GARNER v. MARGERY LANE, INC. No. 69-395.
242 So.2d 776 (1970)
Rose H. GARNER, Joseph Kramer and Rose Kramer, Appellants, v. MARGERY LANE, INC., Doing Business As Sun Spa, Appellee.
District Court of Appeal of Florida, Fourth District.
Rehearing Denied January 28, 1971.
James A. Dixon, Jr., of Dixon, Bradford, Williams, McKay & Kimbrall, Miami, for appellants.
Michael P. Weisberg, of West & Goldman, Miami, and Leonard Rivkind, of Rosen & Rivkind, Miami Beach, for appellee.
Larry S. Stewart, of Frates, Fay, Floyd & Pearson, Miami, for amicus curiae.
Harold L. Ward, of Fowler, White, Collins, Gillen, Humkey & Trenam, and Smathers & Thompson, Miami, for amicus curiae.
In these consolidated cases plaintiffs appeal from a final summary judgment
The controversy arose as a result of an armed robbery of the contents of safety deposit boxes containing plaintiffs' valuables which occurred at defendant's hotel while plaintiffs were guests there. Upon arriving at defendant's hotel, plaintiffs signed registration cards bearing the following legend:
Plaintiffs went to their rooms, but returned shortly thereafter with valuables they wished to place with the hotel for safekeeping. They were each given a safety deposit box in which they placed their valuables, and returned the boxes to the desk clerk. The hotel safe was not available for the safeguarding of such valuables. At the time plaintiffs placed their valuables in the boxes they were given a card labeled "SAFE DEPOSIT BOX RECORD" containing blanks for signatures and other vital information. No space was provided on the card for an estimate of the value of the property entrusted to the hotel, nor did the hotel make any inquiries concerning value.
Notices containing a paraphrase of F.S. 509.111, F.S.A., supplied by the Florida Hotel and Restaurant Commission were posted in various locations in the hotel, in substantial compliance with the notice provisions of F.S. 509.101, F.S.A.
Defendant hotel, relying on plaintiffs' failure to tender an estimate of value as required by F.S. 509.111, F.S.A., denied liability for the loss in excess of $1,000.00 and moved for summary judgment. The trial court accepted defendant's interpretation of the statute and granted summary judgment in favor of the hotel, stating, among other things:
It is apparent that the effect of this holding is to place the burden of compliance with the statute on the guest rather than the innkeeper, even where the innkeeper misleads the guest as to the extent of responsibility it intends to assume over valuables the guest places with it for safekeeping. This is too heavy a burden to place on the guest, especially in view of the superior position and knowledge of the hotel with regard to the mandates of the statute. We therefore reverse, holding that the theories of both waiver and estoppel raised by appellant apply to the case before us.
Plaintiffs in contending that defendant has waived its limited liability under the statute rely primarily on Safety Harbor Spa, Inc. v. High, Fla.App. 1962, 137 So.2d 248, and Fuchs v. Harbor Island Spa, Inc., supra, footnote 2. In High, decided by our sister Second District Court of Appeal, plaintiff, a guest of defendant hotel, declared a deposit of $7,000.00 in cash with the hotel. After the original declaration of value and the acceptance by the hotel, a poor method of bookkeeping was employed in connection with withdrawals of money by the guest. The court refused to relieve the hotel of liability in excess of statutory limits when the hotel sought to invoke the statutory limit of liability because no detailed record of withdrawals was kept. The theoretical basis of the decision is unclear, and the court concludes without elucidation at the end of its opinion: "We are of the opinion that since the hotel did not require a strict compliance with the statute they cannot avoid liability on this ground." Although the result is palatable it is apparent this opinion provides little help in resolving the issues before us.
The Fuchs decision is more helpful. The Court there, considering a fact situation identical in all material respects to that sub judice,
Thus, the conduct relied on by the Fuchs court to show waiver consisted primarily of the representations of responsibility made by the hotel on the registration card.
We cannot quarrel with this finding in Fuchs. Waiver is defined as the intentional relinquishment of a known right.
Notwithstanding our conclusion that the hotel's conduct constituted a waiver of its rights under the statute, we also find that the hotel should be estopped by its conduct to raise its limited liability under the statute.
The essential elements of an equitable estoppel as established in the early case of Coogler v. Rogers, 1889, 25 Fla. 853, 7 So. 391, and followed in numerous later cases, are:
In our case, as we have pointed out above, plaintiff guests, immediately upon their arrival at defendant's hotel, were handed registration cards bearing a large legend, telling them that "* * * VALUABLE PACKAGES MUST BE DEPOSITED AT THE OFFICE * * * OTHERWISE THE MANAGEMENT WILL NOT BE RESPONSIBLE FOR ANY LOSS." Obviously, a guest could (and did, in this case) reasonably understand this to mean that the management would be responsible for a loss if the guest did make a deposit of his valuables. Therefore, it is clear that the hotel in the case at bar induced plaintiffs to change their position injuriously by its conduct. This constitutes an estoppel under the Coogler rule.
Whether the guests had or did not have actual notice of F.S. 509.111, F.S.A., is immaterial to either an estoppel or a waiver since they may reasonably have assumed, as the Fuchs case concludes, based on the management's representations of responsibility, that the hotel intended to waive the benefits of the statute in order to provide better service to its guests. Furthermore, assuming the guests were actually aware of the statutory liability limits, it is possible that had the hotel not lulled them into a sense of false security they would have taken their valuables to some safer place for protection, i.e., a bank.
The defendant, by its conduct, having both waived the benefits of the statute and estopped itself from asserting it, it was error for the trial court to limit defendant's liability to the statutory maximum. Further, since the record reveals no dispute over material facts, apart from the value of the property deposited with defendant, the final summary judgment for defendant appealed from herein is reversed and this case is remanded with instructions to enter summary judgment for plaintiffs in keeping with the views expressed herein, with trial to be held on the issue of damages alone.
Reversed and remanded.
OWEN, J., and STEWART, JAMES R., JR., Associate Judge, concur.
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