FILED
May 29 2018, 9:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
James F. Olds STEAK ‘N SHAKE
William E. Emerick Thomas C. Hays
Mark R. Molter Lisa M. Dillman
Stuart & Branigin LLP Barath S. Raman
Lafayette, Indiana Lewis Wagner LLP
Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE
INDIANA TRIAL LAWYERS ASS’N ATTORNEY FOR AMICUS CURIAE
Gabriel A. Hawkins DEFENSE TRIAL COUNSEL OF INDIANA
Cohen & Malad, LLP Lucy R. Dollens
Indianapolis, Indiana Jacob V. Bradley
Quarles & Brady, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeffery Certa, May 29, 2018
Appellant-Plaintiff, Court of Appeals Case No.
79A05-1708-CT-1873
v.
Appeal from the Tippecanoe Superior
Steak ‘n Shake Operations Inc., Court.
The Honorable Randy J. Williams,
Mikal Gillham, and Matthew Judge.
Hulett, Trial Court Cause No.
Appellees-Defendants. 79D01-1404-CT-50
Barteau, Senior Judge
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Statement of the Case
[1] Appellant Jeffery Certa appeals the trial court’s entry of summary judgment in
1
favor of Appellee Steak ‘n Shake. We reverse and remand.
Issue
[2] Certa presents one issue for our review: whether the trial court erred in
granting Steak ‘n Shake’s motion for summary judgment.
Facts and Procedural History
[3] The facts most favorable to Certa, the nonmovant, follow. In the early morning
hours of May 4, 2013, Certa and his friends, Rick and Arlene Luse, arrived at
the Steak ‘n Shake in Lafayette, Indiana. Certa and the Luses had been
drinking. As they walked from the parking lot to the entrance of the restaurant,
they observed a man and a woman arguing and saw the man push the woman
against the wall. Certa stepped between the two people and told the man not to
put his hands on the woman. Mikal Gillham was with the man and woman
and witnessed Certa’s actions. She and Certa exchanged words when she
suggested that Certa stay out of their affairs. Certa then entered the restaurant
with the Luses and informed a Steak ‘n Shake employee that there was a
physical altercation occurring outside the restaurant. The employee indicated
1
Although Defendants Mikal Gillham and Matthew Hulett did not participate in the proceedings below and
have not participated in this appeal, they are parties on appeal. See Ind. Appellate Rule 17(A) (stating that a
party of record in the trial court shall be a party on appeal).
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that he would take care of the situation, and Certa and the Luses were seated at
a table.
[4] Gillham entered the restaurant to join her friends, Matthew Hulett and Lynn
Huhn, who had already been seated. Like Certa and the Luses, Gillham and
her friends had been drinking that evening. Gillham’s aunt, Ladonna Musik, is
a Steak ‘n Shake employee and was the server on duty that night. Musik was
aware that the two groups had been drinking. When Gillham entered the
restaurant, she told Musik about her exchange with Certa, and she advised her
aunt not to allow Certa and his friends into the restaurant because she “could
tell that they were intoxicated” and she “just had a feeling that they were going
to start an argument[ ] or a fight.” Gillham Depo., Appellant’s Appendix Vol.
2, p. 152. Musik stated that everyone should calm down, eat their food, and
mind their own business. Musik advised her manager to watch the two tables
because there might be a conflict.
[5] Gillham and her friends were seated at a table on the other side of the
restaurant from Certa and the Luses. Although there was no conversation,
yelling, or fighting between the two tables, the people at Gillham’s table were
talking loudly, pointing, and gesturing at Certa’s table. From Certa’s table,
Arlene was glaring at Gillham and her friends.
[6] After about thirty to forty-five minutes, Gillham’s group finished eating, paid
their bill, and exited the restaurant. Subsequently, the Luses paid their bill and
exited. Certa was the last to pay and leave. As he was paying his bill, he told
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Musik, “If I go out there and that girl runs her mouth[,] the sh**t’s going to hit
the fan.” Musik Depo., Appellant’s App. Vol. 2, p. 134. As Certa exited the
restaurant, he saw that a woman in a car was reaching out of the open driver’s
window and punching Arlene. The woman punching Arlene was later
identified as Gillham. Certa ran back into the restaurant and told the
employees to call the police. At some point, Certa noticed that Rick was also
involved in an altercation outside the restaurant. Upon exiting the restaurant
the second time, Certa went around to the back of the vehicle in which Gillham
was sitting and attempted to get the license plate number. While Certa was
standing behind the car, Hulett, who was seated in the front passenger seat of
the car, reached over and put the car in reverse. The car backed over Certa,
causing him injury.
[7] Based on these events, Certa sued Steak ‘n Shake, Gillham, Hulett, and Allstate
2
Property and Casualty Insurance Company for his injuries. In his complaint,
Certa alleged that Steak ‘n Shake was negligent when it breached its duty to
him by “[f]ailing to reasonably control its customers;” “failing to properly train
its staff in customer control and handling intoxicated persons;” “failing to
provide proper security;” and “failing to call the police in a timely manner.”
Appellant’s App. Vol. 2, p. 221. Steak ‘n Shake filed a motion for summary
judgment, which the trial court denied after an evidentiary hearing. Steak ‘n
2
In July 2017, the trial court ordered Allstate dismissed from this case with prejudice by stipulation of the
parties.
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Shake subsequently filed a motion to reconsider based upon two recent Indiana
Supreme Court decisions. The parties acknowledged the trial court should
consider Steak ‘n Shake’s motion to reconsider as a renewed motion for
summary judgment, and, after an evidentiary hearing, the trial court granted
summary judgment for Steak ‘n Shake. Certa now appeals.
Discussion and Decision
[8] Certa contends the trial court erred by granting summary judgment for Steak ‘n
Shake. The purpose of summary judgment is to terminate litigation about
which there can be no factual dispute and which can be determined as a matter
of law. Sheehan Const. Co., Inc. v. Cont’l Cas. Co., 938 N.E.2d 685, 689 (Ind.
2010). On appeal from a summary judgment, we apply the same standard of
review as the trial court: summary judgment is appropriate only where the
designated evidentiary matter shows there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law. Young
v. Hood’s Gardens, Inc., 24 N.E.3d 421, 423-24 (Ind. 2015); see also Ind. Trial
Rule 56(C). All facts and reasonable inferences drawn from those facts are
construed in favor of the nonmovant. Sheehan Const. Co., Inc., 938 N.E.2d at
688. Further, the trial court’s grant of summary judgment is clothed with a
presumption of validity, and the party who lost in the trial court has the burden
of demonstrating that the grant of summary judgment was erroneous. Auto-
Owners Ins. Co. v. Benko, 964 N.E.2d 886, 890 (Ind. Ct. App. 2012), trans. denied.
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[9] Certa’s negligence claim against Steak ‘n Shake is grounded in premises
liability. Indiana law is well established that a person entering upon the land of
another comes upon the land as an invitee, a licensee, or a trespasser. Pickering
v. Caesars Riverboat Casino, LLC, 988 N.E.2d 385, 389 (Ind. Ct. App. 2013). The
status of the person entering the land of another determines the duty the
landowner owes to him. Mohr v. Virginia B. Smith Revocable Tr., 2 N.E.3d 50, 54
(Ind. Ct. App. 2014), trans. denied. Here, the parties agree that Certa was an
invitee of Steak ‘n Shake, meaning that Steak ‘n Shake owed Certa a duty to
exercise reasonable care for his protection. See Christmas v. Kindred Nursing Ctrs.
Ltd. P’ship, 952 N.E.2d 872, 880 (Ind. Ct. App. 2011) (stating that landowner
owes to invitee highest duty of care, which is duty to exercise reasonable care
for invitee’s protection while he is on premises).
[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) injury to the
plaintiff resulting from the defendant’s breach. Miller v. Rosehill Hotels, LLC, 45
N.E.3d 15, 19 (Ind. Ct. App. 2015). Absent a duty, there can be no negligence
or liability based upon a breach. Powell v. Stuber, 89 N.E.3d 430, 433 (Ind. Ct.
App. 2017). Whether a duty exists is a question of law for the courts to decide.
Podemski v. Praxair, Inc., 87 N.E.3d 540, 547 (Ind. Ct. App. 2017), trans. denied.
[11] Two recent decisions by our supreme court, Goodwin v. Yeakle’s Sports Bar and
Grill, Inc., 62 N.E.3d 384 (Ind. 2016) and Rogers v. Martin, 63 N.E.3d 316 (Ind.
2016), drive our decision in this case. In Goodwin, a patron at a bar became
angry when he overheard comments he believed to be about his wife. He
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produced a handgun and shot three people. The three individuals who were
shot sued the bar for negligence based on premises liability. The trial court
granted summary judgment for the bar, and the three patrons appealed. This
Court reversed the trial court’s decision.
[12] On transfer, our supreme court affirmed the trial court’s judgment that the bar
did not owe the patrons a duty to protect them. In doing so, the court
acknowledged foreseeability as a component of the duty element of negligence
and concluded that the assessment of foreseeability in this context is a
determination to be made by the court utilizing an analysis of the “‘broad type
of plaintiff and harm involved, without regard to the facts of the actual
occurrence.’” Id. at 390 (quoting Goldsberry v. Grubbs, 672 N.E.2d 475, 479
(Ind. Ct. App. 1996), trans. denied and adopting analysis set forth therein
because it provides more accurate framework for assessing foreseeability in duty
context; expressly disapproving three-part balancing test in Webb v. Jarvis, 575
N.E.2d 992 (Ind. 1991); and stating totality of circumstances test endorsed in
Delta Tau Delta v. Johnson, 712 N.E.2d 968 (Ind. 1999) ill-suited to determine
foreseeability in duty context). The court also declared that “for purposes of
determining whether an act is foreseeable in the context of duty we assess
whether there is some probability or likelihood of harm that is serious enough
to induce a reasonable person to take precautions to avoid it.” Id. at 392.
[13] In applying this foreseeability analysis to the facts before it in Goodwin, the
court stated that the broad type of plaintiff was a patron of a bar and the broad
type of harm was the likelihood of a criminal attack, namely a shooting inside a
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bar. Id. at 393. The court reasoned that although bars can be host to rowdy
behavior, bar owners would not routinely contemplate that one patron might
suddenly shoot another. Id. at 393-94. Therefore, the court declined to impose
a duty and held that a shooting inside a neighborhood bar is not foreseeable as a
matter of law. Id. at 394.
[14] On the same day it decided Goodwin, our supreme court also decided Rogers. In
that case, a homeowner and her boyfriend co-hosted a party. At the end of the
night, the boyfriend engaged in a fistfight with two guests. Afterward, the
homeowner found one of the guests lying motionless on her basement floor.
He died a short time later. The estate of the deceased guest and the other guest
sued the homeowner for negligence. The homeowner filed a motion for
summary judgment, which the trial court granted. The estate appealed, and
this Court reversed. Transfer was sought and granted.
[15] Our supreme court summed up the issue in Rogers as, “Where a premises
liability claim is based on activities on the land [rather than a condition of the
land], foreseeability is the critical inquiry in determining whether the
landowner’s duty of reasonable care extends to the particular circumstances at
issue.” Id. at 323. Expounding on its determination in Goodwin, the court
further stated:
When foreseeability is part of the duty analysis, as in landowner-
invitee cases, it is evaluated in a different manner than
foreseeability in the context of proximate cause. Specifically, in
the duty arena, foreseeability is a general threshold determination
that involves an evaluation of (1) the broad type of plaintiff and
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(2) the broad type of harm. In other words, this foreseeability
analysis 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.
Id. at 325 (citing Goodwin, 62 N.E.3d at 388-89). The court then applied this
analysis to the facts to determine whether a homeowner has a duty to take
precautions to prevent a co-host from fighting with and injuring (i.e., broad type
of harm) a house-party guest (i.e., broad type of plaintiff). In answering this
question in the negative, the court explained, “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.” Id. at 326.
[16] The court was also presented with and determined a second issue concerning
the homeowner’s duty in Rogers: whether the homeowner had a duty to protect
the guest when she found him lying unconscious on her basement floor. This
question the court answered in the affirmative. The court reasoned that
“[h]omeowners should reasonably expect that a house-party guest who is
injured on the premises could suffer from an exacerbation of those injuries” and
for that reason, the homeowner owed the guest a duty to protect him from the
exacerbation of his injury that occurred in her home. Id. at 327.
[17] In this case, both parties acknowledge the applicability of Rogers and Goodwin to
the situation, but they disagree about the ensuing result. Certa asserts that
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Steak ‘n Shake, as a 24-hour restaurant, had a reasonable duty of care to protect
him from injury inflicted by intoxicated patrons when Steak ‘n Shake knew
Certa and the patrons had engaged in a verbal altercation and was aware of the
potential for escalation of the conflict.
[18] Steak ‘n Shake, on the other hand, argues the trial court properly determined
that Steak ‘n Shake did not owe a duty to Certa because it was not foreseeable
that Certa, a restaurant patron, would be injured by an intoxicated patron in the
parking lot of a restaurant that does not serve alcohol. Steak ‘n Shake
maintains that in this case the broad type of plaintiff is a patron of a restaurant
and the broad type of harm is a criminal attack from a third party.
[19] Application of the broad type of plaintiff and harm analysis is not as narrow as
Steak ‘n Shake suggests. In this analysis, foreseeability is the “critical inquiry,”
and this inquiry acknowledges that the landowner-invitee duty to protect is not
limitless; rather, some harms are so unforeseeable that a landowner has no duty
to protect an invitee against them. Rogers, 63 N.E.3d at 320, 324. Yet, even
given the “lesser inquiry” that is the broad plaintiff/harm analysis, the court
considered what the landowner knew or had reason to know as it concerned the
injured party in both Goodwin and Rogers when determining the foreseeability of
these events. Goodwin, 62 N.E.3d at 390, 393 (quoting Goldsberry, 672 N.E.2d
at 479). This approach is consistent with the RESTATEMENT (SECOND) OF
TORTS § 344 cmt. f, which provides, “[s]ince the possessor [of land] is not an
insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care
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until he knows or has reason to know that the acts of the third person are
occurring, or are about to occur.”
[20] For example, in Goodwin, the court acknowledged that bar owners do not
“routinely contemplate that one bar patron might suddenly shoot another.” Id.
at 394 (emphasis added). Use of the word “suddenly” indicates that this was an
unexpected occurrence relative to the landowner/bar owner. Likewise, in
Rogers, the court called the fight an “unpredictable situation” and stated that
hosts of parties do not “routinely physically fight guests whom they have
invited.” Id. at 326. Again, the court’s language reflects the unanticipated
nature of the fight vis-à-vis the landowner/homeowner. Finally, with regard to
the second issue of duty in Rogers, the court decided that the
landowner/homeowner’s knowledge that the guest had been injured gave rise
to a duty to protect the guest from exacerbation of the injury occurring in her
home. Thus, what the landowner knew or had reason to know is a pivotal
consideration in determining foreseeability which Steak ‘n Shake disregards in
its analysis.
[21] Accordingly, as did our supreme court in Goodwin and Rogers, we apply the
broad type of plaintiff and the broad type of harm analysis and determine the
foreseeability of the events with consideration of what Steak ‘n Shake knew or
had reason to know. The broad type of plaintiff is a restaurant patron, and the
broad type of harm is injury caused by a third party. In determining the
foreseeability, we are mindful that Steak ‘n Shake did not have to know the
precise harm that its customer would suffer, only that there was some
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probability or likelihood of harm that was serious enough to induce a
reasonable person to take precautions to avoid it. See Goodwin, 62 N.E.3d at
392. Steak ‘n Shake knew that a heated encounter that began outside the
restaurant between two groups of intoxicated people spilled into the restaurant.
The Steak ‘n Shake server was told by her niece that she feared a fight would
ensue, and the groups exchanged dirty looks and finger pointing while inside
the restaurant. In addition, the Steak ‘n Shake server specifically informed her
manager that the two groups might be trouble. Further, Certa indicated to the
Steak ‘n Shake server that he would retaliate if Gillham engaged him in the
parking lot. Given these circumstances, we conclude that Steak ‘n Shake’s
knowledge of the events on its premises in this case gave rise to a duty to take
reasonable steps to provide for Certa’s safety as a patron of its establishment.
[22] We caution that our determination is only of the existence of a duty in this
situation. The issues of breach of that duty and proximate cause must still be
determined by the trier of fact.
Conclusion
[23] Thus, having determined that Steak ‘n Shake owed a duty to Certa, we
necessarily conclude that the trial court erred in granting summary judgment in
favor of Steak ‘n Shake.
[24] Reversed and remanded.
Riley, J., and Brown, J., concur.
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