Jill, Roeland, Jaymie and Jordyn Polet v. ESG Security, Inc.

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Maggie L. Smith Christopher A. Pearcy
Frost Brown Todd LLC Theodore J. Blanford
Indianapolis, Indiana Hume Smith Geddes Green &
Simmons, LLP
P. Gregory Cross Indianapolis, Indiana
The Cross Law Firm
Muncie, Indiana

Michael D. Wilhelm FILED
Defur Voran LLP
Dec 27 2016, 9:36 am
Fishers, Indiana
CLERK
Indiana Supreme Court
Court of Appeals
Anthony W. Patterson and Tax Court

Peter L. Obremskey
John M. McLaughlin
Paul Kruse
Parr Richey Obremskey Frandsen & Patterson
LLP
Lebanon, Indiana

James R. Williams
Scott E. Shockley
Defur Voran LLP
Muncie, Indiana

Kenneth J. Allen
Robert D. Brown
Sarah M. Cafiero
Kenneth J. Allen Law Group, LLC
Valparaiso, Indiana

Matthew Boulton
Randall Juergensen
Kyle Lamar
Keller & Keller
Indianapolis, Indiana

Thomas Hastings
Jeff Oliphant
The Hastings Law Firm
Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016 Page 1 of 23
Terry Monday
Monday Jones & Albright
Indianapolis, Indiana

Lee C. Christie
Lance D. Cline
Cline Farrell Christie & Lee, P.C.
Indianapolis, Indiana

David W. Stewart
Stewart & Stewart
Carmel, Indiana

W. Scott Montross
Michael S. Miller
Montross Miller Muller Mendelson &
Kennedy, LLP
Indianapolis, Indiana

Scott A. Benkie
Douglas A. Crawford
Benkie & Crawford
Indianapolis, Indiana

Rodney A. Tucker
Hausmann-McNally Law Offices
Indianapolis, Indiana

Vince P. Antaki
Reminger Attorneys At Law
Cincinnati, Ohio

Geoffrey G. Giorgi
Merrillville, Indiana

Jeffrey J. Stesiak
Pfeifer Morgan & Stesiak
South Bend, Indiana

Steven E. Willsey
Indianapolis, Indiana

George Hoffman, III
Hoffman Admire & Newcomb

Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016 Page 2 of 23
Franklin, Indiana

John LaDue
Timothy Curran
Ladue Curran & Kuehn LLC
South Bend, Indiana

Scott Starr
Shannon G. Starr
Starr Austen & Miller, LLP
Logansport, Indiana

ATTORNEYS FOR APPELLANTS, ALISHA
BRENNON AND THE ESTATE OF
CHRISTINA SANTIAGO
Kenneth J. Allen
Robert D. Brown
Sarah M. Cafiero
Kenneth J. Allen Law Group, LLC
Valparaiso, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Jill, Roeland, Jaymie and Jordyn December 27, 2016
Polet, et al., Court of Appeals Case No.
Appellants-Plaintiffs, 49A02-1510-CT-1631
Appeal from the Marion Superior
v. Court
The Honorable Timothy W.
ESG Security, Inc., Oakes, Judge
Appellee-Defendant. Trial Court Cause No.
49D02-1111-CT-44823

Brown, Judge.

Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016 Page 3 of 23
[1] Jill, Roeland, Jaymie and Jordyn Polet, et al., appeal the trial court’s grant of a

motion for summary judgment filed by ESG Security, Inc. (“ESG”), and raise

three issues which we consolidate and restate as whether the trial court properly

granted summary judgment in favor of ESG. 1 We affirm. 2

Facts and Procedural History

[2] This appeal arises out of the collapse of the stage at the Indiana State Fair on

August 13, 2011. The parties cite to a number of documents related to the

agreement between the State Fair and Sugarland, the musical artist scheduled to

perform that night. A document titled “SugarLand Production / Catering /

Technical Rider” states:

III. SECURITY

A. SECURITY GUARDS

1
We held oral argument on October 25, 2016, in Indianapolis. We commend counsel for their well-prepared
advocacy.
2
Alisha Brennon and the Estate of Christina Santiago (individually, “Brennon” and “the Estate,” and collectively
with Roeland, Jaymie and Jordyn Polet, et al., the “Appellants”) also appeal, join in the arguments made by the
other appellants, and raise three issues which we revise and restate as whether a final partial summary judgment on
any claim for harm to the same-sex marital relationship between Brennon and Santiago was entered in favor of
ESG, whether Brennon and the Estate may appeal the partial summary judgment in favor of Eric Milby and Milby
Productions, Inc., to the extent it was deemed in favor of ESG, and, if so, whether the court erred in granting
partial summary judgment. Because we affirm the grant of ESG’s motion for summary judgment, we need not
address the arguments of Brennon and the Estate relating to harm to the relationship between Brennon and
Santiago.

Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016 Page 4 of 23
 Purchaser will provide and pay for professional security guards
for protection of Artist, Artist’s band and crew, from Load-In
until Load-Out is completed.

B. SECURITY MEETING
It will be necessary to hold a security meeting prior to the
opening of the doors to the public. Present at the meeting should
be: Venue Representative, Purchaser, Head of Security, Tour
Manager and Producer’s Security Representative. . . .

C. STAGE GUARDS
Purchaser will ensure access to the stage will be guarded by
security at all times (with a minimum of 3 security people in front
of the stage & 1 on each stage left and right during the
performance) and only those persons designated by Producer will
be allowed on stage during performance. Security personnel will
not be allowed on stage during the performance or in the dressing
rooms at any time.

D. OVERNIGHT GUARDS
If the situation requires Artist, band or crew to leave equipment
at the venue overnight, security personnel will be needed from
the official time the work ends until the official time work begins
the following day.

E. MEET AND GREET
2 security guards will be required by the Artists during the Meet
and Greet. Please make the specific arrangements for this at the
pre-show Security Meeting.

F. VEHICLE GUARDS
Purchaser will be liable for any damage to Artist’s buses or trucks
that are attributable to negligence on the part of Purchaser
and/or Purchaser’s Representative should such damage occur
while said buses or trucks are at the performance promises [sic]
during the period from Load-In until Load-Out is completed. If

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 any of the vehicles must be parked away from the backstage
entrance, a security person must be on call at the time and place
that vehicle is parked.

G. GUARD LOCATION & TIMES
Dressing Rooms Area 2 from Load until Departure
Stage 5 from Doors until Patrons Clear
Mix Position 2 from Doors until Patrons Clear
Backstage Area 2 from Load In until Departure
Video Projection Areas 1 per location from Doors until
Patrons Clear

Appellants’ Appendix at 2503-2505. 3

[3] The “2011 Indiana State Fair Commission [] Rider” referenced Sugarland and

the concert and provided:

THE TERMS OF THIS ISFC RIDER WILL TAKE
PRECEDENCE OVER ANY CONFLICTING TERMS
CONTAINED IN THE ENGAGEMENT CONTRACT AND
ITS ASSOCIATED RIDERS. THIS RIDER IS
INCORPORATED BY REFERENCE AS PART OF THE
ENGAGEMENT CONTRACT.

3
This document includes a space for signatures at the end, but it is not signed. A cover sheet is attached to
the front of the document, which states:

Numerous requests for “The Sugarland Contract” have been submitted. Because of the
events of August 13, 2011, the customary execution of a final written contract and payment
for services was not completed. While gathering and identifying documents responsive to
this request, we have compiled many documents that provide insight into the negotiation of
terms and are providing the linked documents to show the terms of the negotiation and
rider.

A final version of the 2010 contract has also been requested and is posted below.

Appellants’ Appendix at 2502.

Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016 Page 6 of 23
 9. SECURITY – Indiana State Police provides a large contingent
of officers to work during the Fair. There is also a detail of State
Police assigned to each of the entertainment facilities; i.e. Pepsi
Coliseum and ISF Grandstand. They are familiar with the State
Fair audiences and shows, and are most cooperative.

Id. at 2524-2525. 4

[4] A document titled “SugarLand 2011 Tour Contract Rider” provides:

XV. SECURITY
Purchaser is solely responsible for providing security in
connection with the Engagement. To this end, Purchaser shall
provide and pay for adequate security for the protection of all
persons and property in connection with the Engagement
including without limitation, Producer (and respective agents,
employees, contractors and equipment) and patrons. The
foregoing is in addition to any other security requirements of
Producer contained in the attached Artist Production Rider.

Id. at 2539.

[5] The State Fair had no written contract with ESG, but it hired ESG for the

purpose of fulfilling the Fair’s security obligations.

[6] The bike racks that formed and created the “Sugar Pit,” an area for patrons in

front of the stage, was installed by Indiana State Fair Commission personnel at

the request of Sugarland. Id. at 1351. The Sugar Pit had two access points. At

4
This document contains a place for signatures for the Executive Director of the Indiana State Fair
Commission and the artist/contractor/client, but it is not signed.

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 approximately 6:30 p.m., Cynthia Hoye, the Executive Director of the Indiana

State Fair, called for an opportunity “to get decision-makers together because it

appeared” to her that a weather front was coming in close to show time. Id. at

1234. ESG was not asked to attend the meeting nor did it attend. Around 8:00

p.m., the meeting was held, and Director Hoye and the others present decided

to delay the concert. Eric Milby then asked Sugarland to delay the show, but

Sugarland did not want to do so. After further discussion, Milby went back to

Sugarland, again asked for a delay, and then returned to Director Hoye and

indicated that Sugarland refused the second request. At no time was ESG

consulted in the decision of whether or not to delay the show.

[7] ESG employees were identified by distinctive ESG uniforms, and those who

were outside the Sugar Pit were to see whether anyone was standing on chairs

outside the Sugar Pit and that no one was attempting to jump over the bike

racks and enter the Sugar Pit. At some point, Stephen Blackburn, an ESG

employee, roamed in and out of the Sugar Pit and went into it in order to assist

anyone who might have had a question. Blackburn checked tickets of patrons

and answered questions of people in the Sugar Pit as to where they could go to

smoke or obtain something to drink. Blackburn directed some to an exit where

they could go to smoke away from everyone. A couple of patrons asked

Blackburn if they were going “to delay the concert, cancel the concert,” and he

told them that “we had not been informed yet, but since they had reserved seats

right there on the front row beside the Sugar Pit, that their best bet would be to

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 go and stay somewhere where it was dry until they made the decision.” Id. at

2215.

[8] At some point, four ESG employees were standing between the Sugar Pit

crowd and the stage. Adam Cesnik, an ESG employee, was to make sure that

an aisle stayed clear of people wanting to stand closer and to “make sure that

people, bodies, were in front of the seats not crammed together in an unsafe

fashion.” Id. at 2306-2307. Barbara Dickens, an ESG employee, talked to three

or four concert guests because they were asking about the weather and if there

was going to be an evacuation or not. Dickens told them: “[A]s far as I knew,

there was none; and if there was to be an evacuation, they would make an

announcement.” Id. at 2601.

[9] Around 8:40 p.m., Bob Richards gave the following announcement to the entire

crowd:

How are you? As you can see to the west, there are some clouds.
We are all hoping for the best that the weather is going to bypass
us, but there’s a very good chance that it won’t. So just a quick
heads-up before the show starts, if there is a point during the
show where we have to stop the show on stage, what we’d like to
have you do is calmly move toward the exits and then head
across the street to either the Champions Pavilion, the Blue
Ribbon Pavilion, or the Pepsi Coliseum. And then once the
storm passes and everything is safe, we’re going to try our best to
come back and resume the show, which we have every belief that
that’s going to happen. So please get ready because in just a
couple of minutes we’re going to try to get Sugarland on the
stage. Have a great show.

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 Id. at 1706-1707.

[10] Indiana State Police Captain Brad Weaver was surprised by the announcement

and thought the announcement was going to be that the people should evacuate

in an orderly fashion. Captain Weaver then said, “We’re calling this off right

now.” Id. at 1463. Before that announcement was made, the stage collapsed

due to a high wind. Paul Poteet later testified that the radar images that he was

looking at that evening showed the line of storms approaching Indianapolis,

and one of the exhibits referenced an outflow which is an area of wind that

flows out of and ahead of thunderstorms, and that an outflow is not unusual in

the spring or summer. Seven people were killed and numerous persons were

injured.

[11] On March 16, 2012, the estates of decedents, injured, and their families sued

thirty-five defendants in ten consolidated causes of action alleging that their

actions and inactions contributed to the deaths and injuries of the victims.

[12] On April 17, 2015, ESG filed a motion for summary judgment alleging that

there were no genuine issues of material fact that create a duty on the part of

ESG, no breach of any purported duty, and no act or omission of ESG that

proximately caused the Appellants any injury or damages. On June 19, 2015,

the Appellants filed a memorandum in opposition to ESG’s motion for

summary judgment.

[13] On August 25, 2015, the court held a hearing. On September 14, 2015, the

court granted ESG’s motion for summary judgment. On September 30, 2015,

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 the court granted ESG’s motion for entry of final judgment and motion nunc

pro tunc.

Discussion

[14] The issue is whether the trial court properly granted summary judgment in

favor of ESG on the Appellants’ claim of negligence. 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.

Goodwin et al., v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).

The party moving for summary judgment has the burden of making a prima facie

showing that there is no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law. Id. Once these two

requirements are met by the moving party, the burden then shifts to the non-

moving party to show the existence of a genuine issue by setting forth

specifically designated facts. Id. Any doubt as to any facts or inferences to be

drawn therefrom must be resolved in favor of the non-moving party. Id.

Summary judgment should be granted only if the evidence sanctioned by

Indiana Trial Rule 56(C) shows there is no genuine issue of material fact and

that the moving party deserves judgment as a matter of law. Id.

[15] Generally, in order to recover on a negligence theory, a plaintiff must establish:

(1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and

(3) injury to the plaintiff resulting from the defendant’s breach. Rhodes v.

Wright, 805 N.E.2d 382, 385 (Ind. 2004). A defendant is entitled to summary
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 judgment by demonstrating that the undisputed material facts negate at least

one element of the plaintiff’s claim. Countrymark Coop., Inc. v. Hammes, 892

N.E.2d 683, 688 (Ind. Ct. App. 2008), trans. denied. “Absent a duty there can be

no negligence or liability based upon the breach.” Knighten v. E. Chicago Hous.

Auth., 45 N.E.3d 788, 791 (Ind. 2015) (quoting Kroger Co. v. Plonski, 930 N.E.2d

1, 6 (Ind. 2010)).

[16] The Appellants argue that ESG had a duty to exercise due care and points to

King v. Northeast Security, Inc., 790 N.E.2d 474 (Ind. 2003), reh’g denied. The

Appellants argue that we need not conduct an analysis under Webb v. Jarvis, 575

N.E.2d 992 (Ind. 1991), reh’g denied, regarding whether a duty exists, based

upon King, but asserts that such an analysis would reach the same result.

[17] ESG argues that King is not instructive because it held that a security company

can be liable for negligently carrying out its contractually assumed obligations

and that, if the Appellants’ argument carries the day, then the security company

in King would have a broader duty to protect against every possible hazard on

the premises such as weather related hazards, premises hazards, or other

external hazards outside of its contractually assumed obligations. ESG argues

that the Webb test must be applied.

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[18] The Indiana Supreme Court recently discussed duty in Goodwin. 5 In that case,

patrons injured after a shooting in a neighborhood bar sued the bar for

negligence. 62 N.E.3d at 385. The trial court granted summary judgment in

the bar’s favor, concluding it owed no duty to the patrons because the shooting

was not foreseeable as a matter of law. Id. On appeal, the Indiana Supreme

Court observed that it had previously reaffirmed that landowners have a duty to

take reasonable precautions to protect their invitees from foreseeable criminal

attacks in Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048 (Ind. 2003). Id. at

388. In Paragon the Court stated:

Where, as in this case, the alleged duty is well-established, there
is no need for a new judicial redetermination of duty. The
court’s function was merely to adequately inform the jury of the
applicable duty, and the jury was then to determine whether the
Pub breached this duty of reasonable care to protect its invitees
from foreseeable criminal attacks.

Id. (quoting Bartolini, 799 N.E.2d at 1053). The Court held that “[t]his

language understandably could be read to mean that the trial court’s sole

responsibility with respect to the question of duty in a negligence action is

simply to instruct the jury on the question—end of story. But such a reading is

much too narrow.” Id. The Court stated that “[t]he very scope of the duty a

landlord owes its invitees—to take reasonable precautions to protect invitees

5
We note that Goodwin was handed down on October 26, 2016, after the briefs were filed and after oral
argument in this case.

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 from foreseeable criminal acts—necessarily calls for the court’s evaluation of

foreseeability.” Id. at 388. The Court observed that in that case “foreseeability

is not only a component of the proximate cause element of negligence, it is also

a component of the duty element of negligence as well” and that “whether a

duty exists is a question of law for the court to decide.” Id. at 389. The Court

held:

In sum, because foreseeability is—in this particular negligence
action—a component of duty, and because whether a duty exists
is a question of law for the court to decide, the court must of
necessity determine whether the criminal act at issue here was
foreseeable. This is not a “redetermination” of the duty a
landowner owes its invitees. Rather, the focus is on the point
and manner in which we evaluate whether foreseeability does or
does not exist. See Bartolini, 799 N.E.2d at 1053. And that point
initially rests with the trial court as gatekeeper.

Id.

[19] The Court observed:

[I]n Goldsberry v. Grubbs, 672 N.E.2d 475 (Ind. Ct. App. 1996),
[trans. denied,] the Court of Appeals discussed the Webb three-part
balancing test,[ 6] noted its inconsistent application and results—
even where the facts were very similar—and determined the
reason for this anomaly was the failure to distinguish between

6
In Webb, the Court addressed whether a doctor owed a duty to a third party injured by the doctor’s patient
and held that in order to determine whether a duty exists a three-part balancing test is employed: (1) the
relationship of the parties; (2) the foreseeability of harm; and (3) public policy concerns. 575 N.E.2d at 995-
997.

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 foreseeability in the context of duty and foreseeability in the
context of proximate cause. The court explained:

[T]he foreseeability component of the duty analysis must
be something different than the foreseeability component
of proximate cause. More precisely, it must be a lesser
inquiry; if it was the same or a higher inquiry it would
eviscerate the proximate cause element of negligence
altogether. If one were required to meet the same or a
higher burden of proving foreseeability with respect to
duty, then it would be unnecessary to prove foreseeability
a second time with respect to proximate cause.
Additionally, proximate cause is normally a factual
question for the jury, while duty is usually a legal question
for the court. As a result, the foreseeability component of
proximate cause requires an evaluation of the facts of the
actual occurrence, while the foreseeability component of
duty requires a more general analysis of the broad type of
plaintiff and harm involved, without regard to the facts of
the actual occurrence.

Id. at 390 (quoting Goldsberry, 672 N.E.2d at 479 (internal citations omitted)).

[20] The Court held that, “upon further reflection, we are of the view that Goldsberry

provides the more accurate framework for assessing foreseeability in the duty

context,” adopted it, and expressly disapproved of the contrary approach set

forth in Webb. Id. at 391. The Court noted that in doing so it joined a number

of jurisdictions that distinguish between the analytical framework used to

determine foreseeability in the context of duty and that used to determine

foreseeability in the context of proximate cause. Id. The Court held:

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 [A]ddressing the distinction, the Supreme Court of Appeals of
West Virginia captures the underlying rationale as follows:

[A] court’s task—in determining “duty”—is not to decide
whether a particular plaintiff’s injury was reasonably
foreseeable in light of a particular defendant’s conduct, but
rather to evaluate more generally whether the category of
negligent conduct at issue is sufficiently likely to result in
the kind of harm experienced that liability may
appropriately be imposed on the negligent party. The jury,
by contrast, considers “foreseeability” . . . [in] more
focused, fact-specific settings. . . .

Strahin v. Cleavenger, 216 W.Va. 175, 603 S.E.2d 197, 207 (2004)
(alterations and emphasis in original (quotation omitted)). This
rationale is consistent with the observation in Goldsberry that “the
foreseeability component of proximate cause requires an
evaluation of the facts of the actual occurrence, while the
foreseeability component of duty requires a more general analysis
of the broad type of plaintiff and harm involved, without regard
to the facts of the actual occurrence.” 672 N.E.2d at 479.

But because almost any outcome is possible and can be foreseen,
the mere fact that a particular outcome is “sufficiently likely” is
not enough to give rise to a duty. Instead, for 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.” Satterfield [v. Breeding Insulation Co., 266
S.W.3d 347, 367 (Tenn. 2008)].

So, where does this leave the “totality of the circumstances” tests
we endorsed in Delta Tau Delta [v. Johnson,] which requires an
examination of “all of the circumstances surrounding an event,
including the nature, condition, and location of the land, as well

Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016 Page 16 of 23
 as prior similar incidents”? 712 N.E.2d [968, 972 (Ind. 1999)].
With its broad applicability and higher burden of proof this test is
certainly appropriate as a useful guide to the fact-finder in
determining foreseeability in the context of proximate cause.
But, precisely because this test focuses on the particular facts of
the case rather than a broader inquiry, it is ill-suited to determine
foreseeability in the context of duty.

Id. at 391-392.

[21] The Court then turned to the merits of the case with the foregoing framework in

mind and held:

The broad type of plaintiff here is a patron of a bar and the harm
is the probability or likelihood of a criminal attack, namely: a
shooting inside a bar. But even engaging in a “lesser inquiry” we
conclude that although bars can often set the stage for rowdy
behavior, we do not believe that bar owners routinely
contemplate that one bar patron might suddenly shoot another.
To be sure, we doubt there exists a neighborhood anywhere in
this State which is entirely crime-free. Thus, in the broadest
sense, all crimes anywhere are “foreseeable.” But to impose a
blanket duty on proprietors to afford protection to their patrons
would make proprietors insurers of their patrons’ safety which is
contrary to the public policy of this state. See Delta Tau Delta, 712
N.E.2d at 971. Further such a blanket duty would abandon the
notion of liability based on negligence and enter the realm of
strict liability in tort which “assumes no negligence of the actor,
but chooses to impose liability anyway.” Cook v. Whitsell–
Sherman, 796 N.E.2d 271, 276 (Ind. 2003). We decline to impose
such liability here. In sum we hold that a shooting inside a
neighborhood bar is not foreseeable as a matter of law.

Id. at 393-394 (footnote omitted).

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[22] In its conclusion, the Court reiterated:

In a negligence action, whether a duty exists is a question of law
for the court to decide. And in those instances where
foreseeability is an element of duty, this necessarily means the
court must determine the question of foreseeability as a matter of
law. When doing so the court is tasked with engaging in a
general analysis of the broad type of plaintiff and harm involved
without regard to the facts of the actual occurrence.

Id. at 394.

[23] With Goodwin in mind, we turn to the Appellants’ reliance on King. In that

case, a school district entered into a contract with Northeast Security for

security services at North Central High School. 790 N.E.2d at 477. The

contract provided that the deputies were to perform the following duties:

Provide exterior patrols at checkpoints for all North Central High
School buildings by the means of three vehicle patrols occupied
by three Marion County Special Deputies provided and
employed by Northeast Security. These officers are trained
personnel and understand the procedures of patrol. They will
also be responsible for insuring all personnel that enter the
premise[s] are possessing the proper identification. They are to
be observant of any criminal activity which may occur in the
parking lots and to the exterior of the building.

Id. Nicholas King, a student, sued the school district and Northeast Security

after being injured by others while waiting for a ride home. Id. A panel of this

court affirmed summary judgment in favor of Northeast Security. Id. at 478.

[24] On transfer, the Indiana Supreme Court held:

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 Status as a third party beneficiary has been held sufficient to
create tort liability to the beneficiary on the part of a party to the
contract. Emmons [v. Brown, 600 N.E.2d 133, 134 (Ind. Ct. App.
1992)]. We think, however, that it is not necessary that the
plaintiff be a third party beneficiary in order to assert a claim.
King’s claim is a tort claim for simple negligence. Whether or
not King and his fellow students acquired rights under the
agreement under contract law, we think it is clear that the
purpose of the agreement was to provide security services for the
school. We think it equally plain that the agreement was to
protect all members of the public, including students, who were
properly on the premises. Under the contract, Northeast had an
obligation to the District. We see no reason why the contract
requiring Northeast to “[p]rovide exterior patrols[,] insur[e] all
personnel that enter the premise[s] are possessing the proper
identification, [and] be observant of any criminal activity which
may occur in the parking lots” would not include providing
safety for students. R. at 53.

The students, including King, are plainly among the persons who
are properly on the premises and entitled to expect reasonable
steps to be taken for their safety. The District in turn has an
obligation to its students and others to take reasonable steps for
their safety. We see no reason why negligent failure to carry out
these assumed responsibilities should not give rise to liability to
students who are injured as a result. There may be significant
issues as to negligence and causation that remain in this case.
But at this summary judgment stage, there is nothing inherent to
the students’ status or relationship to the District or Northeast
that prevents recovery. Nor is the class of persons who are
properly on school premises so remote that liability to them
should be precluded as a matter of law for injuries resulting from
negligent performance of assumed responsibilities.

Id. at 485-486.

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[25] The Indiana Supreme Court also held that “those specifically engaged in

providing services undertaken for security services may well be found to have a

higher standard of care than the public at large, whether or not they are on

notice of specific activity at the site.” Id. at 487 (citing Rosh v. Cave Imaging Sys.,

Inc., 26 Cal. App. 4th 1225, 32 Cal. Rptr. 2d 136, 139 (1994) (establishing the

requisite standard of care of a security guard company through expert

testimony), reh’g denied, review denied; 7 Erickson v. Curtis Inv. Co., 447 N.W.2d

165, 170-171 (Minn. 1989) (noting that a security firm hired by a commercial

parking ramp owner has a “duty to use that degree of care which a reasonably

prudent professional security firm would use”)).

[26] We do not find King determinative of the outcome in this case. We cannot say

that King, which involved a security firm’s duty to protect a student on school

grounds from a physical assault and a contract requiring the security firm to be

observant of any criminal activity, requires that we find that a duty exists in the

present case. The duty of Northeast in King to prevent injuries to students from

other students is fundamentally different from a duty a security firm could have

with respect to a stage collapse. The agreement here called for security

personnel at various times and locations, none of which suggest ESG’s

agreement contemplated a duty with respect to a stage collapse. The agreement

here did not contain any provision which could place protecting patrons from a

7
The court in Rosh addressed a situation in which a manager terminated an employee, and the employee
returned to the premises and shot the manager. 26 Cal. App. 4th at 1229.

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 stage collapse caused by wind within ESG’s scope of work. We also note that

ESG was not involved in the decision making process regarding the weather

front. King is clearly distinguishable. See Star Wealth Mgmt. Co. v. Brown, 801

N.E.2d 768, 774-775 (Ind. Ct. App. 2004) (holding that King did not require

reversal of summary judgment granted to Lloyd Brown d/b/a A.S.A.P.

Investigation and Security Services and distinguishing King in part by stating

“[i]n its discussion of the negligence claims against the district and against

Northeast, our supreme [court] began by citing the long-standing recognition

that school authorities owe a duty to exercise reasonable care and supervision

for the safety of the children under their control,” and that the King Court’s

“subsequent discussion of Northeast’s duty was arguably linked to the duty of

the school with which it had contracted”).

[27] Here, foreseeability plays a role in the analysis of duty. Indiana has not

addressed whether a security company has a duty related to stage collapses or

weather. At least one case outside Indiana has addressed whether a security

provider has a duty to warn regarding weather and specifically high winds, and

held that it does not. See Stabnick v. Williams Patrol Serv., 390 N.W.2d 657, 658-

659 (Mich. Ct. App. 1986) (affirming the grant of summary judgment to a

security provider and holding that “[t]he key here is whether the gusty wind

was a foreseeable danger about which the defendant had a duty to warn the

plaintiff,” and that “[w]ind is a natural unpredictable condition. Whether wind

Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016 Page 21 of 23
 becomes dangerous is unpredictable and unforeseeable. Thus, there can be no

duty to warn the plaintiff of some unforeseeable danger.”), appeal denied. 8

[28] The Appellants cite Erickson v. Curtis Inv. Co., 447 N.W.2d 165 (Minn. 1989),

and Vanesko v. Marina Dist. Dev. Co., LLC, 38 F. Supp. 3d 535 (E.D. Pa. 2014),

for the idea that a security firm has a duty to exercise due care. These cases do

not specifically address the issue of a duty related to stage collapses or weather.

See Erickson, 447 N.W.2d at 166 (addressing whether an operator of a

commercial parking ramp owes a duty to a ramp customer to protect her from a

trespassing rapist and holding that whether a duty is imposed depends on the

foreseeable risk involved); Vanesko, 38 F. Supp. 3d at 537 (addressing injuries of

a concertgoer that occurred when something or someone struck him from

behind and holding that it was reasonable, fair, and in the interest of public

8
Some courts have addressed the duty to warn of weather generally. See Caldwell v. Let the Good Times Roll
Festival, 717 So.2d 1263, 1273 (La. Ct. App. 1998) (“Certainly, the fact of the extremely strong and turbulent
winds accompanying the storm, combined with the fact that those attending the public festival were sheltered
underneath a tent which did not withstand the power of the winds, combined to create some danger to the
public crowd. Likewise, those who gratuitously or for remuneration produce a public festival owe some duty
to the public to provide, as is urged here, some ‘safety and security,’ but that duty, being owed to the public
by all who serve the public (fire and police personnel), may not extend to protect the public against all
possible risks of injury, especially when the injury stems from an extraordinary, rare and reasonably
unexpected weather occurrence or circumstance.”), writ denied; Dykema v. Gus Macker Enterprises, Inc., 492
N.W.2d 472, 475 (Mich. Ct. App. 1992) (addressing a situation in which a plaintiff, while running for shelter,
was struck by a falling tree limb and paralyzed at a basketball tournament, affirming an order granting
defendants’ motion for summary disposition, and holding that “[e]ven if plaintiff had succeeded in
establishing that a special relationship existed between himself and defendant, we are unable to find
precedent for imposing a duty upon an organizer of an outdoor event such as this basketball tournament to
warn a spectator of approaching severe weather,” that “such a duty has not been recognized in Michigan,
and, apparently, no other jurisdiction has constructed one,” and observing that the Tennessee Supreme Court
recently held that a state-owned golf course does not owe, as part of its duty of reasonable care, a duty to
warn its patrons of the dangers of lightning), appeal denied.

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 policy to impose a duty on a security company to protect a concertgoer from

foreseeable injury). Thus, we do not find these cases instructive.

[29] With the Goodwin framework in mind, we observe that the broad type of

plaintiff here is a patron of an outdoor concert, and the harm is the probability

or likelihood of a stage collapse caused by a strong wind. We do not believe

that security firms routinely contemplate that a stage might collapse. Indeed,

Dr. Randall Davidson, the Appellants’ expert, testified that it would be

reasonable for a security company like ESG at an event like this to expect that

the stage was properly constructed and inspected and that ESG did not have

any knowledge or reason to believe that the stage could not withstand an

Indiana storm. In sum, we hold that a stage collapse due to high wind is not

foreseeable as a matter of law. Accordingly, we cannot say that ESG had a

duty relating to the stage collapse. 9

Conclusion

[30] For the foregoing reasons, we affirm the trial court’s grant of summary

judgment in favor of ESG.

[31] Affirmed.

Robb, J., and Mathias, J., concur.

9
Appellants do not argue that ESG breached any duty following the stage collapse.

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