Harjinder Singh v. Amardeep Singh and Gurdwara Har Gobind Sahib Ji Corporation

FILED
Sep 08 2020, 9:23 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Tony H. Abbott GURDWARA HAR GOBIND
Foley & Abbott, LLC SAHIB JI CORPORATION
Indianapolis, Indiana Elizabeth S. Schmitt
Wooden McLaughlin LLP
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Harjinder Singh, September 8, 2020
Appellant-Plaintiff, Court of Appeals Case No.
20A-CT-959
v. Appeal from the Johnson Superior
Court
Amardeep Singh and Gurdwara The Honorable Kevin M. Barton,
Har Gobind Sahib Ji Judge
Corporation, Trial Court Cause No.
Appellees-Defendants. 41D01-1806-CT-94

Brown, Judge.

Court of Appeals of Indiana | Opinion 20A-CT-959 | September 8, 2020 Page 1 of 23
[1] Harjinder Singh appeals the trial court’s entry of summary judgment in favor of

Gurdwara Hargobind Sahib Ji Corporation (“Gurdwara Hargobind”). 1 We

reverse and remand for further proceedings.

Facts and Procedural History

[2] On April 15, 2018, Harjinder visited the gurdwara, or the Sikh place of

worship, 2 in Greenwood to attend Baisakhi, a special day of celebration. 3 At

some point after prayer, a “group that was trying to take over control of the

Gurdwara came into the temple and started a fight,” 4 and a dispute arose that

became physical. Harjinder was stabbed in the back and assaulted in other

areas of his person. Appellant’s Appendix Volume III at 107.

On June 25, 2018, Harjinder filed a complaint against his alleged assailant,

Amardeep Singh, a member of the Gurdwara Hargobind board, and he later

amended his complaint to include Gurdwara Hargobind as a defendant. The

amended complaint alleged that, as an operator of the gurdwara, Gurdwara

1
While the caption page of appellee’s brief refers to the entity as “Gurdwara Har Gobind Sahib Ji,”
Appellee’s Brief at 1 (capitalization omitted), in its answers to Harjinder’s first set of interrogatories,
Gurdwara Hargobind indicates that the correct legal name is “Gurdwara Shri Guru Hargobind Sahib Ji
Corporation.” Appellant’s Appendix Volume II at 80.
2
In his deposition, Rubaldeep Pawra indicated that Sikhs “usually prefer ‘gurdwara’ but people do use
‘temple’ also.” Appellant’s Appendix Volume III at 23.
3
In his deposition, Pawra referred to the day of the incident and special day of celebration for the Sikh
religion as “Vaisakhi.” Appellant’s Appendix Volume III at 28.
4
These comments appear in the Gurdwara Hargobind’s answers to the first set of interrogatories, which
Harjinder designated, see Appellant’s Appendix Volume III at 5, and we construe all factual inferences in
favor of the nonmovant, Harjinder. See Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013).

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 Hargobind owed business invitees a duty to maintain its premises in a

reasonably safe condition which it breached by “failing to reasonably control its

congregation and failing to provide proper security.” Appellant’s Appendix

Volume II at 38 (emphasis in original).

[3] On October 31, 2019, Gurdwara Hargobind filed a motion for summary

judgment and, in an accompanying brief, argued it did not owe a duty to

protect Harjinder from the unforeseeable criminal acts of third parties. It

designated an October 29, 2019 affidavit of a then-current Gurdwara Hargobind

board member, Rubaldeep Pawra, which stated: prior to April 15, 2018, and in

response to the 2012 Sikh temple shooting in Wisconsin, Gurdwara Hargobind

hired off-duty Greenwood Police Department Officers to be present on-site

during Sunday services and that, from time to time, Gurdwara Hargobind

would also hire a private security company to provide security for larger events,

with no written contract, by calling in advance if required. It indicated: prior to

elections in April 2018, Gurdwara Hargobind was aware of rising tensions

between two different groups so it notified the Greenwood Police Department

that it was concerned that certain agitators in the community would cause

trouble at the temple; the Greenwood Police Department suggested that

Gurdwara Hargobind send letters to the potential agitators, instructing them

not to enter the Temple, and that any unauthorized entry would be an unlawful

trespass; and the letters were sent prior to April 15, 2018, and were provided to

the Greenwood Police Department so that it was aware of the letters and the

identities of individuals who were not supposed to be on the property. Pawra’s

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affidavit further stated Gurdwara Hargobind made the decision not to

announce the new committee that would be taking control on April 15, 2018, in

an effort to avoid any confrontation, had no knowledge that any acts of

violence were about to occur in part because of the preventative measures

taken, and similarly had no reason to believe the perpetrator who allegedly

stabbed Harjinder would pose any threat of violence on the day of the incident.

It further indicated that off-duty Greenwood Police Department officers, a

Marion County Sheriff, and Central Patrol Security were all on-site that day to

provide security services 5 and that, without the knowledge and consent of

Gurdwara Hargobind, the Chief of Police instructed members of the

Greenwood Police Department to stand down and allow trespassers onto the

property. Gurdwara Hargobind designated its answers to Harjinder’s first set of

interrogatories, which were completed by Pawra and indicated that Central

Patrol Security had been “hired on April 7, 8, 15, and 22, 2018, as well as

various other dates when large events were held” to “ensure the safety of the

Gurdwara’s members,” that “[m]embers of the committee” were in charge of

hiring the security company, and that the “number of security guards present

would depend on the occasion.” Id. at 81. As to what was done to avoid the

incident, Gurdwara Hargobind answered in part that it hired security and it had

“trespassed individuals” who were “known to be trying to take over control of

the Gurdwara.” Id. Additionally, Gurdwara Hargobind designated Harjinder’s

5
In its answers to the first set of interrogatories, Gurdwara Hargobind indicated that it had hired the officers,
sheriff, and patrol security.

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 answers to its first set of interrogatories, in which he answered, in response to

being asked to describe his observation of the events which precipitated the

assault, that the “[d]efendant, suddenly and without provocation, violently

stabbed” him in the shoulder with a spear. Id. at 102.

[4] On February 20, 2020, Harjinder filed a brief in response to the motion for

summary judgment in which he argued that Gurdwara Hargobind had actual

knowledge of potential danger and actively participated in events which

precipitated his injury. Appellant’s Appendix Volume III at 10. Specifically,

Harjinder contended Gurdwara Hargobind’s leadership were “active

participants in starting and continuing the brawl,” Gurdwara Hargobind’s

Committee “was planning for trouble at the Temple” on April 15, 2018, and

that Gurdwara Hargobind knew: tensions were high, some people were “angry

about the way in which the new Committee had been hand-picked by the old

Committee,” police had been called the previous weekend to quell a

disturbance, the old and new Committees had issued Termination Notices to

twelve members who may have received them from a Sheriff’s deputy as they

were entering the gurdwara that day with their families, they had arranged for

more security to be present, and some of their members were carrying weapons.

Id. at 5, 10-11. He also argued that it assumed a duty to everyone who came to

worship through the affirmative act of hiring guards.

[5] Harjinder designated a February 12, 2020 deposition of Pawra and attached

Gurdwara Hargobind’s “Constitution (By-Laws),” which was dated February

2010, stamped “Indiana Secretary of State Packet . . . Effective Date:

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03/19/2010,” and which contained articles titled “Membership,” 6 “Board of

Directors,” 7 and “Executive Committee (of the Board of Directors).” 8 Id. at 65,

69, 70-71. In the deposition, Pawra explained that every two years an

application for board members was released and that he did not know of any

other qualifications for board membership; that board membership changed

every two years and one could not serve on consecutive boards; and that eleven

individuals selected from the new board of directors serve on the executive

committee. Pawra stated he was first selected as a board member in March or

April of 2018, was serving at the time of the deposition as an executive

committee member, and participated in the selection which nominated him to

the executive committee. He indicated the selection of the committee occurred

by “[m]utual understanding”9 in a school building beside the gurdwara, the

meeting had been relocated because “people who don’t normally attend the

gurdwara” were shouting in the main building, everyone “was asked to go

there,” and some board members chose not to go to the meeting. Id. at 26-27.

6
This article includes a section titled “2.10 Termination of membership from the Corporation.” Appellant’s
Appendix Volume III at 69.
7
Under this article, section “4.03 Method of Selection” indicates that the “selection date” was the last
Saturday of March and that the new Board of Directors would take charge on Baisakhi Sunday. Appellant’s
Appendix Volume III at 70.
8
Under this article, section 5.01 indicates that the executive committee would be selected from the new
Board of Directors on the same day of board selection.
9
Titled “Method of Selection,” section 5.03 of the Executive Committee article states that “1)
Representatives to the Committee posts shall be selected with mutual understanding. If mutual
understanding is not reached, proceed to step 2,” which indicates an alternative process involving individual
names written on slips and selection by a minor. Appellant’s Appendix Volume III at 71.

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 When asked when that event occurred, Pawra answered that it “was Saturday

prior to the incident,” and when asked if there were law enforcement or security

personnel on-site that Saturday, he indicated that law enforcement were called

and that “around eight officers came in.” Id. at 27. He indicated that, upon

their arrival, law enforcement asked people to leave and evacuate the building;

everybody was asked to leave, which “[t]ook awhile”; the board had not

selected the executive committee by then; and at that point the board moved to

another building. Id. When asked if he or “the gurdwara t[ook] steps” after the

election date and before the date of the incident “to avoid further disturbance,”

Pawra answered in the affirmative and stated, “we hired extra security” and

“tr[ied] not to announce the committee so there was no shouting or anyone

making any moves.” Id. at 28. He later indicated that during the incident the

security guards called the police and that he was told fifty-six police officers

were dispatched.

[6] Harjinder also designated a letter dated April 12, 2018, from an attorney writing

on behalf of Gurdwara Hargobind’s board of directors and executive committee

titled “Notice of Membership Termination, Exclusion and Denial of Entry . . .

.” Id. at 87 (capitalization omitted). The letter indicates that the board and

committee convened on April 11, 2018, and voted to terminate the letter

recipient’s membership in Gurdwara Hargobind and to bar any participation in

the temple’s activities. The resolution/minutes terminating membership was

attached as an exhibit to the letter, and it listed the names of twelve individuals

who were no longer permitted on the premises. According to Pawra’s

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 deposition, Satnam Singh (“Satnam”) was one of the members of the previous

committee responsible for the letter, and the Marion County Sheriff was hired

and present at the gurdwara to hand the letter to any individual who had not

received it by mail.

[7] Harjinder additionally designated four video files labeled “Amardeep Hands

Off Spear,” “Escort Out,” “Swinging the Spear,” and “Vestibule Skirmish,”

which he stated were recorded on April 15, 2018, using cameras inside the

gurdwara. Exhibit A-7. See Appellant’s Appendix Volume III at 17. He stated

the videos showed the “fighting started with the Gurdwara’s president, Satnam

Singh, pushing Davinder Nijjar, but it spread to engulf others.” Appellant’s

Appendix Volume III at 7. In his affidavit, Nijjar stated:

On April 15, 2018, before the fighting broke out, I was watching
several of the old committee members, including Satnam Singh
and Jasdeep Pawra, count the money that the Gurdwara had
received from members that morning. Members of the old
committee finished counting, and wrote the totals down on a
piece of paper. I was concerned that the members of the old
committee were mishandling the money, so I asked to take a
picture of the paper that logged the money. Several of the old
committee members, including Satnam Singh and Jasdeep
Pawra, became angry at my question and threatened me. I
attempted to walk away from the group, but they followed me. I
believed that Satnam Singh, who was the president of the old
committee, shoved me first. Then others then began to shove
me.

Id. at 124. In a designated affidavit, Daljit Singh stated that, “before the

fighting broke out, I witnessed people carrying weapons inside of” the

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 gurdwara; that, “[a]lthough carrying weapons is a religious practice, it was not

normally done inside the place of worship,” and that he felt threatened by the

people wielding weapons inside the prayer hall. Id. at 120. According to

Pawra’s deposition, signs were posted in the gurdwara that no photos or videos

were allowed to be taken because of “[b]ad publicity, where people do get into

argument and make the videos and post them online telling this gurdwara is

doing this, that people are getting argue [sic].” Id. at 45.

[8] On April 1, 2020, the court granted Gurdwara Hargobind’s motion for

summary judgment in a seventeen-page order which discussed foreseeability as

an element of duty in the context of the Indiana Supreme Court’s decision in

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

subsequent decisions of this Court, before finding:

27. . . . [T]he Gurdwara asserts that “it is not foreseeable that a
sudden stabbing that Plaintiff described as ‘violent’ and ‘without
provocation’ . . . would occur in a house of worship”. . . .

28. Plaintiff presents a more fact specific inquiry of
foreseeability. . . . [“]In short, they[, the Committee,] knew that
they were sitting on a potential powder keg and that the least
spark might set it off. What happened was reasonably
foreseeable in light of the information known to the Gu[]rdwara’s
Committee.” . . .

29. The Supreme Court in Goodwin focused the inquiry on “the
broad type of plaintiff and harm involved”. Goodwin v. Yeakle’s
Sports Bar & Grill, Inc., 62 N.E.3d 384, 393 (Ind. 2016). . . .

30. The broad type of Plaintiff here is a worshiper at a place of
worship. The broad type of harm is the probability or likelihood

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 that an act of violence will be committed. Places of worship are
historically places of peace. This is no different in Sikhism
whose members follow the Five Virtues of truth, compassion,
contentment, humility and love.

31. In fairly applying the “broad type of plaintiff and harm
involved” as set forth in Goodwin, it would not be foreseeable that
a worshiper at a place of worship[] would have committed
against the worshiper an act of violence by a fellow worshiper.
Accordingly, a duty would not arise to provide security to protect
the worshiper.

32. However, the Court has to take into account that a more fact
specific standard has been applied by the Court of Appeals and
recognized by the [Indiana] Supreme Court in Cavanaugh[‘s Sports
Bar & Eatery, Ltd. v. Porterfield, 140 N.E.3d 837 (Ind. 2020)].

The Court looks at the factors cited by the Plaintiff.

A. “They (the Committee) knew that tensions were high,”
. . . . Plaintiff’s statement is accurate.

B. “that some people were angry about the way in which
the new Committee had been hand-picked by the old
Committee,” . . . . There is no evidence that the “new
committee” was “handpicked” by the “old committee”.

C. “that police had been called to the Gurdwara the
previous weekend to quell a disturbance,”

Police were called the Saturday preceding April 15.

The “disturbance” consisted of people “shouting”.

D. “that the old and new Committees had issued
Termination Notices to members who may have received
them from a Sheriff’s deputy as they were entering the
Gurdwara that day with their families,” . . . . A written
Notice of termination of membership was prepared by [an]

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 attorney . . . to the [a]ffected members. The Notice was
sent out to the effected members. . . . The statement is
accurate as set forth, although it does not include the
relevant information that notices of termination had been
mailed prior to April 15, 2018.

E. “that they had arranged for more security to be present.
. . . That statement is correct.

F. “and that some of their members were carrying
weapons.”

Weapons are present. Weapons in the Sikh religion
represent homage to the warrior ancestors who defied the
Mughal Empire.

33. Plaintiff classifies the broad type of Plaintiff as “any person
present at the Gu[r]dwara when Committee members and its
president, Satnam Singh, pushed and shoved Davinder Nij[j]ar in
a tense and polarized environment.”

*****

35. Plaintiff’s “broad type of harm includes the injuries resulting
from the brawl that was ignited by the those (sic) actions.”

36. In delving further into the specific facts, tension was present.
Certain individuals believed that those individuals should be
represented on the Committee in charge of the Gurdwara. From
this knowledge, Plaintiff asserts that foreseeability would create a
duty upon the Gurdwara to provide security during a religious
ceremony.

37. The Court is unable to correlate that knowledge of tensions
arising from a dispute over the leadership of the Gurdwara makes
it foreseeable that violence will result. . . . Here, there is no
evidence of prior violence. There is no[] evidence that the
Gurdwara had knowledge that Amardeep Singh had been
responsible for acts of Violence. The disturbance to which

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 Plaintiff refers consisted of shouting. Of all occasions, religious
ceremonies would be most antithetical to violence. The Court
does not find a basis from event [sic] leading up to the physical
altercation that the Gurdwara would have had contemporaneous
evidence of imminent harm as set out in Cavanaugh’s . . . .

38. Plaintiff posits the creation of the duty in the interaction
between Nijjar and [the Committee president]. Effectively,
Plaintiff removes the element of foreseeability and turns the
determination of duty into a pure policy determination.

39. Even assuming that foreseeability was established, what are
the parameters of the duty imposed upon the Gurdwara? Two,
and later three, private security guards were present after the two
off duty police officers were directed to stand down. . . .
Ultimately fifty-six police officers responded to the Gurdwara on
April 15, 2018. Plaintiff is asserting that knowledge of tension
creates a duty to have an indeterminate number of security
officers of up to fifty-six present during a religious observance.
Even casting foreseeability aside and making an analysis from a
pure social policy standpoint (the third element of Webb[ v. Jarvis,
575 N.E.2d 992 (Ind. 1991), reh’g denied]) the Court is unable to
conclude that duty would be so expansive.

40. . . . [T]he Court is unable to conclude that violence was
foreseeability [sic] so as to create a duty.

41. Plaintiff then asserts that Defendant Gurdwara “assumed a
duty to everyone who came to the Gurdwara to worship,
including the Plaintiff, through the affirmative act of hiring
security guards.”

*****

43. Defendant Gurdwara had not hired security to protect
worshipers from fellow worshipers. . . .

44[.] Security was on[-]site to protect against external threats.

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 Appellant’s Appendix Volume II at 26-32 (some internal citations omitted).

Finding no genuine issue of material fact, the court entered summary judgment

in favor of Gurdwara Hargobind and against Harjinder.

Discussion

[9] The issue is whether the trial court erred in entering summary judgment in

favor of Gurdwara Hargobind. We review an order for summary judgment de

novo, applying the same standard as the trial court. Hughley v. State, 15 N.E.3d

1000, 1003 (Ind. 2014). The moving party bears the initial burden of making a

prima facie showing that there are no genuine issues of material fact and that it is

entitled to judgment as a matter of law. Manley v. Sherer, 992 N.E.2d 670, 673

(Ind. 2013). Summary judgment is improper if the moving party fails to carry

its burden, but if it succeeds, then the nonmoving party must come forward

with evidence establishing the existence of a genuine issue of material fact. Id.

We construe all factual inferences in favor of the nonmoving party and resolve

all doubts as to the existence of a material issue against the moving party. Id.

Summary judgment is rarely appropriate in negligence cases because they are

particularly fact-sensitive and are governed by a standard of the objective

reasonable person, which is best applied by a jury after hearing all the evidence.

Miller v. Rosehill Hotels, LLC, 45 N.E.3d 15, 19 (Ind. Ct. App 2015) (citing

Kramer v. Catholic Charities of Diocese of Fort Wayne-S. Bend, Inc., 32 N.E.3d 227,

231 (Ind. 2015)).

[10] Harjinder argues that Gurdwara Hargobind had a duty, which arose from the

foreseeability of his injury, to take reasonable precautions to protect him from
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 injury at the hands of others at the temple. He asserts reasonable inferences

support the conclusion that Gurdwara Hargobind had reason to know a violent

reaction to the shoving incident would spark a widespread altercation likely

resulting in injury, and that the knowledge and actions of the president of the

Executive Committee are imputed to Gurdwara Hargobind. He further argues

that Gurdwara Hargobind assumed a duty to everyone who attended to

worship through the affirmative act of arranging for extra security to be on-site

and that the court’s related findings are contrary to the evidence.

[11] Gurdwara Hargobind maintains it had no warning that a physical attack was

imminent at the time of the incident, that the occurrence of a verbal altercation

the weekend before was immaterial, and that Harjinder’s proposed

interpretation of the duty would make premises owners the insurers of their

invitees. It further argues that, even if this Court were to determine there was a

duty owed or assumed, it did not breach the duty as it took all reasonable

measures on April 15, 2018, to provide a safe environment for its worshippers.

[12] In maintaining that the trial court correctly determined it did not owe or

assume any duty to protect Harjinder from an unforeseeable physical

altercation at the temple on April 15, 2018, Gurdwara Hargobind points to

Cavanaugh’s, 140 N.E.3d 837 (Ind. 2020), the Indiana Supreme Court’s latest

jurisprudence on the issue. In concluding that the duty of a landowner to

protect the plaintiff did not extend to an unforeseeable criminal attack, the

Court stated:

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 Landowners must “take reasonable precautions to protect
invitees from foreseeable criminal attacks.” Rogers v. Martin, 63
N.E.3d 316, 326 (Ind. 2016) (citation omitted). Ascertaining
whether this duty extends to “the criminal act at issue,” Goodwin
v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 389 (Ind. 2016),
in a “particular scenario,” Rogers, 63 N.E.3d at 320, hinges on the
foreseeability of the attack, requiring “a general threshold
determination that involves an evaluation of (1) the broad type of
plaintiff and (2) the broad type of harm,” id. at 325. When
considering these categories, courts should determine whether
the defendant knew or had reason to know of any present and
specific circumstance that would cause a reasonable person to
recognize the probability or likelihood of imminent harm.

Under the criminal act at issue in this particular scenario,
Cavanaugh’s owed no duty to protect its patron from the sudden
parking lot brawl when no evidence shows that Cavanaugh’s
knew the fight was impending. Because we continue to decline
to impose a comprehensive “duty on proprietors to afford
protection to their patrons” from unpredictable criminal attacks,
Goodwin, 62 N.E.3d at 394, we reverse and remand.

*****

[T]he parties contest the specifics of the parking-lot encounter.
But, as discussed below, that disagreement does not affect the
threshold legal question of whether Cavanaugh’s owed
Porterfield any duty.

*****

[F]oreseeability in this context – as a component of duty – is
evaluated differently than foreseeability in proximate cause
determinations: while the latter foreseeability analysis requires a
factfinder to evaluate the specific facts from the case, the former
“involves a lesser inquiry,” requiring a court, as a threshold legal
matter, to evaluate “the broad type of plaintiff and harm
involved, without regard to the facts of the actual occurrence.”

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 Goodwin, 62 N.E.3d at 393 (citation omitted); see generally id. at
392 (rejecting a prior-used totality test because it “focuses on the
particular facts of the case rather than a broader inquiry” and “is
ill-suited to determine foreseeability in the context of duty”). By
focusing “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,” Rogers, 63 N.E.3d at 325, courts must
“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,” not merely that harm is “sufficiently
likely,” Goodwin, 62 N.E.3d at 392 (quotation omitted).
“[B]ecause almost any outcome is possible and can be foreseen,”
id., this ensures “that landowners do not become the insurers of
their invitees’ safety,” Rogers, 63 N.E.3d at 324 (quotation
omitted).

Just over three years ago, this Court adopted and applied these
principles in companion cases handed down on the same day.
First, because bar owners don’t “routinely contemplate that one
bar patron might suddenly shoot another,” we held that a bar
owed no duty to a patron who was unexpectedly shot by another.
Goodwin, 62 N.E.3d at 394. Expressly rejecting the injured
patron’s request to consider prior police reports and evidence of
the character of the neighborhood, this Court emphasized that
foreseeability in the duty context is not to be “premised on the
facts of [a] particular case.” Id. at 392, 393. This historical
evidence – while appropriate to consider when assessing
foreseeability at the proximate-cause stage – was inappropriate to
contemplate in the “lesser inquiry” concerning duty. Id. at 393.
Ultimately, no present knowledge informed the landowner that
any sudden harm was impending, and the restaurant didn’t owe
the patron a duty to protect him from the “criminal act at issue.”
Id. at 394, 389.

And second, a homeowner owed no duty to protect a party guest
suddenly attacked by a co-host because hosts don’t “routinely
physically fight guests whom they have invited.” Rogers, 63

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 N.E.3d at 326. “Although house parties can often set the stage
for raucous behavior[,] . . . to require a homeowner to take
precautions to avoid this unpredictable situation would
essentially make the homeowner an insurer for all social guests’
safety.” Id. No duty to protect from the unexpected fight was
owed to the house-party guest.

140 N.E.3d at 838-840.

[13] Further, the Court addressed evaluating the “broad class of plaintiff” and the

“broad type of harm” in these cases and acknowledged that, when it did so in

these cases,

a key factor is whether the landowners knew or had reason to
know about any present and specific circumstances that would cause
a reasonable person to recognize the probability or likelihood of
imminent harm. See Goodwin, 62 N.E.3d at 385 (noting that, just
before the barroom shooting, all the parties were separately
“socializing” at “the small establishment”); Rogers, 63 N.E.3d at
319 (remarking that the homeowner observed that her co-host
was, before attacking a house-party guest, “just ‘being normal,’
and it was not obvious to her that he had ‘a buzz going’” from
drinking alcohol); id. (observing that, before the guest was found
dead outside her home, the homeowner saw him “lying
motionless on the basement floor with his eyes closed”). If
landowners had reason to know of any imminent harm, that
harm was, as a matter of law, foreseeable in the duty context.
See, e.g., id. at 327 (holding that it was foreseeable “that a house-
party guest who is injured on the premises could suffer from an
exacerbation of those injuries”). In the years since Goodwin and
Rogers, courts have thoughtfully applied this framework, finding
duty only when landowners had this contemporaneous knowledge.

*****

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 [W]hen a college student sexually assaulted his inebriated
sophomore party guest in his fraternity house, the Southern
District found a duty owed when the “fraternity knew or should
have known of [ ] prior allegations” of sexual assault against the
member. Doe v. Delta Tau Delta Beta Alpha Chapter, No. 1:16-cv-
1480, 2018 WL 3375016, at *4 (S.D. Ind. July 11, 2018). A year-
and-a-half before this assault, another sophomore’s friend told
four of this member’s fraternity brothers that he had sexually
assaulted her during a similar alcohol-fueled event while she was
“blacked out or possibly unconscious.” Id. at *2. These
fraternity brothers were bound, by their fraternity’s code of
conduct, to “confront members of this Fraternity who” violated
the code, which compelled respecting “the dignity of all persons”
and barred the “sexual[ ] abuse [of] any human being.” Id. at *3.
Because “a defendant’s actual knowledge is an appropriate
consideration in determining foreseeability and the existence of
any duty owed,” the fraternity’s awareness, through its members,
of the accusations of sexual assault against this particular
member gave it a duty to protect the “invitee to a social fraternity
event” from his assault at the party. Like the restaurants and bar
discussed above [(i.e., the parties in Hamilton v. Steak ‘n Shake
Operations Inc., 92 N.E.3d 1166 (Ind. Ct. App. 2018), trans. denied;
Certa v. Steak ‘n Shake Operations Inc., 102 N.E.3d 336 (Ind. Ct.
App. 2018), trans. denied; and Buddy & Pals III, Inc., 118 N.E.3d
38)], the fraternity had reason to recognize the probability or
likelihood of looming harm when it hosted another spirited
gathering and left the very member it knew was accused of sexual
assault unhindered to assault another drunken party guest.

But without notice of present and specific circumstances that
would cause a reasonable person to recognize the risk of an
imminent criminal act, our Court of Appeals has consistently
held since Goodwin and Rogers – until now – that landowners
cannot foresee these sudden attacks.

Id. at 840-843 (emphases added).

Court of Appeals of Indiana | Opinion 20A-CT-959 | September 8, 2020 Page 18 of 23
[14] The Court’s 3-2 majority opinion seems to instruct both narrowing the review

of whether a duty is foreseeable and limiting when a duty is found to exist. In

applying its framework, the Court ultimately found:

Cavanaugh’s had no reason to foresee a bar patron blinding
another during a sudden parking lot fight. Unlike the cases
where courts have found a duty when a landowner knew or
should have known about likely looming harm, Porterfield does
not show that Cavanaugh’s had any reason to believe the fight
would occur. The skirmish occurred suddenly and without
warning: for hours before the fracas, Porterfield and his friend
socialized with bartenders and had no animosity with any other
customers. Indeed, no evidence suggests any tension in the bar
before the fight. Cf. Hamilton[ v. Steak ‘n Shake Operations Inc., 92
N.E.3d 1166, 1173 (Ind. Ct. App. 2018)] (holding fight
foreseeable when restaurant knew of “[a]n escalating thirty-
minute encounter” between specific groups)[, trans. denied]; Certa[
v. Steak ‘n Shake Operations, Inc., 102 N.E.3d 336, 340-341 (Ind.
Ct. App. 2018)] (holding fight foreseeable when restaurant knew
“patrons had engaged in a verbal altercation and was aware of
the potential for escalation of the conflict”)[, trans. denied]. And
the bar had no reason to think that Porterfield, his assailants, or
any of their affiliates were particularly suited to committing the
specific criminal acts they perpetrated. Cf. Buddy & Pals[ III, Inc.
v. Falaschetti, 118 N.E.3d 38, 43 (Ind. Ct. App. 2019)] (holding
fight foreseeable when bar knew patron “was not taking his
ejection [for fighting] well and was in a fighting mood”)[, trans.
denied]; Delta Tau Delta[ Beta Alpha Chapter, No. 1:16-cv-1480-
JMS-DML, 2018 WL 3375016, at *4 (S.D. Ind. July 11, 2018)]
(holding sexual assault foreseeable when “fraternity knew or
should have known of the prior allegations” of sexual assault
against particular member).

By pointing to police runs made to the bar during the year before
the quarrel, Porterfield improperly substitutes evidence of the
bar’s past raucousness for contemporaneous knowledge of
Court of Appeals of Indiana | Opinion 20A-CT-959 | September 8, 2020 Page 19 of 23
 imminent harm. We repeat, this type of historical evidence,
while “appropriate in evaluating foreseeability in the context of
proximate cause,” should play no role when we evaluate
“foreseeability as a component of duty.” Goodwin, 62 N.E.3d at
393. Considering prior reports of the bar’s unruliness shifts our
common law jurisprudence back into a recently supplanted
totality analysis and risks fabricating a duty when harm is merely
“sufficiently likely.” Id. at 392 (quotation omitted). A
landowner’s present knowledge, however, more conclusively
elevates the knowledge of risk to “some probability or likelihood
of harm,” id., allowing courts to continue to find a duty when
“reasonable persons would recognize it and agree that it exists,”
Rogers, 63 N.E.3d at 325.

Id. at 843-844.

[15] In a separate opinion in which Justice David joined, Justice Goff dissented and

disagreed with adding new requirements to the foreseeability inquiry that

“elevat[ed] the standard to impose a duty.” Cavanaugh’s, 140 N.E.3d at 844

(Goff, J., dissenting). He further observed that the “majority also relie[d] on the

particular facts of this case” including “the lack of tension in the bar, noting that

‘for hours before the fracas, [the plaintiff] and his friend socialized with

bartenders and had no animosity with any other customers.’” Id. at 846

(quoting majority op. at 843). Accordingly, it appears that, in practice, an

examination of particular facts is necessary to fully resolve the question of duty

Court of Appeals of Indiana | Opinion 20A-CT-959 | September 8, 2020 Page 20 of 23
 at this stage and to properly apply Cavanaugh’s required “foreseeability as a

component of duty” analysis.10 See 140 N.E.3d at 844 (majority op.).

[16] Here, the designated evidence reveals that, on the weekend prior to the April

15th incident, shouting in the main building disrupted the selection of a new

Executive Committee, that the selection process was relocated, that law

enforcement was called, and that, when “around eight officers came in,”

everybody was asked to leave. Appellant’s Appendix Volume III at 27. After

the election, the Committee took steps to avoid further disturbances, including

not announcing the committee selection, hiring extra security, and issuing

membership termination letters for twelve members.

[17] On the day Harjinder asserts Amardeep, a Gurdwara Hargobind board

member, stabbed him, more security guards were present on the premises than

on the election Saturday. Signs were posted in the gurdwara that restricted

photos or videos because of bad publicity and people becoming argumentative.

That day, people carried weapons, which the designated evidence reveals was a

normal practice, and carried weapons inside the place of worship, which

Harjinder’s designated evidence indicated “was not normally done.” Id. at 120.

10
For example, the examination of a landowner’s “present knowledge” is an inquiry which the Cavanaugh’s
majority instructs may “more conclusively elevate[] the knowledge of risk to ‘some probability or likelihood
of harm’.” 140 N.E.3d at 844 (majority op.). Despite the admonition in Goodwin that duty is to be
determined “without regard to the facts of the actual occurrence,” 62 N.E.3d at 393 (citation omitted),
subsequent cases have utilized a review of “present and specific circumstances,” Cavanaugh’s, 140 N.E.3d at
840 (citing Goodwin, 62 N.E.3d at 385; Rogers, 63 N.E.3d at 319), in determining the existence of a legal duty.
This appears to be a distinction without a difference, and clarification in this area would be helpful.

Court of Appeals of Indiana | Opinion 20A-CT-959 | September 8, 2020 Page 21 of 23
 Further, members of the board and committee, including Satnam, the president

of the Gurdwara Hargobind committee, terminated the memberships of twelve

individuals by letter and, in anticipation that certain individuals had not

received the notice, hired a Marion County Sheriff’s deputy to hand out the

letter the day of the incident and to prevent entrance to the premises. Two of

the four designated video recordings, when viewed together, contain footage of

Satnam and an entourage escorting Nijjar through the temple’s prayer room, as

well as of an individual wielding a spear. See Exhibit A-7, “Escort Out” clip at

0:21, “Swinging the Spear” clip at 0:01-0:08; Appellant’s Appendix Volume III

at 43. Satnam can be seen shoving Nijjar, who turns around and confronts

him. Moments afterwards, individuals already inside the prayer hall surround

Satnam, Nijjar, and the escort group, other individuals enter the room, a large

crowd forms, and several physical skirmishes break out across the prayer hall.

It is during this time that the stabbing in question occurs. We note that unlike

in Cavanaugh’s, which involved third parties, i.e., a bar patron fighting with

another departing bar patron in the parking lot, the present case involves

Satnam, the president of the Gurdwara Hargobind committee, shoving Nijjar,

which happened seconds before the larger fracas began when Harjinder was

allegedly stabbed by a board member.

[18] On these facts, we find that Gurdwara Hargobind had notice of present and

specific circumstances that would cause a reasonable person to recognize the

risk of an imminent criminal act, and had reason to recognize the probability or

likelihood of looming harm on a special day of celebration at which its change

Court of Appeals of Indiana | Opinion 20A-CT-959 | September 8, 2020 Page 22 of 23
 in leadership was to be announced and the new Board of Directors was to take

charge.

[19] For these reasons, we reverse the trial court’s entry of summary judgment in

favor of Gurdwara Hargobind and remand for further proceedings.

[20] Reversed and remanded.

Robb, J., and Crone, J., concur.

Court of Appeals of Indiana | Opinion 20A-CT-959 | September 8, 2020 Page 23 of 23