concurring.
Our Supreme Court in Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1053 (Ind.2003) observed that the matter of "reasonable foreseeability is an element of a landowner or business proprietor's duty of reasonable care." (Emphasis supplied).4 Yet the Court noted that the issue is "merely at what point and in what manner to evaluate the evidence regarding foreseeability." Id. In doing so, the Court removed the issue of foreseeability from a strict "duty" as a matter of law analysis and placed it within the factual issues more appropriately resolved by the trier of fact.
Therefore, it may be said that although foreseeability is an element of the duty, it is more appropriate, under the holding of Bartolini, to place resolution of that question within the context of whether the "well-established" duty, needing no independent judicial determination as to its existence, was breached or whether any such breach was a proximate cause of plaintiff's injury. See Hammock v. Red Gold, Inc., 784 N.E.2d 495 (Ind.Ct.App.2003), trans. denied.5
My separate opinion does not diminish, but rather leads to, my concurrence in the reversal of the summary judgment.
. This observation was no doubt occasioned by the proposition that, in the context before us, a business proprietor's duty to exercise reasonable care for the safety of a patron extends only to protect against "foreseeable criminal acts" of third persons.
. It is in this sense that this author, in Lane v. St. Joseph's Reg'l Med. Ctr., 817 N.E.2d 266, 272 (Ind.Ct.App.2004), observed that Bartolini might be read to hold that "the facts did not actually 'establish' the duty but allowed for the application of the duty." It was not intended that such a reading of Bartolini was, as construed by the majority here, an "individualized determination of whether a duty exists where one is already well-settled." Slip op. at 7.