Amber Cosgrave v. French Lick Resort & Casino d/b/a Blue Sky Casino, LLC

FILED
May 09 2018, 7:40 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew D. Barrett Jeffrey L. Hansford
Logansport, Indiana Curtis P. Moutardier
Boehl Stopher & Graves, LLP
New Albany, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Amber Cosgray, May 9, 2018
Appellant-Plaintiff, Court of Appeals Case No.
59A01-1710-CT-2512
v. Appeal from the Orange Circuit
Court
French Lick Resort & Casino The Honorable Steven L. Owen,
d/b/a Blue Sky Casino, LLC, Judge
Appellee-Defendant. Trial Court Cause No.
59C01-1512-CT-330

Riley, Judge.

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 STATEMENT OF THE CASE
[1] Appellant-Plaintiff, Amber Cosgray (Cosgray), appeals the trial court’s grant of

Appellee-Defendant’s, French Lick Resort & Casino d/b/a Blue Sky Casino,

LLC (French Lick Resort), motion for summary judgment, concluding that

French Lick Resort did not owe a duty to Cosgray, an invitee, to protect her

from a criminal attack by an unknown assailant.

[2] We affirm.

ISSUE
[3] Cosgray presents us with one issue on appeal, which we restate as: Whether

the trial court properly concluded that French Lick Resort did not owe Cosgray

a duty as a matter of law to protect her from a criminal attack by an unknown

assailant while on French Lick Resort’s premises.

FACTS AND PROCEDURAL HISTORY
[4] On December 7, 2013, Cosgray, along with her employer, Greg Pomasl

(Pomasl), attended a work-related Christmas party at the hotel/casino owned

and operated by French Lick Resort, at French Lick, Indiana. Cosgray and

Pomasl arrived at the hotel around 2:00 p.m. and checked into their rooms.

Cosgray was in Room 1504 and Pomasl’s room was nearby. At the time of

check-in at the hotel, all guests were given a key card, which is placed in a key

card holder and which includes the following safety instructions:

1. Don’t answer the door to your guest room without verifying
who it is. If the person claims to be an employee, call the
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 front desk and ask if someone from their staff is supposed to
have access to your room and for what purpose.

2. Keep your room key with you at all times and don’t
needlessly display it in public. Should you misplace it, please
notify the front desk immediately.

3. Close the door securely whenever you are in your room and
use all of the locking devices provided.

4. Check to see that any sliding glass doors or windows and any
connecting room doors are locked.

5. Don’t invite strangers to your room.

6. Be aware of potential phone scams and prank calls to your
guest room. Hotel employees will never request credit card or
personal information over the phone, nor will they advise a
guest to damage hotel property.

7. Place all valuables in the guest room safe.

8. When returning to your hotel late in the evening, be aware of
your surroundings, stay in well-lighted areas and use the main
entrance.

9. Take a few moments and locate the nearest exit that may be
used in the event of an emergency.

10. If you see any suspicious activity, notify the hotel operator or
a staff member.

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 (Appellant’s Amended App. Vol. II, p. 96). All guest room doors at the French

Lick Resort are equipped with three separate locking devices. The first security

lock automatically locks the door upon closing. The second device is a

deadbolt located near the doorknob which a guest has to manually turn to

provide additional security. The third security device is a rasp safety lock which

a guest simply flips over the closed door.

[5] After checking into her room, Cosgray joined her co-employees in the bar area

of the casino for drinks and dinner. The dinner ended between 8:00 and 9:00

p.m., after which everyone went to their room to change before going to the

casino. While at the casino, Cosgray played the slot machines for a while and

then joined other colleagues in the bar area for dancing. After consuming two

or three beers and two additional mixed drinks, Cosgray “felt the effects of the

alcohol.” (Appellant’s Amended App. Vol. II, p. 74). At approximately 2:00

a.m., Cosgray walked back to her hotel room. Because Pomasl intended to join

her in her room after he cashed-in his chips at the casino, Cosgray propped her

room door open by flipping the rasp lock through the door jamb, preventing the

door from completely closing. After changing into sweatpants, Cosgray fell

asleep on the bed while waiting for Pomasl.

[6] About two hours later, Cosgray, laying on her stomach, awoke with her

sweatpants and underwear pulled down and an unknown man on top of her,

vaginally penetrating her. The unknown assailant never said anything and

Cosgray did not make any noise. After approximately six minutes, the male left

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 the room, and Cosgray locked the door. Law enforcement later identified

Cosgray’s assailant as Javier Urbano Uribe (Uribe). 1

[7] The criminal investigation later determined that French Lick Resort’s

employee, Summer Andrews (Andrews), had invited Uribe onto the hotel and

casino’s property. Andrews was employed in customer service, serving food

and beverages to French Lick Resort’s guests at the casino. Due to inclement

weather conditions, French Lick Resort had provided Andrews with a hotel

room. At the conclusion of her shift on December 8, 2013, Andrews clocked

out at 1:13 a.m. and left the premises. She visited a local bar where she

befriended Uribe and invited him back to her room at the French Lick Resort.

After accompanying Uribe into the hotel, and prior to arriving at her room,

Andrews rebuked Uribe’s advances and left him alone near Cosgray’s room.

[8] On December 4, 2015, Cosgray filed a Complaint for damages against French

Lick Resort, claiming negligence, vicarious liability, and negligent infliction of

emotional distress. On May 9, 2017, French Lick Resort filed a motion for

summary judgment and designation of evidence, to which Cosgray responded

on July 10, 2017. After conducting a hearing, the trial court granted summary

judgment to French Lick Resort, concluding in pertinent part:

This [c]ourt does now find that, in general, resorts and hotels do
not routinely contemplate that an invitee might rape another

1
On December 10, 2013, the State filed an Information, charging Uribe with rape and burglary. Uribe pled
guilty to the charge of rape on April 3, 2017.

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 invitee, nor do they contemplate that an invitee will voluntarily
leave their doors open and unlocked all night. In addition, it
would be unreasonable to hold a hotel or resort responsible for a
rape occurring on its premises, especially given the circumstances
of the case before the [c]ourt. [French Lick Resort] does not have
a blanket duty to [Cosgray] to protect her from any and all
criminal attacks. Thus[,] the [c]ourt finds that in this case, as a
matter of law, it is unforeseeable by [French Lick Resort], that
[Cosgray] would be sexually assaulted in her room that she
intentionally left unlocked and that it would be unreasonable to
require that French Lick Resort should have taken any further
precautions to avoid such an attack.

(Appellant’s Amended App. Vol. II, p. 15).

[9] Cosgray now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION
I. Standard of Review

[10] In reviewing a trial court’s ruling on summary judgment, this court stands in the

shoes of the trial court, applying the same standards in deciding whether to

affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

must determine whether there is a genuine issue of material fact and whether

the trial court has correctly applied the law. Id. at 607-08. In doing so, we

consider all of the designated evidence in the light most favorable to the non-

moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if

it helps to prove or disprove an essential element of the plaintiff’s cause of

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 action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an

opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.

Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant

of summary judgment has the burden of persuading this court that the trial

court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.

When the defendant is the moving party, the defendant must show that the

undisputed facts negate at least one element of the plaintiff’s cause of action or

that the defendant has a factually unchallenged affirmative defense that bars the

plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be

reversed if the record discloses an incorrect application of the law to the facts.

Id.

[11] We observe that, in the present case, the trial court entered findings of fact and

conclusions of law in support of its judgment. Special findings are not required

in summary judgment proceedings and are not binding on appeal.

AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

App. 2004). However, such findings offer this court valuable insight into the

trial court’s rationale for its review and facilitate appellate review. Id.

II. Analysis

[12] To recover in negligence, Cosgray must establish: (1) a duty on the part of

French Lick Resort to conform its conduct to a standard of care arising from its

relationship with Cosgray; (2) a failure on the part of French Lick Resort to

conform its conduct to the requisite standard of care; and (3) an injury to

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 Cosgray proximately caused by the breach. Jones v. Wilson, 81 N.E.3d 688, 692

(Ind. Ct. App. 2017).

[13] In this case, the threshold inquiry is whether French Lick Resort owed a duty to

its invitee, Cosgray, to protect her from a criminal attack by an unknown

assailant while she was in her room on French Lick Resort’s premises with her

room door intentionally left unlocked. Necessary to our analysis is

consideration of two Indiana Supreme Court cases, which “redrew the premises

liability landscape.” Hoosier Mountain Bike Ass’n v. Kaler, 73 N.E.3d 712, 716

n.4 (Ind. Ct. App. 2017). The decisions in Rogers v. Martin, 63 N.E.3d 316 (Ind.

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

carefully synthesized years of “less than perfectly lucid” caselaw on premises

liability law in Indiana. Goodwin, 62 N.E.3d at 387. Reviewing the applicable

precedents, Goodwin and Rogers initially observed that a landowner has a

general duty to exercise reasonable care for the invitee’s protection while the

invitee is on the premises. Rogers, 63 N.E.3d at 320. However, our supreme

court continued that “although landlords owe invitees a well-established ‘duty

to protect,’ courts must look at one critical element before extending that duty

to cases where an invitee’s injury occurs not due to a dangerous condition of the

land but due to some harmful activity on the premises. That element is

foreseeability.” Id. at 324. That is, while landowners have a duty to take

reasonable precaution to protect their invitees from criminal attacks by third

parties, there is a foreseeability component in that analysis, requiring the trial

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 court to decide, in the context of duty, whether the criminal act was foreseeable.

See Jones, 81 N.E.3d at 693.

[14] In its decisions, our supreme court distinguished the foreseeability component

in the context of duty from the foreseeability component in the context of

proximate cause, stating: “‘[T]he foreseeability component of proximate cause

requires an evaluation of the facts of the actual occurrence, while foreseeability

as a component of duty involves a lesser inquiry which requires a more general

analysis of the broad type of plaintiff and harm involved, without regard to the

facts of the actual occurrence.’” 2 Goodwin, 62 N.E.3d at 391 (quoting Goldsberry

v. Grubbs, 672 N.E.2d 475, 479 (Ind. Ct. App. 1996), trans. denied); see also

Rogers, 63 N.E.3d at 325 (foreseeability in duty context is a general threshold

determination that “should focus on the general class of persons of which the

plaintiff was a member and whether the harm suffered was of a kind normally

to be expected—without addressing the specific facts of the occurrence”). The

Goodwin court further clarified the trial court’s task when determining whether a

criminal act was foreseeable:

But because almost any outcome is possible and can be foreseen,
the mere fact that a particular outcome is “sufficiently likely” is
not enough to give rise to a duty. Instead, for purposes of
determining whether an act is foreseeable in the context of duty
we assess “whether there is some probability or likelihood of

2
In reaching this decision, the Goodwin court specifically rejected the totality of the circumstances test when
analyzing the foreseeability analysis in the context of duty. See Goodwin, 62 N.E.3d at 389 (“[W]e now
recognize that although the ‘totality of the circumstances’ test is useful in determining foreseeability in the
context of proximate causation, it is inappropriate when analyzing foreseeability in the context of duty.”)

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 harm that is serious enough to induce a reasonable person to take
precautions to avoid it.

Goodwin, 62 N.E.3d at 392.

[15] Distinguishing Goodwin, Cosgray claims that “[t]he broad type of patron at a

small neighborhood bar typically stays for a short period of time to drink

beverages and socialize. On the other hand, the broad type of patron at issue in

the present case stays for an exceedingly longer period of time to play casino

games, drink, socialize, and then sleep overnight in guest rooms.” (Appellant’s

Br. p. 16). In Goodwin, the plaintiff was socializing at a bar when another

patron became angry, produced a handgun, and shot the plaintiff. Goodwin, 62

N.E.3d at 392. In its analysis of the bar’s duty, our supreme court noted:

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.

Id. at 393. See also Martin, 63 N.E.3d at 326 (“Although house parties can often

set the stage for raucous behavior, we do not believe that hosts of parties

routinely physically fight guests whom they have invited. Ultimately, it is not

reasonably foreseeable for a homeowner to expect this general harm to befall a

house-party guest.”); Jones, 81 N.E.3d at 694-95 (The random criminal attack in

the parking lot on a paying spectator at a wrestling match was not foreseeable

and therefore no duty was owed); Powell v. Stuber, 89 N.E.3d 430, 434 (Ind. Ct.

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 App. 2017) (No duty was owed to the patron of a bar who “pursued his

assailants and grabbed onto the vehicle as it was being driven away.”), reh’g

denied.

[16] Here, Cosgray’s injuries resulted from the conduct of a third person. Under the

foreseeability test outlined in Goodwin and Rogers—examining the broad type of

plaintiff and the broad type of harm, without consideration of the actual facts—

we find that the sexual criminal attack on Cosgray by another invitee in a room

left intentionally unlocked was not normally to be expected, and thus not

foreseeable, and therefore French Lick Resort did not owe a duty to Cosgray.

[17] Cosgray encourages this court to take into consideration the “ongoing history of

assaults and batteries involving injury and a prior reported rape” and the

specific security measures to impose a duty on French Lick Resort.

(Appellant’s Br. p. 16). However, Cosgray’s inclination to incorporate the

totality of the circumstances into our consideration of the duty element is no

longer applicable since our supreme court decision in Goodwin and Martin. See

Goodwin, 62 N.E.3d at 392 (The totality of the circumstances test “is ill-suited to

determine foreseeability in the context of duty.”). Accordingly, we affirm the

trial court’s summary judgment for French Lick Resort.

CONCLUSION
[18] Based on the foregoing, we conclude that French Lick Resort did not owe

Cosgray a duty as a matter of law to protect her from a criminal attack by an

assailant while on French Lick Resort’s premises.

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[19] Affirmed.

[20] May, J. and Mathias, J. concur

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