. Super. Page 609]

ยง 651.010 et seq. (1953), required that plaintiffs prove gross negligence on the part of the defendant, and that plaintiffs, by their counsel, admitted an inability to establish the requisite gross negligence. Following the refusal of the court below to vacate the non-suit, plaintiffs appealed. Judgment was subsequently entered.

Appellants state the question presented to this court as follows:

Did the lower court properly grant appellee's motion for a non-suit on the ground that the Nevada Innkeepers' Statute permitted ...


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