dissenting.
I read the majority opinion to hold that a legitimate commercial business may be held liable for being located in a high crime area and to impose liability, virtually absolute, for injuries sustained in the vicinity of the place of business. For this reason, I dissent.
Neither the victim nor the assailants were shown to be guests or patrons. Thus the duty discussed at pages 768-769 of the majority opinion is not involved.
Plaintiff did not by affidavit, or otherwise, proffer evidence sufficient to demonstrate a factual issue on this point. As the trial court stated: "There is no genuine issue of fact that the assailants ... were in any way connected with [the Publ". (Appellant's Brief, p. 6).
I fail to see any basis for imposing upon defendant the duty to control the actions of strangers. Pursley v. Ford Motor Company (1984) 2d Dist.Ind. App., 462 N.E.2d 247; see also Martin v. Shea (1984) Ind., 463 N.E.2d 1092.
Whether Ember intended to become a patron at some future moment does not create a duty. He had not yet become a guest or patron and was not even en route to the entrance. He had digressed from any intended entry into the premises and had approached the assailants at the end of the block.
With respect to gratuitous assumption of a duty, I do not consider the three cases cited by the majority, Perry v. Northern Indiana Public Service Company (1982) 4th Dist.Ind.App., 483 N.E.2d 44, Plan-Tec, Inc. v. Wiggins (1983) 1st Dist.Ind.App., 443 N.E.2d 1212, and Clyde E. Williams & Associates, Inc. v. Boatman (1978) 1st Dist., 176 Ind. App. 430, 375 N.E.2d 1138, to be persuasive. All three involve safety requirements for employees or independent contractors on construction sites. The nature and extent of such a duty depends in large measure upon the construction contract involved and upon various safety statutes or regulations. Harris v. Kettelhut Construction, Inc. (1984) 2d Dist.Ind.App., 468 N.E.2d 1069.
Representations by the defendant here at an earlier time, to the effect that certain security measures would be taken in order to gain a liquor permit renewal, and additional representations of a similar nature made in order to maintain the good will of the neighborhood, are not guarantees to the public at large or to any specific individual of that person's safety or of freedom from injury occasioned by the criminal attacks of third persons not associated with the defendant or upon his premises.
The retention of an off-duty police officer who may have made an unrelated arrest in the past is not the undertaking of an open-ended and unrestricted duty to indemnify all members of the public against crim-imal assault by strangers and in all places in the vicinity of, but not on the premises.
I would note in passing, though I do not deem it determinative, that at the time of the attack, the manager of the Pub was himself patrolling the area, even though the additional person hired to patrol had not yet arrived for duty.
In summation, it is my belief that today's decision expands premises liability beyond any reasonable interpretation of existing law or of public policy.
I find this case even less susceptible to a determination of lability than Welch v. Railroad Crossing, Inc., (1986) 2d Dist., Ind.App., 488 N.E.2d 383, in which we affirmed a directed verdict in favor of a tavern. In Weick, a patron returning to the tavern was attacked outside the tavern by another patron. We held that there was no duty to anticipate a spontaneous attack. The efforts, here, by the Pub to maintain some degree of order and to maintain the good will of the neighbors does not, in my view, create a duty to anticipate an attack upon a non-patron by a group of non-patrons.
I would affirm the summary judgment.