ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Matthew L. Hinkle I. Marshall Pinkus
Coots, Henke & Wheeler, P.C. Pinkus & Pinkus
Carmel, Indiana Indianapolis, Indiana
______________________________________________________________________________ FILED
Jun 30 2010, 2:31 pm
In the
CLERK
Indiana Supreme Court of the supreme court,
court of appeals and
tax court
_________________________________
No. 49S02-0907-CV-347
THE KROGER CO., D/B/A KROGER
SUPERMARKET AT 8150 ROCKVILLE
ROAD, INDIANAPOLIS, MARION
COUNTY, INDIANA,
Appellant (Defendant below),
v.
LU ANN B. PLONSKI,
Appellee (Plaintiff below).
_________________________________
Appeal from the Marion Circuit Court, No. 49C01-0509-CT-0038467
The Honorable Theodore M. Sosin, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 49A02-0807-CV-610
_________________________________
June 30, 2010
Rucker, Justice.
A business invitee of a grocery store was assaulted in the store’s parking lot. The store
contends in part that because the assault was not reasonably foreseeable it owes no duty to the
invitee. We granted transfer to explore this issue.
Facts and Procedural History
In this summary judgment action, the undisputed facts most favorable to the non-moving
party are these. In the late afternoon hours of October 2, 2003, Lu Ann Plonski parked her car on
the parking lot immediately adjacent to a Kroger food store on the westside of Indianapolis and
entered the store. When she finished shopping, Plonski, with purse in hand, placed her groceries
in a shopping cart, exited the store, and proceeded onto the lot. Once Plonski approached her
car, she placed her purse in the shopping cart, opened the trunk of the car, and began loading
groceries. After placing most of the groceries in the trunk, Plonski noticed a young man
approximately fifteen feet away walking in her direction. Plonski reported that she was
immediately concerned for her safety because the young man did not appear to be a Kroger
employee, was wearing dark clothing, and was overdressed for the weather. The man looked at
Plonski and asked “[w]hat’s going on?” Appellant’s App. at 19. His eyes shifted towards
Plonski’s purse and he then ran toward her. Plonski grabbed her purse and tried to run toward
the sidewalk but could get no further than the end of her car. The man grabbed Plonski and her
purse, and they started fighting. As they did so, the man was screaming at Plonski to give him
the keys to her car. The man then picked Plonski up, threw her in the trunk of the car and began
slamming the trunk lid on her legs. When the man looked away Plonski jumped out of the car
and ran into Kroger seeking assistance. Although Plonski managed to hold on to her car keys,
the man left the scene with Plonski’s purse.
Claiming injuries as a result of the assault, Plonski filed a complaint for damages against
Kroger on September 30, 2005. After the parties conducted discovery, on March 26, 2007,
Kroger filed a motion for summary judgment arguing (i) it owed no duty to Plonski, (ii) if it
owed a duty the duty was not breached, and (iii) in any event Plonski’s injuries were not
proximately caused by Kroger’s conduct. As a part of its motion Kroger designated, among
other things, the affidavits of three Kroger employees: the Risk Manager, the Safety Manager,
2
and the Head Cashier. The affidavits of the Risk Manager and Safety Manager asserted in
essence that the Kroger store is located in a part of the city that has a reputation for low levels of
criminal activity. Appellant’s App. at 9, 38. And that in the two-year period before October 2,
2003, there was only one report of criminal activity occurring on the store’s premises. Id. The
affidavit of the Head Cashier essentially alleged that the assailant who attacked Plonski was not a
guest or patron of the Kroger store. Appellant’s App. at 39. After being granted an extension of
time, Plonski responded to the motion on May 25, 2007. She designated her deposition and
attached exhibits, the deposition of her husband, photographs of her injuries, photographs of the
Kroger store and parking lot, her response to interrogatories, and her complaint for damages.
Appellant’s App. at 66-67.
Although the record is unclear of the exact date, sometime in September 2007 as a part of
discovery, Kroger provided Plonski with sixty pages of police reports evidencing over thirty
responses to criminal activity occurring on the Kroger premises within a two-year period of the
date on which the Plonski assault occurred. At the May 8, 2008 hearing on Kroger’s motion for
summary judgment Plonski moved to introduce the police reports as a “supplement” to her
previously filed response to Kroger’s summary judgment motion. On grounds of timeliness
Kroger objected and the trial court denied the motion. However, the trial court suggested that
Plonski could “make an oral motion to strike his affidavits and then argue the material.”
Appellant’s App. at 204. According to the trial court, “[y]ou certainly can move to strike the
affidavits based upon the fact that they’re inaccurate. And you can offer what you have in your
hand in support of your motion to strike.” Appellant’s App. at 205. Following through on the
trial court’s suggestion Plonski moved to strike and over Kroger’s objection introduced the
police reports into evidence. Armed with the police reports Plonski then proceeded to argue the
merits of Kroger’s summary judgment motion including facts contained in the police reports.
She made no specific argument concerning the merits of her motion to strike.
At the conclusion of the hearing, the trial court denied Kroger’s motion for summary
judgment. Kroger appealed arguing in part that the trial court erred in striking the affidavits, and
that Kroger “did not have a duty to protect Plonski from a criminal act committed suddenly and
without warning by a third party who was not a guest or patron of the store.” Br. of Appellant at
3
8. On review the Court of Appeals affirmed the trial court’s judgment holding in part that
Kroger’s duty was established by evidence that Plonski was assaulted in the grocery store
parking lot. Kroger Co. v. Plonski, 905 N.E.2d 448 (Ind. Ct. App. 2009). The court declined to
address the affidavit issue concluding that even had the trial court considered them, Kroger still
would not be entitled to summary judgment. Id. at 455 n.2. Having previously granted transfer
thereby vacating the opinion of the Court of Appeals, see Ind. Appellate Rule 58(A), we also
affirm the judgment of the trial court, but for reasons slightly different from those of our
colleagues.
Standard of Review
When reviewing a grant or denial of a motion for summary judgment our well-settled
standard of review is the same as it is for the trial court: whether there is a genuine issue of
material fact, and whether the moving party is entitled to judgment as a matter of law. Wagner
v. Yates, 912 N.E.2d 805, 808 (Ind. 2009). Summary judgment should be granted only if the
evidence sanctioned by Indiana Trial Rule 56(C) shows that there is no genuine issue of material
fact and the moving party deserves judgment as a matter of law. Freidline v. Shelby Ins. Co.,
774 N.E.2d 37, 39 (Ind. 2002). All factual inferences must be construed in favor of the non-
moving party, and all doubts as to the existence of a material issue must be resolved against the
moving party. Kovach v. Midwest, 913 N.E.2d 193, 197 (Ind. 2009).
Discussion
I.
Before addressing the primary issues in this appeal, we first turn our attention to the trial
court’s grant of Plonski’s motion to strike the Kroger affidavits, and allowing Plonski – in
support of her motion – to introduce the police reports into evidence. The trial court has broad
discretion in ruling on the admissibility of evidence. Price v. Freeland, 832 N.E.2d 1036, 1039
(Ind. Ct. App. 2005). And “[t]his discretion extends to rulings on motions to strike affidavits on
the grounds that they fail to comply with the summary judgment rules.” Id.; see also Doe v.
Shults-Lewis Child and Family Services, Inc., 718 N.E.2d 738, 749 (Ind. 1999) (“An affidavit
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which does not satisfy the requirements of T.R. 56(E) is subject to a motion to strike . . . .”)
(internal citations omitted). 1 But here there has been no claim that the Kroger affidavits failed in
some way to comply with the rules.
As a matter of course parties routinely present Trial Rule 56 materials in support of or in
opposition to motions for summary judgment attempting to demonstrate that there is or is not a
dispute of material fact. This is often accomplished through the presentation of affidavits by
affiants claiming to have personal knowledge of the facts alleged. It is quite ordinary and not at
all surprising that the parties’ affidavits or other Rule 56 materials compete with conflicting
claims about the facts. Affidavits submitted in support of or in opposition to a motion for
summary judgment may be stricken for a variety of reasons. But a difference of opinion about
what the facts are alleged to be is not one of them. See, e.g., Hayes v. Trs. of Ind. Univ., 902
N.E.2d 303, 311 (Ind. Ct. App. 2009), trans. denied (no abuse of discretion in striking portions of
affidavit containing unsworn and unverified attachments in opposition to a motion for summary
judgment); Id. (no abuse of discretion in striking portions of affidavit that contradicted affiant’s
deposition testimony); Breining v. Harkness, 872 N.E.2d 155, 158 (Ind. Ct. App. 2007), trans.
denied (noting inadmissible hearsay contained in an affidavit may not be considered in ruling on
a summary judgment motion); Indianapolis Podiatry, P.C. v. Efroymson, 720 N.E.2d 376, 384
(Ind. Ct. App. 1999), trans. denied (no abuse of discretion in striking portions of affidavit
containing legal conclusions and opinions about Indiana law); Coghill v. Badger, 430 N.E.2d
405, 406 (Ind. Ct. App. 1982), trans. denied (observing that conclusory statements of fact not
based on personal knowledge are properly stricken from an affidavit). In essence, the answer to
a competing claim about the facts is not to strike a party’s submissions. Instead, when the
submissions show that material facts are in dispute then summary judgment should be denied.
The problem in this case however is that the factual dispute concerning the level of
criminal activity on the Kroger premises as evidenced by the police reports was not admissible.
Over seven months in advance of the hearing on Kroger’s motion for summary judgment Plonski
1
Affidavits in support of or in opposition to a motion for summary judgment are governed by Indiana
Trial Rule 56(E), which provides in relevant part: “Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.”
5
received from Kroger, as a matter of discovery, police reports apparently refuting the assertion
that only one incident of criminal activity had occurred on Kroger’s premises within two years of
the assault on Plonski. It is true that Plonski received the documents after she had tendered her
response in opposition to Kroger’s motion for summary judgment. And as a general proposition
it is improper for a court to grant summary judgment while reasonable discovery requests that
bear on issues material to the motion are still pending. Boggs v. Tri-State Radiology, Inc., 730
N.E.2d 692, 698 (Ind. 2000). But here discovery requests were not pending at the time of the
hearing. Further, after receiving the police reports, Plonski did not ask for additional time to
conduct further discovery or otherwise respond to Kroger’s submissions. See, e.g., Ind. Trial
Rule 56(F) (permitting trial court to grant a continuance on summary judgment motion where
responding party submits affidavit indicating need for additional discovery); T.R. 56(I)
(permitting trial court “for cause found” to alter time limits set forth in the rule). And
importantly Plonski made no effort to explain how or why the police reports that were introduced
into evidence at the summary judgment hearing supported her motion to strike the Kroger
affidavits.
In sum, the trial court erred in granting Plonski’s motion to strike, and compounded the
error by allowing Plonski to introduce the police reports for the ostensible purpose of supporting
her motion. Upon review of the trial court’s denial of Kroger’s motion for summary judgment
“we stand in the shoes of the trial court and consider only those materials properly designated
and before the trial court pursuant to Trial Rule 56.” Miller v. Grand Trunk W. R.R. Inc., 727
N.E.2d 488, 494 (Ind. Ct. App. 2000) (emphasis added). Here, those materials include the
Kroger affidavits. They do not include the police reports.
II.
To prevail on a claim of negligence the plaintiff must show: (1) duty owed to the 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. Ford Motor
Co. v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007); King v. Ne. Sec., Inc., 790 N.E.2d 474, 484
6
(Ind. 2003). Absent a duty there can be no negligence or liability based upon the breach. Peters
v. Forster, 804 N.E.2d 736, 738 (Ind. 2004).
Seizing on language contained in Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048
(Ind. 2003) that “the law clearly recognizes that 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 . . . ,” Br. of Appellant at 9 (quoting Id. at 1052) (emphasis supplied in Brief), Kroger
contends it owed no duty to protect Plonski in that her injuries were caused by an unknown
assailant that was neither a patron nor a guest of Kroger. According to Kroger Bartolini stands
for the proposition, among other things, that the status of the attacker is an important
consideration in determining the duty owed by landowners to their business invitees. Kroger
reads Bartolini too narrowly. The quoted language merely reflected the facts in that case. In
pertinent part the facts revealed that underage patrons of a bar physically assaulted another
patron of the bar in the bar’s parking lot. Id. at 1052.2 Although the assailants in that case
happened to have been patrons of the establishment, this does not mean that a proprietor’s duty
of care to its business invitees is limited to harm caused only by other patrons or guests. Rather,
we declared more broadly that “[l]andowners have a duty to take reasonable precautions to
protect their invitees from foreseeable criminal attacks” and that “the duty to exercise reasonable
care extends to keeping its parking lot safe and providing a safe means of ingress and egress.”
Id. And although this duty has been variously stated, see, e.g., N. Ind. Pub. Serv. Co. v. Sharp,
790 N.E.2d 462, 465 (Ind. 2003) (“[p]roprietors 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,
including providing adequate staff to police and control disorderly conduct.”), whether a duty
exists is now “well-settled” in that it has long been declared or otherwise articulated by this
State’s case authority. Id.
The more challenging inquiry is whether in a given case, involving business owners and
their invitees, a particular element of duty has been met. This is so because the “duty only
extends to harm from the conduct of third persons that, under the facts of a particular case, is
2
Further, Bartolini relied in part on the holding in Muex v. Hindel Bowling Lanes, Inc., 596 N.E.2d 263
(Ind. Ct. App. 1992), which also involved one patron of a business assaulting another patron on business
property.
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reasonably foreseeable to the proprietor.” Bartolini, 799 N.E.2d at 1052. Although reasonable
foreseeablity is ordinarily a question of fact for the jury to decide, see Humphery v. Duke Energy
Ind., Inc., 916 N.E.2d 287, 295 (Ind. Ct. App. 2009), in the context of duty – which is a question
of law – see Estate of Heck v. Stoffer, 786 N.E.2d 265, 268 (Ind. 2003), reasonable foreseeablity
is determined by the court. It is in this context that the court considers the “totality of the
circumstances.” Delta Tau Delta v. Johnson, 712 N.E.2d 968, 972-73 (Ind. 1999); Vernon v.
Kroger Co., 712 N.E.2d 976, 979 (1999); L.W. v. W. Golf Ass’n., 712 N.E.2d 983, 984-85 (Ind.
1999). More precisely, the court must examine “all of the circumstances surrounding an event,
including the nature, condition, and location of the land, as well as prior similar incidents to
determine whether a criminal act was foreseeable.” Delta Tau Delta, 712 N.E.2d at 972. We
emphasize that this examination is not an inquiry into whether or to what extent a landowner
owes a duty to a business invitee. That issue is settled: “Landowners have a duty to take
reasonable precautions to protect their invitees from foreseeable criminal attacks.” Bartolini, 799
N.E.2d 1052. Rather, our inquiry is focused on whether a discreet element of the duty has been
satisfied.
Here, as the moving party in this summary judgment action, Kroger has the burden of
demonstrating that as a matter of law the criminal assault on Plonski was not foreseeable. The
only Rule 56 materials Kroger designated to the trial court bearing on this issue were the
affidavits of Kroger’s Risk Manager and Safety Manager. As noted earlier in this opinion both
managers asserted in essence that the Kroger store is located in a part of the city that has a
reputation for low levels of criminal activity. More precisely the Risk Manager alleged in
pertinent part, “[t]he store is located in an area that has a reputation for being a safe part of the
city and has a low frequency of violent criminal activity.” Appellant’s App. at 9. The Safety
Manager alleged in pertinent part, “[t]he Store is located on [the] far westside of Indianapolis in
a part of the community that has a reputation for relatively low amounts of criminal activity and
is not known to be an area where customers are generally subject to violent offenses against their
persons.” Appellant’s App. at 38.
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Even if these assertions stood alone, we would not be prepared to say that Kroger has
demonstrated that the assault against Plonski occurring on its premises3 was not foreseeable as a
matter of law. Although the affidavits give us some insight about the area of the community in
which the Kroger store is located, it tells us nothing about the criminal activity vel non occurring
in the store itself or on the adjacent parking lot. But these assertions do not stand alone. And
additional information contained in Kroger’s submissions give us even greater pause in declaring
that Kroger has demonstrated as a matter of law that criminal attacks on its premises were not
foreseeable. The affidavit of the Risk Manager further provides in pertinent part:
To my knowledge during a two year period prior to October 2,
2003, the store had little, if any, violent criminal activity. When I
refer to violent criminal activity I mean any crime against a
customer that involves a potential threat of physical harm such as
an assault, battery, robbery, purse snatching or car jacking. [] The
one incident of which I am aware that could be considered “violent
criminal activity” involving a patron occurred outside the store on
September 21, 2002, where an unknown subject attempted to drive
off in a car of a customer who had left the keys in the car.
Appellant’s App. at 10. The affidavit of the Safety Manager provides more detail about this
incident:
During the aforementioned two year period prior to October 3,
2003, there was only one report of criminal activity on the Store
premises that involved a business invitee being the victim of an
assault or attempted assault. In that instance, on September 21,
2002, a woman reported that she left her car keys in her unlocked
car and as she attempted to make a night deposit at the bank
located inside the store an unknown male attempted to drive off in
her car. The woman jumped into the passenger side of her vehicle
and struggled with the man before she exited the vehicle. Her
vehicle was returned to her a few minutes later.
3
We observe that at various points throughout this litigation including its Brief of Appellant at 2; its
Petition to Transfer at 1, and its Brief in Support of Summary Judgment presented to the trial court, see
Appellant’s App. at 47-48, Kroger has asserted in various iterations that it “leases this store and does not
own the parking lot or the drives that access the parking lot.” Id. However, Kroger has not argued this
lack of ownership as additional grounds in support of its motion for summary judgment.
9
Appellant’s App. at 37-38. Occurring over a year before the assault on Plonski, the foregoing
single event does not necessarily support the view that the criminal activity on Kroger’s premises
was foreseeable. But the procedural posture of this case is such that the burden is not on Plonski
to show that the assault could have been anticipated. Instead the burden is on the shoulders of
Kroger to demonstrate that the assault on Plonski was not foreseeable. The materials Kroger
submitted simply do not satisfy this burden.
To be sure Plonski’s Rule 56 materials on this point are not illuminating. She points for
example to surveillance cameras Kroger installed that included a view of the parking lot. Br. of
Appellee at 20 (citing Appellant’s App. at 17). And she notes that at the time of this assault they
apparently were not being monitored. Id. (citing Appellant’s App. at 27). Failure to monitor the
cameras may have a bearing on whether Kroger breached its duty of care. However, Plonski
does not explain how or why it has any bearing on the question of whether the assault against her
was reasonably foreseeable, which is an element of the existence of duty. In any event, the party
seeking summary judgment has the initial burden of proving the absence of a genuine issue of
material fact as to an outcome-determinative issue. Only then must the non-movant come
forward with contrary evidence demonstrating the existence of genuine factual issues that should
be resolved at trial. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123
(Ind. 1994). Here, Kroger as the moving party failed to carry its burden of demonstrating that
criminal activity on its premises at the time of the Plonski assault was not foreseeable. Thus,
Plonski was not required to provide contrary evidence.
III.
Kroger next contends that even if it owed a duty to Plonski, it neither breached that duty
nor were Plonski’s injuries the proximate cause of Kroger’s conduct. Although the existence of
duty is a matter of law for the court to decide, a breach of duty, which requires a reasonable
relationship between the duty imposed and the act alleged to have constituted the breach, is
usually a matter left to the trier of fact. Mangold ex rel. Mangold v. Ind. Dept. of Natural Res.,
756 N.E.2d 970, 975 (Ind. 2001). Only where the facts are undisputed and lead to but a single
inference or conclusion may the court as a matter of law determine whether a breach of duty has
10
occurred. Id. Proximate cause is an essential element of a negligence claim. Best Homes, Inc.
v. Rainwater, 714 N.E.2d 702, 706 (Ind. Ct. App. 1999). It has been defined as “that cause
which, in natural and continuous sequence, unbroken by efficient intervening cause, produces the
result complained of and without which the result would not have occurred.” Forster, 804
N.E.2d at 743 (citation omitted). Ordinarily, the issue of proximate cause is a question for the
jury and is not properly resolved by summary judgment. Wolfe v. Stork RMS-Protecon, Inc.,
683 N.E.2d 264, 268 (Ind. Ct. App. 1997); Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1145,
1156 (Ind. Ct. App. 1990), trans. denied.
Pointing to her deposition testimony that Plonski had shopped at the Kroger store
approximately one hundred times without incident and admitted feeling safe, Kroger argues it
breached no duty owed to Plonski because it had provided Plonski with safe ingress and egress
from the store numerous times before the date of this attack and there is no evidence that Kroger
did anything differently or failed to do something that it had not done on prior occasions. Br. of
Appellant at 21. As for proximate causation, Kroger essentially argues the attack on Plonski was
not foreseeable. Id. at 26-28. On this latter point, our discussion concerning the foreseeability
component of duty is equally applicable here. In summary, Kroger as the moving party failed to
carry its burden of demonstrating that criminal activity on its premises at the time of the Plonski
assault was not foreseeable.
Concerning breach of duty, the fact that Plonski felt safe on the numerous times she
visited the Kroger store in the past is not dispositive. Plonski testified that she felt safe because
of the existence of the surveillance cameras. See Appellant’s App. at 13-14. And there is at
least an inference that on the day of the attack the cameras were not being monitored.
Appellant’s App. at 27. As for not doing anything differently, this is the point of the matter.
That is to say, it is left to the fact finder to determine whether Kroger should have done more to
protect its business invitees from foreseeable criminal activity, including providing adequate
security personnel. On the question of breach of duty, Kroger has failed to show that the facts
are not in dispute and thus it is entitled to judgment as a matter of law.
11
Summary judgment is rarely appropriate in negligence actions. Rhodes v. Wright, 805
N.E.2d 382, 387 (Ind. 2004). And this is so because “negligence cases are particularly fact
sensitive and are governed by a standard of the objective reasonable person – one best applied by
a jury after hearing all of the evidence.” Id. In this case Kroger has persuaded us no differently.
Conclusion
The trial court properly denied Kroger’s motion for summary judgment. We therefore
affirm the judgment of the trial court.
Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.
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