FILED
Jan 18 2019, 7:58 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
J. Thomas Vetne Benjamen W. Murphy
Amanda N. Zaluckyj Griffith, Indiana
Jones Obenchain, LLP
South Bend, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Buddy & Pals III, Inc., Buddy & January 18, 2019
Pals II, Inc., Buddy & Pals Inc., Court of Appeals Case No.
Timothy Heidbreder, and 18A-CT-1811
William Frank Bailey, Jr., Appeal from the Lake Superior
Appellants-Defendants, Court
The Honorable Bruce D. Parent,
v. Judge
Christopher Falaschetti, The Honorable Steven King,
Senior Judge
Appellee-Plaintiff
Trial Court Cause No.
45D04-1410-CT-186
Crone, Judge.
Court of Appeals of Indiana | Opinion 18A-CT-1811 | January 18, 2019 Page 1 of 9
Case Summary
[1] Shortly after he was ejected via the back door of Buddy & Pals sports bar for
fighting, William Frank Bailey, Jr., punched Christopher Falaschetti outside the
front entrance. Falaschetti filed a personal injury action against Buddy & Pals
III, Inc., Buddy & Pals II, Inc., Buddy & Pals Inc., owner Timothy Heidbreder
(collectively “Buddy & Pals”), and Bailey.1 In this interlocutory appeal, Buddy
& Pals challenges the denial of its motion for summary judgment on
Falaschetti’s negligence claim. Finding that Buddy & Pals failed to establish as
a matter of law that it did not owe Falaschetti a duty to protect him from
Bailey’s criminal act, we affirm the denial of summary judgment.
Facts and Procedural History
[2] One night in January 2013, Falaschetti was socializing with friends at Buddy &
Pals sports bar while waiting for his girlfriend to finish a work-related
promotional event there. Bailey also was at Buddy & Pals that night with his
fiancée and consumed numerous alcoholic beverages over a three-hour period.
At one point, Bailey saw a man talking to his fiancée, so he approached and
placed his hand on the man’s shoulder. The man threw Bailey to the ground,
and Buddy & Pals’ bouncers intervened. A bouncer known as Joe put Bailey in
a chokehold. Bailey forcibly tried to pull away to get to the man who had
shoved him. He described himself as “a danger” to Joe and to everyone in his
1
Falaschetti asserted intentional tort and negligence claims against Bailey. Bailey was not a party to Buddy
& Pals’ summary judgment motion and is not participating in this interlocutory appeal.
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way. Appellants’ App. Vol. 3 at 19. Joe ejected Bailey via the back door and
threw him to the pavement. The other man was briefly detained pending
Bailey’s departure and then ejected via the front door. Bailey approached the
back door again, but another bouncer punched him in the eye and slammed the
door. Concerned that Bailey might try to re-enter through the front entrance,
Joe apprised the front-area bouncers of the situation. About a minute later,
Bailey rounded the corner toward the front of the building in search of the man
who had initially shoved him.
[3] Meanwhile, Falaschetti and his girlfriend exited the bar via the front door.
Believing Falaschetti to be the man who had shoved him, Bailey punched
Falaschetti, causing him to suffer a broken jaw, severe headaches, dizziness,
neck pain, and optic nerve inflammation. Bailey initially panicked and fled, but
when he heard someone shout that he had hit the wrong guy, he returned and
was arrested.
[4] In January 2015, Falaschetti filed a personal injury action against Buddy & Pals
and Bailey. After extensive discovery, Buddy & Pals filed a motion for
summary judgment as to Falaschetti’s negligence claim,2 asserting that it owed
Falaschetti no duty to protect him from Bailey’s criminal act. The trial court
conducted a hearing and issued an order denying Buddy & Pals’ summary
judgment motion. Buddy & Pals sought and was granted certification of the
2
In his complaint, Falaschetti asserted claims against Buddy & Pals for negligence, gratuitous assumption of
duty, and Dram Shop Act violations. Buddy & Pals’ motion for summary judgment addresses only the
negligence claim (Count IV). We therefore limit our discussion accordingly.
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order for interlocutory appeal, and we accepted jurisdiction. Additional facts
will be provided as necessary.
Discussion and Decision
[5] Buddy & Pals challenges the denial of its motion for summary judgment. We
review a court’s ruling on a summary judgment motion de novo, applying the
same standard as the trial court and drawing all reasonable inferences in favor
of the nonmoving party. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In
conducting our review, we consider only those matters that were designated at
the summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229
(Ind. Ct. App. 2011).
[6] Summary judgment is appropriate if the designated evidence 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. Hughley, 15 N.E.3d at 1003; Ind. Trial Rule
56(C). The moving party bears the onerous burden of affirmatively negating an
opponent’s claim. Hughley, 15 N.E.3d at 1003. Then, the nonmoving party
must “come forward with contrary evidence” showing a genuine issue for the
trier of fact. Williams v. Tharp, 914 N.E.2d 756, 762 (Ind. 2009).
[7] In determining whether issues of material fact exist, we neither reweigh
evidence nor judge witness credibility. Peterson v. Ponda, 893 N.E.2d 1100, 1104
(Ind. Ct. App. 2008), trans. denied (2009). Rather, we must accept as true those
facts established by the designated evidence favoring the nonmoving party. Brill
v. Regent Commc’ns, Inc., 12 N.E.3d 299, 309 (Ind. Ct. App. 2014), trans. denied.
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“Any doubt as to any facts or inferences to be drawn therefrom must be
resolved in favor of the non-moving party.” Goodwin v. Yeakle’s Sports Bar &
Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).
[8] To prevail on a negligence claim, the plaintiff must demonstrate “(1) duty owed
to plaintiff by defendant; (2) breach of duty by allowing conduct to fall below
the applicable standard of care; and (3) compensable injury proximately caused
by defendant’s breach of duty.” Id. (quoting King. v. Ne. Sec., Inc., 790 N.E.2d
474, 484 (Ind. 2003)). “The duty, when found to exist, is the duty to exercise
reasonable care under the circumstances.” Stump v. Indiana Equip. Co., 601
N.E.2d 398, 402 (Ind. Ct. App. 1992), trans. denied (1993).
[9] Buddy & Pals specifically asserts that as a matter of law, it owed no duty to
protect Falaschetti against Bailey’s criminal act. The issue of “whether a duty
exists is a question of law for the court to decide.” Goodwin, 62 N.E.3d at 389.
“[A]s a component of duty, foreseeability must be determined by the court[.]”
Id. at 390. “Proprietors 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.” Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1052 (Ind.
2003). This includes protecting invitees from reasonably foreseeable criminal
acts. Id. at 1053. In fact, “[w]here 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.” Certa v. Steak ‘n Shake
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Operations Inc., 102 N.E.3d 336, 340 (Ind. Ct. App. 2018) (quoting Rogers v.
Martin, 63 N.E.3d 316, 325 (Ind. 2016)), trans. denied.
[10] “[F]or 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.’”
Goodwin, 62 N.E.3d at 392 (quoting Satterfield v. Breeding Insulation Co., 266
S.W.3d 347, 367 (Tenn. 2008)). This involves a “more general analysis of the
broad type of plaintiff and harm involved, without regard to the facts of the
actual occurrence.” Id. at 393 (quoting Goldsberry v. Grubbs, 672 N.E.2d 475,
479 (Ind. Ct. App. 1996), trans. denied (1999)).
[11] Buddy & Pals relies on Goodwin as support for finding no duty to protect the
plaintiff against the harm suffered. In Goodwin, one bar patron thought he
overheard another patron making a derogatory remark about his wife. 62
N.E.3d at 385. In his anger, he pulled out a handgun and fired at the other
patron, striking him and his two companions. Id. Reasoning that bar owners
do not “routinely contemplate that one bar patron might suddenly shoot
another[,]” our supreme court held “that a shooting inside a neighborhood bar
is not foreseeable as a matter of law.” Id. at 393-94. Goodwin is similar to the
present case in some respects. Both cases involve the same broad type of
plaintiff, a bar patron. To the extent that Buddy & Pals suggests that
Falaschetti falls into the category of “a complete stranger” to the assailant, we
find this too narrow an application. Appellants’ Br. at 13. Both Goodwin and
the present case involve harm related to an activity on the land, a criminal
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attack. Nevertheless, in analyzing foreseeability, i.e., the probability or
likelihood of the criminal attack, we must look at the nature of the attack.
Goodwin involved one patron suddenly shooting other patrons inside the bar. In
contrast, here, a pugnacious patron ejected for fighting punched another patron
exiting the bar by the other door. We believe this is the type of “rowdy
behavior … that bar owners routinely contemplate.” Goodwin, 62 N.E.3d at
394. The fact that Buddy & Pals had several bouncers on duty inside the bar
and an off-duty officer patrolling the parking lot underscores the foreseeability
of these types of occurrences.
[12] We find this case more akin to the Steak ‘n Shake cases, where employees
observed escalating agitation among patrons, had reason to anticipate that a
physical altercation might ensue, and therefore had a duty to take reasonable
steps to protect the patrons. See Certa, 102 N.E.3d at 337-38 (reversing
summary judgment for restaurant on issue of duty where patrons informed
restaurant employees of physical altercations in parking lot, restaurant did not
take steps to avoid further violence, and tensions escalated to where one patron
struck another patron with her vehicle); see also Hamilton v. Steak ‘n Shake
Operations Inc., 92 N.E.3d 1166, 1167 (Ind. Ct. App. 2018) (reversing summary
judgment for restaurant on issue of duty where restaurant employees observed
escalating tensions between two groups of patrons, did not intervene or contact
security or police, and plaintiff was shot inside restaurant), trans. denied.
[13] “[W]hat the landowner knew or had reason to know is a pivotal consideration
in determining foreseeability[.]” Certa, 102 N.E.3d at 341. Here, Buddy &
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Pals, through its bouncers, knew that Bailey – a large,3 angry, and visibly
inebriated patron – had vigorously resisted them as they attempted to defuse the
tensions between him and the man who shoved him. The bouncers also knew
that he had approached the back entrance again after being ejected, prompting
one of the bouncers to punch him and slam the door. They also anticipated
that he would go around the building to the front entrance, which precipitated
Joe’s warning to the bouncers up front.
[14] In sum, Buddy & Pals, through its bouncers, knew that Bailey was a loose
cannon who was not taking his ejection well and was in a fighting mood. As
such, Buddy & Pals had a duty to take precautions to protect its other patrons,
including Falaschetti, from further violent attacks by Bailey on the bar’s
premises.4 This is not to say that Buddy & Pals breached its duty to protect
Falaschetti; that will be a determination for the trier of fact once presented with
evidence of the detailed circumstances of this case. Based on the foregoing, we
conclude that Buddy & Pals failed to establish as a matter of law that it owed
Falaschetti no duty to protect him from Bailey’s attack. Accordingly, we affirm
the trial court’s denial of Buddy & Pals’ motion for summary judgment.
3
Bailey testified by deposition that he is six feet two inches tall and weighed approximately 225 pounds in
January 2013. Appellants’ App. Vol. 3 at 28.
4
Buddy & Pals also relies on mistaken identity, i.e., the fact that Bailey struck the wrong patron, as support
for a finding that foreseeability was lacking. See Appellants’ Br. at 13 (“In fact, [Bailey] didn’t even foresee
his actions”). We find this argument to be a nonstarter, as we assess foreseeability in terms of whether the
type of harm to any of its patrons was foreseeable to the landowner/proprietor.
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[15] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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