DaShawn Powell v. Kevin Stuber d/b/a Bleachers Pub

FILED
Dec 13 2017, 6:11 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Stacy L. Kelley Kevin W. Kearney
Glaser & Ebbs Deneal M. Kushner
Indianapolis, Indiana Hunt Suedhoff Kalamaros, LLP
South Bend, Indiana

IN THE
COURT OF APPEALS OF INDIANA

DaShawn Powell, December 13, 2017
Appellant-Plaintiff, Court of Appeals Case No.
71A03-1705-CT-967
v. Appeal from the St. Joseph
Superior Court
Kevin Stuber The Honorable Jenny Pitts Manier,
d/b/a Bleachers Pub, Judge
Appellee-Defendant Trial Court Cause No.
71D05-1403-CT-44

Baker, Judge.

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[1] DaShawn Powell filed a negligence claim against Kevin Stuber d/b/a Bleachers

Pub (Bleachers) after Powell was attacked in the parking lot outside of

Bleachers and sustained injuries as a result. After our Supreme Court decided

Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384 (Ind. 2016), the trial

court reopened the deadline for dispositive motions and Bleachers moved for

summary judgment. The trial court granted the motion, finding, pursuant to

Goodwin, that Bleachers did not owe a duty to Powell. Powell appeals, arguing

that the trial court should not have reopened the deadline for dispositive

motions or granted summary judgment in favor of Bleachers. Finding no error,

we affirm.

Facts
[2] On July 31, 2012, around 1:30 a.m., Powell drove to Bleachers in Mishawaka

to play pool with a friend. Around 2:30 a.m., Powell left Bleachers and walked

to his vehicle in the parking lot. Someone called out to Powell; he turned in the

direction of the voice and was struck from behind by someone else. The

assailants hit him, stole the keys to his vehicle, stole his wallet, and ran away.

Powell did not notify anyone at Bleachers of the incident; instead, he got into

his vehicle and talked to his girlfriend on the phone.

[3] About five to ten minutes later, still sitting in his vehicle, Powell noticed that

the vehicle’s lights were flashing and the locks had been activated. One of the

assailants opened the vehicle door, and Powell hit him. The assailants fled to

another vehicle and Powell pursued them, grabbing the other vehicle and trying

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 to reclaim his keys. The driver put the vehicle in reverse and the mirror struck

Powell. He again grabbed onto the vehicle. The driver then drove away,

running over Powell in the process. Powell sustained serious injuries, including

a ruptured bladder, when the other driver ran over him.

[4] On March 5, 2014, Powell filed a complaint against Bleachers and other

parties,1 seeking damages for his injuries that he alleges were caused by

Bleachers’s negligence. The trial court eventually set a dispositive motion

deadline of February 12, 2015; that deadline was later reset to August 4, 2015,

by agreement of the parties. The trial had been set for May 12, 2016, but the

trial court rescheduled the trial for July 26, 2016, because of a conflict with a

criminal matter. At Powell’s request, the trial court again continued the trial to

October 12, 2016; that trial date was vacated for reasons not revealed by the

Chronological Case Summary. Appellant’s App. Vol. II p. 12.

[5] On November 1, 2016, Bleachers notified Powell of our Supreme Court’s recent

ruling in Goodwin and its possible effect on this case. On November 2, 2016,

Bleachers filed a motion to reopen the dispositive motion deadline based on

Goodwin. The trial court granted the motion to reopen the dispositive motion

deadline.

1
The other parties included the driver, the plaza owner, and the plaza owner’s estate representative. The
trial court granted summary judgment in favor of the plaza owner and his representative; Powell did not
appeal that ruling. Subsequently, Powell agreed to dismiss the driver from the lawsuit, leaving Bleachers as
the only defendant.

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[6] On December 28, 2016, Bleachers filed a motion for summary judgment.

Following briefing and a hearing, the trial court granted the motion on

February 21, 2017, finding, in pertinent part, as follows:

Plaintiff’s status on Defendant’s premises was as an invitee. The
broad classification of plaintiff properly assigned to Plaintiff is a
patron of a bar.

The type of harm to which Plaintiff was exposed is the likelihood
of criminal attack.

As an invitee, Plaintiff was owed a duty of reasonable care by
Defendant, including the duty to take reasonable precautions to
protect him from foreseeable criminal attacks.

The criminal attack which Plaintiff suffered was an unprovoked
assault.

Plaintiff’s designated evidence—his Exhibit 3—is irrelevant,
under the holding in Goodwin . . . , to a consideration of whether
the harm suffered by Plaintiff was foreseeable[.]

An unprovoked criminal assault is not a foreseeable criminal
attack.

Plaintiff’s response, including chasing after his assailants—even if
in an effort to recover stolen personal property—is not activity
Defendant could have foreseen. Defendant had no duty to
protect Plaintiff from the resultant injuries.

The law imposed and imposes no duty on the part of Defendant
to protect Plaintiff, as an invitee, against the harm which he

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 suffered. Defendant is entitled to judgment as a matter of law
on . . . this issue.

Id. at 16-17. Powell now appeals.

Discussion and Decision
I. Extension of Dispositive Motion Deadline
[7] Powell first argues that the trial court erroneously extended the dispositive

motion deadline, permitting Bleachers to seek summary judgment over a year

past the initial deadline. Trial Rule 56(I) provides that “[f]or cause found, the

Court may alter any time limit set forth in this rule [regarding summary

judgment] upon motion made within the applicable time limit.” The trial court

is vested with broad discretion to alter the time limits for summary judgment

proceedings, and we will reverse only if the trial court’s decision to alter the

timeline is against the logic and effect of the facts and circumstances before the

court or if the court has misinterpreted the law. Logan v. Royer, 848 N.E.2d

1157, 1160 (Ind. Ct. App. 2006).

[8] Our Supreme Court decided Goodwin on October 26, 2016, and that case

unquestionably has a substantial and substantive effect on this one. At that

time, there was no looming trial date, and we fail to see how the trial court’s

decision to reopen and extend the dispositive motion deadline prejudiced

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 Powell.2 Under these circumstances, we find no error in the trial court’s order

granting Bleachers’s motion to reopen the dispositive motion deadline.

II. Summary Judgment
[9] Powell also argues that the trial court erroneously granted summary judgment

in favor of Bleachers. Our standard of review on summary judgment is well

established:

The party moving for summary judgment has the burden of
making a prima facie showing that there is no genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
Once these two requirements are met by the moving party, the
burden then shifts to the non-moving party to show the existence
of a genuine issue by setting forth specifically designated
facts. Id. Any doubt as to any facts or inferences to be drawn
therefrom must be resolved in favor of the non-moving
party. Id. Summary judgment should be granted only if the
evidence sanctioned by Indiana Trial Rule 56(C) shows there is
no genuine issue of material fact and that the moving party
deserves judgment as a matter of law. Freidline v. Shelby Ins.
Co., 774 N.E.2d 37, 39 (Ind. 2002).

Goodwin, 62 N.E.3d at 386.

2
Powell makes several accusations in his brief regarding alleged ex parte communications between
Bleachers’s counsel and the trial court, as well as an alleged settlement agreement that Powell reached with
Bleachers’s insurer before Bleachers sought to extend the dispositive motion deadline. There is no evidence
whatsoever supporting these claims and we decline to consider them.

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[10] To prevail on a claim of negligence, a plaintiff must show (1) a duty owed by

the defendant to the plaintiff; (2) a breach of that duty; and (3) compensable

injury proximately caused by that breach. Id. Absent a duty, there can be no

negligence or liability based upon the breach, and whether a duty exists is a

question of law for the court to decide. Id. at 386-87.

[11] In Goodwin, our Supreme Court carefully analyzed and synthesized years of

“less than perfectly lucid” caselaw regarding duty in the context of a negligence

claim. Id. at 387. As a general matter, it continues to be the case that

“‘[l]andowners have a duty to take reasonable precautions to protect their

invitees from foreseeable criminal attacks.’” Id. at 388 (quoting Kroger Co. v.

Plonski, 930 N.E.2d 1, 7 (Ind. 2010)). Duty, however, “‘only extends to harm

from the conduct that . . . is reasonably foreseeable to the proprietor.’” Id.

[12] The Goodwin Court clarified that foreseeability in the context of duty (as

opposed to the context of proximate cause) must be analyzed as a matter of

law: “because foreseeability is—in this particular negligence action—a

component of duty, and because whether a duty exists is a question of law for

the court to decide, the court must of necessity determine whether the criminal

act at issue here was foreseeable.” Id. at 389.

[13] Our Supreme Court adopted this Court’s analysis in Goldsberry v. Grubbs, which

provides as follows:

“the foreseeability component of proximate cause requires an
evaluation of the facts of the actual occurrence, while the
foreseeability component of duty requires a more general analysis
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 of the broad type of plaintiff and harm involved, without regard
to the facts of the actual occurrence.”

Id. at 389 (quoting Goldsberry, 672 N.E.2d 475, 479 (Ind. Ct. App. 1996)).

Indeed, whether the particular plaintiff’s injury was reasonably foreseeable in

light of the particular defendant’s conduct is explicitly not relevant to a

determination of duty. Goodwin, 62 N.E.3d at 391.

[14] In Goodwin, the plaintiff was socializing at a bar when another patron became

angry, produced a handgun, and shot the plaintiff. The plaintiff sued the bar

and our Supreme Court considered whether, as a matter of law, the bar owed a

duty to the plaintiff. First, the Court found that most of the evidence in the

record, which related to the specific incident, the specific plaintiff, and the

specific defendant, was not relevant to a determination of duty. Id. at 392-93.

Second, it applied the general analysis regarding foreseeability in the context of

duty:

The broad type of plaintiff here is a patron of a bar and the harm
is the probability or likelihood of a criminal attack, namely: a
shooting inside a bar. But even engaging in a “lesser inquiry” we
conclude that although bars can often set the stage for rowdy
behavior, we do not believe that bar owners routinely
contemplate that one bar patron might suddenly shoot another.
To be sure, we doubt there exists a neighborhood anywhere in
this State which is entirely crime-free. Thus, in the broadest
sense, all crimes anywhere are “foreseeable.” But to impose a
blanket duty on proprietors to afford protection to their patrons
would make proprietors insurers of their patrons’ safety which is
contrary to the public policy of this state. Further such a blanket
duty would abandon the notion of liability based on negligence

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 and enter the realm of strict liability in tort which “assumes no
negligence of the actor, but chooses to impose liability
anyway.” Cook v. Whitsell-Sherman, 796 N.E.2d 271, 276 (Ind.
2003). We decline to impose such liability here. In sum we hold
that a shooting inside a neighborhood bar is not foreseeable as a
matter of law.

Id. at 393-94 (internal footnote and some internal citations omitted).

[15] Here, as in Goodwin, we must consider the foreseeability of the criminal act as

we contemplate whether Bleachers owed Powell a duty as a matter of law. Per

our Supreme Court’s instructions, we will not consider the facts of the actual

occurrence as we engage in this analysis; instead, we must ask the broader

questions of what type of plaintiff is Powell and what type of harm occurred.

[16] As in Goodwin, the broad type of plaintiff here is a patron of a bar. And here,

Powell sustained his most serious injuries after he pursued his assailants and

grabbed onto the vehicle as it was being driven away. Therefore, the broad type

of harm is the probability or likelihood of a criminal attack being extended

when the victim confronts his assailants, placing himself at risk of further

injury.

[17] We echo the Goodwin Court’s conclusion that, while “bars can often set the

stage for rowdy behavior, we do not believe that bar owners routinely

contemplate” that a criminal attack in their parking lot would be extended

when the victim pursues the assailants. Id. at 393-94; see also Jones v. Wilson, 81

N.E.3d 688, 695 (Ind. Ct. App. 2017) (holding that business patron who was

attacked in the business’s parking lot at night by a third party could not
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 establish foreseeability because the harm inflicted on her was not normally to be

expected). In other words, the likelihood of this type of harm is not significant

enough to induce a reasonable person to take precautions to avoid it. Goodwin,

62 N.E.3d at 392. Under these circumstances, we find that the trial court did

not err by concluding as a matter of law that Bleachers does not owe a duty to

Powell to prevent this type of harm or by granting summary judgment in favor

of Bleachers.

[18] The judgment of the trial court is affirmed.

Riley, J., and Brown, J., concur.

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