Appeal from Judgment of the Court of Common Pleas, Civil Division, of Clearfield County, No. 84-1475-CD.
Joseph Colavecchi, Clearfield, Stephen L. Dugas, Johnstown, for appellee.
Rowley, Wieand and Del Sole, JJ. Del Sole, J., files a dissenting opinion.
[ 356 Pa. Super. Page 388]
The sole issue in this appeal is whether a motor inn which provides an area in which its patrons can park their automobiles becomes liable on a theory of implied contract to a patron whose vehicle is stolen by a third person. The trial court held that under the circumstances of the instant case there could be no such liability and entered summary judgment in favor of the owner of the motor inn. We affirm.
[ 356 Pa. Super. Page 389]
On Friday, June 15, 1984, Gerald J. Dunegan, a dentist, together with his wife and two dental assistants, drove to the Green Tree Holiday Inn, a motor inn owned by appellee, Apico Inns of Green Tree, Inc., for the purpose of attending a dental seminar. Upon arrival, Dunegan registered at the front desk. Prominently displayed on the front desk was a sign which said: "We [the inn] are not responsible for damage to or theft from any parked automobile." After completing his registration, Dunegan parked his vehicle, a 1983 Oldsmobile, on a paved, unfenced lot provided by the inn for parking by its guests. Dunegan paid no separate fee for parking his vehicle, and the motor inn did not issue a claim ticket. In addition, the motor inn did not employ parking lot attendants to supervise the entrances and exits of the parking area. After Dunegan had selected a parking place, he locked the doors to his automobile, retaining the keys, and proceeded to his room. Later that evening or early the next morning, his Oldsmobile was stolen from the lot. When the vehicle was later found, it had been stripped of its parts and was appraised as a total loss.
Dunegan commenced an action against the owner of the motor inn to recover the value of the automobile and its contents. The complaint averred two theories of recovery: 1) breach of a contract of bailment; and 2) negligent breach of an implied contractual duty to prevent the theft of automobiles from the parking lot. The motor inn owner moved for summary judgment.*fn1 During oral argument thereon, Dunegan abandoned the bailment theory and elected to proceed against the motor inn owner solely on the basis that the owner of the motor inn had negligently
[ 356 Pa. Super. Page 390]
breached a duty of care imposed by an implied contract. The trial court entered summary judgment for the owner of the motor inn, holding that there was no implied contract requiring that it safeguard appellant's automobile against theft by the independent act of a third person. Dunegan appealed.
"Summary judgment 'shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Morgan v. Johns-Manville Corp., 354 Pa. Super. 58, 61, 511 A.2d 184, 186 (1986) quoting Pa.R.C.P. 1035(b).
The duty of care owed by the operator of a parking lot is determined according to the legal relationship existing between the operator of the lot and an individual who parks his or her automobile there. 38 Am.Jur.2d Garages, and Filling and Parking Stations, § 29. See: Taylor v. Philadelphia Parking Authority, 398 Pa. 9, 11-12, 156 A.2d 525, 526-527 (1959); Sparrow v. Airport Parking Co. of America, Inc., 221 Pa. Super. 32, 35-36, 289 A.2d 87, 90 (1972). See also: Lewis v. Ebersole, 244 Ala. 200, 201, 12 So.2d 543, 544 (1943). Pennsylvania courts have recognized three types of legal relationships which may be created. The distinguishing factor is the extent to which the parking lot operator has exercised control over the vehicles which have been parked upon its lot. See: Taylor v. Philadelphia Parking Authority, supra; Sparrow v. Airport Parking Co. of America, Inc., supra.
The first relationship recognized by the courts is that of bailor and bailee. It exists "where the garage attendants collect fees, assume control of the cars, park them and move them about within the garage as they find convenient, the keys are left in the cars and tickets are issued as means of identifying cars upon redelivery." Taylor v. Philadelphia Parking Authority, supra, 398 Pa. at 12, 156 A.2d at 526-527. Where this relationship exists, the lot owner is
[ 356 Pa. Super. Page 391]
generally responsible for loss or damage to vehicles under its control. Id., 398 ...