cannot avail itself of the § 34-101 affirmative defense, then
the Court should find that the plaintiffs are entitled to
summary judgment on the issue of liability, claiming that the
defendant's liability to plaintiffs is actually that of an
insurer. Notwithstanding contrary statutory limitations when
applicable, the plaintiffs maintain that under the common law
doctrine of infra hospitium, the hotel is strictly liable for
the theft of personal property held in the care of the hotel.
Blakemore v. Coleman, 701 F.2d 967 (D.C.Cir. 1983). There are
several common law exceptions to this doctrine, none of which,
the plaintiffs contend, apply in the instant case. Property
stolen or destroyed, while in the care of a host hotel, by an
act of God, public enemy, or guest negligence relieves the host
hotel of the strict liability doctrine that would otherwise bind
it. Skyways Motor Lodge v. General Foods Corp., 403 A.2d 722
(Del. 1979). The first two exceptions are not applicable and the
plaintiffs disclaim any negligence on their part that would
trigger the third.
In sum, the plaintiffs maintain that, because the defendant
cannot avail itself of the § 34-101 affirmative defense and the
plaintiffs were not negligent, the defendant should be held
strictly liable for the fair market value of the stolen items.
In its cross motion for summary judgment, the defendant
maintains that it may use the § 34-101 affirmative defense that
it has at its disposal because it provided a suitable depository
for the plaintiffs' valuables and conspicuously posted notice of
its non-liability for theft or loss on the wall next to the safe
located in the closet. Furthermore, the defendant maintains that
the plaintiffs were well aware of the existence of the suitable
depository and the hotel's policies since the plaintiffs had
frequented the hotel on several prior occasions. The defendant
notes that not only was a summary of § 34-101 posted to put
guests on notice, but the hotel also posted a second notice
informing guests that the in-room convenience safes (located in
the closets) were not a substitute for the safety deposit boxes
maintained behind the front desk lobby for storage of valuables.
The defendant maintains that the safety deposit boxes behind the
front desk are the only "suitable depository" boxes and that
notice to that affect was posted in the plaintiffs' room right
next to the in-room convenience depository box and notice. The
defendant argues that the plaintiffs were well aware of the
preferred hotel policy of placing valuables in the safety
deposit boxes behind the front desk because the plaintiffs had,
in fact, done so in the past. The defendant also maintains that
it was not "usual, common or prudent" for the plaintiffs to
place $1.2 million dollars worth of jewelry in the in-room
convenience safe, and that the plaintiffs admitted that they
usually do not travel with property of that value, effectively
rebutting the plaintiffs' contention that the defendant knew or
should have known the value of the property that the plaintiffs
would bring with them to the hotel on the occasion at issue.
The defendant also contends that the plaintiffs' negligence
based claims of breach of warranty and duty to the invitee are
not recognized in the District of Columbia, and should be
dismissed as such. The defendant maintains that no DC court has
ever maintained a cause of action based on breach of warranty of
safety and security. The defendant points to several DC cases in
which courts have held precisely the opposite. In Croce v.
Hall, Blumenthal v. Cairo Hotel Corp., and Battle v. George
Washington University, DC courts have consistently held that
the only applicable standard to determine negligence liability
in this jurisdiction is whether the
owner of an establishment has exercised "reasonable care" under
the circumstances. 657 A.2d 307 (D.C. 1995); 256 A.2d 400, 402
(D.C. 1969); 871 F. Supp. 1459, 1461 n. 3 (D.C. 1994). Because DC
does not recognize a breach of safety and security warranty
claim, the plaintiffs' claims based on such should be dismissed.
Furthermore, the DC Circuit has held this jurisdiction has
"abolished common law distinctions between invitees and
licensees and instead adopted a reasonable care standard to
persons lawfully upon the premises." Battle at 1461 n. 3. So
that the plaintiffs' claim that the hotel breached an invitee
duty should also be dismissed. Finally, the defendant maintains
that to the extent that the counts alleged by the plaintiffs in
their complaint are duplicative, the court should consider them
as consolidated, or simply dismiss them. Cooke-Seals v.
District of Columbia, 973 F. Supp. 184 (D.C. 1997) (dismissing
duplicative counts because they would require "redundant and
inefficient use of judicial resources").
The plaintiffs' motion for summary judgment is denied for the
following reasons. The common law rule of infra hospitium, to
the extent that it exists in DC, has been limited and qualified
by § 34-101 of the DC Code, which contains an affirmative
defense that the defendant can avail itself of in the instant
case for the following reasons.
The bar on hotel liability of a guest's property loss is
extinguished, under the statute, if the hotel a) fails to
display a copy of the statute, and b) fails to post the notice
conspicuously, or c) the property is that which a prudent guest
would usually or commonly keep in their room with the reasonable
expectation that the hotel would guard against its loss.
Contrary to the plaintiffs' contentions none of these factors is
fatal to the defendant's affirmative defense on the facts of
this case, and no reasonable jury, based on the evidence
proffered by the plaintiffs, could make a finding to the
First, § 34-101 applies when the host hotel has either posted
a "printed copy of § 34-101 (or summary thereof)." Id. As
maintained by the defendant and admitted by the plaintiffs, the
hotel did post a summary of § 34-101 next to the safe in which
the plaintiffs placed their valuables. This was sufficient to
place the plaintiffs on notice and satisfy the defendant's
obligation under the statute to do such. Second, the posting was
"conspicuous" enough to put the plaintiffs on notice as evinced
by the fact that the notice is placed right next to the in-room
convenience depository box, as well as the fact that the
plaintiffs admit to having seen the notice during various prior
stays at the hotel. Third, the plaintiffs' decision to place
$1.2 million dollars worth of jewelry in their hotel room safe,
which was noticed with the warning that more suitable safety
deposit boxes were maintained at the front desk of the hotel,
was not "usual, common, or prudent" as evinced by the
plaintiffs' own statement that they had never brought property
of that much value to the hotel before, and that they usually do
not travel with property of that much value.
Even if the defendant does not prevail on its affirmative
defense claim, which this Court finds that it does, the
plaintiffs still have not shown that they are entitled to
summary judgment as a matter of law for the following reasons.
First, several of the plaintiffs' counts, namely breach of
safety and security warranty, breach of duty to invitee, and
gross negligence, are not recognized by this jurisdiction as
being actionable in cases pertaining to property loss in hotel
establishments, and are for that reason dismissed.
Second, the plaintiffs have failed to establish the bare bones
of their negligence claim because they have failed to show that
the defendant did not exercise reasonable care. The facts are
supportive of the contrary conclusion. Not only did the
defendant provide for in-room convenience safes, but the
defendant also posted notice next to those safes that it
considered only the safety deposit boxes maintained at the front
desk to be suitable depositories to leave valuables in, for
purposes of the statute which they also posted a summary of.
Furthermore, the plaintiffs' lack of prudence in choosing to
place $1.2 million dollars worth of jewelry in a hotel room
safe, an act that is not usual, common, or prudent, would make
them contributorily negligent. "In this jurisdiction, the
contributory negligence of the plaintiff is a complete bar to
recovery." Elam v. Ethical Prescription Pharmacy, Inc.,
422 A.2d 1288, 1289 n. 2 (D.C. 1980); Massengale v. Pitts,
737 A.2d 1029, 1032 (D.C. 1999).
For the aforementioned reasons, this Court denies the
plaintiffs' motion for partial summary judgment on both counts,
and grants the defendant's summary judgment motion, finding the
defendant not liable for the plaintiffs' property loss.
A separate order shall issue on this date.
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