Mar 25 2015, 10:34 am
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEE
Joe Keith Lewis James J. Shea, Sr.
Marion, Indiana Timothy W. DeGroote
Andrew S. Williams
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
April Goodwin, Tiffany March 25, 2015
Randolph, and Javon Court of Appeals Case No.
Washington, 27A02-1407-CT-526
Appeal from the Grant Superior
Appellants-Plaintiffs,
Court
v. The Honorable Jeffrey D. Todd,
Judge
Yeakle’s Sports Bar and
Cause No. 27D01-1105-CT-400
Grill, Inc.,
Appellee-Defendant.
Najam, Judge.
Statement of the Case
[1] This case presents yet another opportunity for Indiana’s appellate courts to
clarify the Indiana test for determining whether a duty exists in a negligence
action, an issue that has created confusion at every level of our judiciary. There
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are two tests in Indiana. First, if a duty is well-established in our case law, and
the case before the court is substantially similar to that case law, then that duty
applies. If, on the other hand, the case before the court presents facts and
circumstances that have not been addressed in prior decisions of Indiana’s
appellate courts, then in determining whether a duty exists, we must balance
the three factors articulated in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991),
including the reasonable foreseeability of harm to the person injured.
[2] Here, April Goodwin, Tiffany Randolph, and Javon Washington (collectively
“the Appellants”) filed a complaint against Yeakle’s Sports Bar and Grill, Inc.
(“the Bar”) alleging that the Bar was negligent when it failed to protect them
from criminal acts committed by Rodney Carter on the Bar’s premises. The Bar
moved for summary judgment, and the trial court granted that motion
following a hearing. On appeal, the Appellants raise a single issue for our
review, namely, whether the trial court erred when it entered summary
judgment in favor of the Bar.
[3] The parties dispute whether a duty existed concerning whether the Bar could
have reasonably foreseen Carter’s criminal acts. But the facts demonstrate that
this is a straight-forward premises liability case, and the duty in such cases is
well-established in our case law. As such, reasonable foreseeability is not part
of the analysis with respect to the Bar’s duty. As this was the only argument
raised to the trial court and was the basis of the court’s entry of summary
judgment for the Bar, the trial court’s entry of summary judgment was
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erroneous as a matter of law. Accordingly, we reverse and remand for further
proceedings.
Facts and Procedural History
[4] During the early morning hours of August 28, 2010, Goodwin, Randolph, and
Washington were socializing with friends at Yeakle’s, a small bar in Marion.
Carter and his wife were also there, and they were positioned near Washington
and the others. At some point, Carter thought he heard Washington make a
derogatory remark about Carter’s wife, and Carter shot Washington. 1 Carter
separately, and accidentally, shot Goodwin and Randolph.2
[5] The Appellants filed a complaint against the Bar alleging that it
was negligent in providing a safe place for their patrons to
socialize as follows:
a. By negligently failing to provide security for its patrons;
b. By negligently failing to search Rodney Carter for weapons;
c. By otherwise negligently failing to warn plaintiffs that Rodney
Carter was armed and dangerous.
Appellants’ App. at 15. The Bar filed a motion for summary judgment alleging
that Carter’s criminal acts were unforeseeable as a matter of law and, therefore,
that it did not have a duty to protect the Appellants from being shot. Following
1
Yeakle’s prohibited guns on the premises.
2
All three victims survived their gunshot wounds.
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a hearing, the trial court entered summary judgment in favor of the Bar. This
appeal ensued.
Discussion and Decision
[6] The Appellants contend that the trial court erred when it entered summary
judgment in favor of the Bar. In particular, the Appellants maintain that
Carter’s criminal acts were foreseeable and the trial court erred when it
concluded that the Bar owed them no duty to protect them from being shot.
We hold that the Bar had a duty to protect the Appellants from harm, but we
do not address the foreseeability of Carter’s criminal acts in resolving this issue.
Instead, a determination of whether the shootings were reasonably foreseeable
goes to the issue of whether the Bar breached its duty, an issue which was not
raised on summary judgment.
[7] Our standard of review is well-settled.
We review summary judgment de novo, applying the same
standard as the trial court: “Drawing all reasonable inferences in
favor of . . . the non-moving parties, summary judgment is
appropriate ‘if the designated evidentiary matter shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.’” Williams v.
Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
fact is ‘material’ if its resolution would affect the outcome of the
case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the
undisputed material facts support conflicting reasonable
inferences.” Id. (internal citations omitted).
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The initial burden is on the summary-judgment movant to
“demonstrate[] the absence of any genuine issue of fact as to a
determinative issue,” at which point the burden shifts to the non-
movant to “come forward with contrary evidence” showing an
issue for the trier of fact. Id. at 761-62 (internal quotation marks
and substitution omitted). And “[a]lthough the non-moving
party has the burden on appeal of persuading us that the grant of
summary judgment was erroneous, we carefully assess the trial
court’s decision to ensure that he was not improperly denied his
day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
omitted).
Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to
Hughley).
[8] We emphasize that summary judgment is a “high bar” for the moving party to
clear in Indiana. Id. at 1004. “In particular, while federal practice permits the
moving party to merely show that the party carrying the burden of proof [at
trial] lacks evidence on a necessary element, we impose a more onerous burden:
to affirmatively ‘negate an opponent’s claim.’” Id. at 1003 (quoting Jarboe v.
Landmark Comm. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)).
[9] The issue of a landowner’s duty to protect an invitee from the criminal acts of a
third party has been addressed by our courts in numerous significant cases. Our
supreme court recently set out the general law underlying the question of duty
in negligence actions as follows:
The essential elements for a negligence action are “(1) a duty
owed to the plaintiff by the defendant, (2) a breach of the duty,
and (3) an injury proximately caused by the breach of duty.”
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Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011) (citing
Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1123
(Ind. 2010)). Where there is no duty, there can be no breach, and
thus the party cannot be found negligent. Pfenning, 947 N.E.2d at
398. Whether a duty exists is generally a question of law for the
court. Id. In making this determination, “a three-part balancing
test developed by this Court ‘can be a useful tool.’” Id. (quoting
Kephart, 934 N.E.2d at 1123) (citing N. Ind. Pub. Serv. Co. v.
Sharp, 790 N.E.2d 462, 465 (Ind. 2003)) (referencing the factors
enunciated in Webb[, 575 N.E.2d 992 at 995]: “(1) the
relationship between the parties, (2) the reasonable foreseeability
of harm to the person injured, and (3) public policy concerns”).
However, this test is only needed “in those instances where the element of
duty has not already been declared or otherwise articulated.” Sharp, 790
N.E.2d at 465; see also Paragon Family Rest. v. Bartolini, 799
N.E.2d 1048, 1053 (Ind. 2003) (“Where, as in this case, the
alleged duty is well-established, there is no need for a new
judicial redetermination of duty.”).
Yost v. Wabash College, 3 N.E.3d 509, 515 (Ind. 2014) (emphasis added).
Relevant to the instant appeal, our supreme court has declared that the Webb
balancing test is unnecessary where a particular duty is well-established. Id.
But our courts have not consistently followed this rule since Sharp and Bartolini
were handed down in 2003.
[10] Here, for instance, in concluding that the Bar did not owe a duty to the
Appellants to protect them from the shootings, the trial court relied on this
court’s opinion in Merchant’s National Bank v. Simrell’s Sports Bar and Grill, Inc.,
741 N.E.2d 383 (Ind. Ct. App. 2000), which pre-dated Sharp and Bartolini. In
Simrell’s, which also involved a shooting at a bar, another panel of this court
relied on a trilogy of opinions by our supreme court that had held that the
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determination of whether a landowner owes an invitee a duty to take
reasonable care to protect the invitee against a third party criminal attack
requires consideration of the totality of the circumstances to determine whether
the criminal act was reasonably foreseeable. Id. at 387 (citing Delta Tau Delta v.
Johnson, 712 N.E.2d 968, 973 (Ind. 1999); Vernon v. Kroger Co., 712 N.E.2d 976,
979 (Ind.1999); L.W. v. Western Golf Ass’n, 712 N.E.2d 983, 984-985 (Ind.
1999)). The Simrell’s court held that, because the shooting was not reasonably
foreseeable, the bar did not owe the plaintiff a duty of care to protect him from
being shot.
[11] However, only four years after the Delta Tau Delta trilogy, our supreme court
rejected application of the Webb balancing test where the existence of a duty is
already “well-established.” Bartolini, 799 N.E.2d at 1053. In Bartolini, the
plaintiff, who was a patron of the defendant’s pub, was assaulted by other
patrons in the parking lot. In addressing the issue of whether the defendant
owed the plaintiff a duty to protect him from the criminal acts of third parties,
our supreme court explained in relevant part as follows:
Landowners have a duty to take reasonable precautions to
protect their invitees from foreseeable criminal attacks. Delta Tau
Delta[, 712 N.E.2d at 973]. In addition, we have observed that
the duty of a business to exercise reasonable care extends to
keeping its parking lot safe and providing a safe and suitable
means of ingress and egress. Vernon[, 712 N.E.2d at 979]. [More
recently, in Sharp, 790 N.E.2d at 465, we] recognized that an
individualized judicial determination of whether a duty exists in a
particular case is not necessary where such a duty is well-settled. Thus,
there is usually no need to redetermine what duty a business
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owner owes to its invitees because the law clearly recognizes that
“[p]roprietors owe a duty to their business invitees to use
reasonable care to protect them from injury caused by other
patrons and guests on their premises, including providing
adequate staff to police and control disorderly conduct.” Id.,
(quoting Muex v. Hindel Bowling Lanes, Inc., 596 N.E.2d 263, 266
(Ind. Ct. App. 1992)). This duty only extends to harm from the
conduct of third persons that, under the facts of a particular case,
is reasonably foreseeable to the proprietor.
Muex, 596 N.E.2d at 267.
In three cases handed down together four years ago, this Court
held that the determination of whether a landowner owed an
invitee a duty to take reasonable care to protect the invitee
against a third party criminal attack requires consideration of the
totality of the circumstances to determine whether the criminal
act was reasonably foreseeable. [Western Golf, 712 N.E.2d at 984-
985]; Vernon, 712 N.E.2d at 979; Delta Tau Delta, 712 N.E.2d at
973. This analysis includes looking to “all of the circumstances
surrounding an event, including the nature, condition, and
location of the land, as well as prior similar incidents.” Western
Golf, 712 N.E.2d at 985 (holding incidents of isolated childish
pranks and actions in college co-ed living facility, absent evidence
of prior violent acts or sexual assaults, do not make rape
foreseeable); Vernon, 712 N.E.2d at 980 (holding frequent
shoplifting and physical confrontations with escaping shoplifters,
plus frequent police runs to premises, shows reasonable
foreseeability that a shopper might be injured by crime);
and Delta Tau Delta, 712 N.E.2d at 974 (holding that prior
instance and information regarding sexual assaults at fraternity
house demonstrated reasonable foreseeability of a sexual assault).
While the number, nature, and location of prior similar incidents
are substantial factors, “the lack of prior similar incidents will not
preclude a claim where the landowner knew or should have
known that the criminal act was foreseeable.” Id. at 973. We
emphasized that “when the landowner is in a position to take
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reasonable precautions to protect his guest from a foreseeable
criminal act, courts should not hesitate to hold that a duty
exists.” Id. at 974.
Upon the question of whether an individualized redetermination
of duty is necessary where the general duty is otherwise well-
settled, there is thus a procedural inconsistency between
Sharp and the trilogy of Western Golf, Vernon, and Delta Tau
Delta. There is no doubt, however, that reasonable foreseeability
is an element of a landowner or business proprietor’s duty of
reasonable care. The issue is merely at what point and in what
manner to evaluate the evidence regarding foreseeability. We believe
that Sharp provides the better answer. Where, as in this case, the alleged
duty is well-established, there is no need for a new judicial
redetermination of duty. The court’s function was merely to adequately
inform the jury of the applicable duty, and the jury was then to determine
whether the Pub breached this duty of reasonable care to protect its
invitees from foreseeable criminal attacks.
Id. at 1052-53 (emphases added).
[12] While Sharp and Bartolini provide clear precedent that the Webb balancing test
set out in Delta Tau Delta does not apply where a duty is well-established, our
supreme court revisited this issue in Kroger v. Plonski, 930 N.E.2d 1 (Ind. 2010),
where the plaintiff was assaulted in a Kroger parking lot. In reversing the grant
of summary judgment for Kroger, the court resurrected the pre-Bartolini
“totality of the circumstances” test of foreseeability in determining whether a
duty existed, stating,
[t]he more challenging inquiry is whether in a given case,
involving business owners and their invitees, a particular element
of duty has been met. This is so because the “duty only extends
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to harm from the conduct of third persons that, under the facts of
a particular case, is reasonably foreseeable to the proprietor.”
Bartolini, 799 N.E.2d at 1052. Although reasonable foreseeability
is ordinarily a question of fact for the jury to decide, see Humphery
v. Duke Energy Ind., Inc., 916 N.E.2d 287, 295 (Ind. Ct. App.
2009), in the context of duty—which is a question of law—see
Estate of Heck v. Stoffer, 786 N.E.2d 265, 268 (Ind. 2003),
reasonable foreseeability is determined by the court. It is in this
context that the court considers the “totality of the
circumstances.” Delta Tau Delta[, 712 N.E.2d at 972-73];
Vernon[, 712 N.E.2d at 979]; [Western Golf, 712 N.E.2d at 984-
85]. More precisely, the court must examine “all of the
circumstances surrounding an event, including the nature,
condition, and location of the land, as well as prior similar
incidents to determine whether a criminal act was foreseeable.”
Delta Tau Delta, 712 N.E.2d at 972.
Id. at 7.
[13] But the court then went on to
emphasize that this examination is not an inquiry into whether or to
what extent a landowner owes a duty to a business invitee. That issue
is settled: “Landowners have a duty to take reasonable
precautions to protect their invitees from foreseeable criminal
attacks.” Bartolini, 799 N.E.2d at 1052. Rather, our inquiry is
focused on whether a discreet element of the duty has been satisfied.
[14] Id. (emphases added). Thus, on the one hand, the court declared that Kroger
owed its business invitee a general duty of care, as a matter of law. But, on the
other hand, the court stated that each case requires an “inquiry” into “whether
a discreet element of the duty has been satisfied,” and it held that summary
judgment was inappropriate because Kroger had failed to demonstrate that
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“criminal activity on its premises at the time of the Plonski assault was not
foreseeable.” Id. The court did not explain the apparent incongruity between
Bartolini, which eschews a foreseeability determination in the context of duty
where, as in Kroger, the duty is well-established, and its holding that whether a
duty exists depends on the foreseeability of the criminal conduct.
[15] Our supreme court most recently addressed this issue in Yost. In Yost, the
plaintiff alleged in relevant part that Wabash College, the owner of a fraternity
house, was negligent when it failed to protect Yost from the alleged criminal act
of a fraternity member. 3 N.E.3d at 514. The court did not cite to Kroger, but,
instead, it returned to the Sharp and Bartolini duty analysis and reiterated that
[w]hether a duty exists is generally a question of law for the
court. Pfenning[, 947 N.E.2d at 398]. In making this
determination, [the Webb balancing test can be a useful tool.] Id.
However, this test is only needed “in those instances where the element of
duty has not already been declared or otherwise articulated.” Sharp,
790 N.E.2d at 465; see also [Bartolini, 799 N.E.2d at 1053]. With
respect to claims of liability against an owner for injuries sustained on the
premises, the duties of a landowner are well established. “A landowner
owes to an invitee or social guest ‘a duty to exercise reasonable care for his
protection while he is on the landowner’s premises.’” Pfenning, 947
N.E.2d at 406 (quoting Burrell v. Meads, 569 N.E.2d 637, 639
(Ind. 1991)).
Id. at 515 (emphases added, some citations and parentheticals omitted). The
court then explained that,
[t]o delineate this duty we have adopted the Restatement
(Second) of Torts § 343 (1965): A possessor of land is subject to
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liability for physical harm caused to his invitees by a condition
on the land if, but only if, he (a) knows or by the exercise of
reasonable care would discover the condition, and should realize
that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger,
or will fail to protect themselves against it, and (c) fails to
exercise reasonable care to protect them against the danger. Id.
(quoting Burrell, 569 N.E.2d at 639-40).
Within the contours of this duty, we have held that landowners
“have a duty to take reasonable precautions to prevent
foreseeable criminal acts against invitees.” [Western Golf, 712
N.E.2d at 985]; see also Delta Tau Delta[, 712 N.E.2d at 973].
Yost, 3 N.E.3d at 515 (emphases added). The court concluded by holding that,
because Wabash College, the landlord, did not control the premises where the
alleged crime occurred, it did not owe a duty to prevent foreseeable criminal
acts against the plaintiff. Id. at 516. Thus, in Yost, our supreme court followed
the rule set out in Sharp and Bartolini that, where a duty is well-established, a
judicial redetermination under the Webb duty analysis is unnecessary. Id. And
while the court in Yost cited to Western Golf and Delta Tau Delta, it did not do so
in the context of the Webb balancing test.
[16] When supreme court precedent is in apparent conflict, as it is between Kroger
and Yost, we are bound to follow the court’s most recent pronouncement on the
issue. Howse v. State, 672 N.E.2d 441, 444 (Ind. Ct. App. 1996), trans. denied.
Thus, we follow our supreme court’s analysis in Yost and hold that the Webb
balancing test does not apply here, where the duty owed by the Bar to its
invitees is well-established. In particular, the Bar owed the Appellants a duty to
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take reasonable precautions to protect them from foreseeable criminal attacks,
and we need not make an independent judicial determination as to the
existence of that duty here. Yost, 3 N.E.3d at 515; Bartolini, 799 N.E.2d at
1052. Rather, the issue of the foreseeability of whether one patron of a bar
would shoot others is more appropriately resolved as a question of fact in the
context of the bar’s alleged breach of its duty. See, e.g., Winchell v. Guy, 857
N.E.2d 1024, 1029 (Ind. Ct. App. 2006) (following Bartolini, 799 N.E.2d at
1053-54).
[17] Here, the Bar’s sole contention in its summary judgment motion was that it did
not owe a duty to protect the Appellants from Carter’s criminal acts because
they were not reasonably foreseeable. But, as our supreme court has held,
reasonable foreseeability does not determine duty where, as here, the duty is
well-established. See Yost, 3 N.E.3d at 515; Bartolini, 799 N.E.2d at 1053;
Sharp, 790 N.E.2d at 465. The Bar owed the Appellants a duty to protect them
from the foreseeable criminal acts of third parties. As such, the Bar cannot
satisfy its burden to affirmatively negate the duty element of the Appellants’
negligence claims. See Hughley, 15 N.E.3d at 1003. Thus, the trial court erred
when it entered summary judgment in favor of the Bar, and we reverse and
remand for further proceedings.
Reversed and remanded for further proceedings.
Mathias, J., and Bradford, J. concur.
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April Goodwin, Tiffany Randolph, and Javon Washington v. Yeakle's Sports Bar and Grill, Inc.
Combined Opinion