                                                                  FILED
                                                             Mar 07 2018, 9:26 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Richard A. Cook                                           Lisa M. Dillman
Bryan C. Tisch                                            Thomas C. Hays
Yosha Cook & Tisch                                        Barath S. Raman
Indianapolis, Indiana                                     Lewis Wagner, LLP
                                                          Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE
INDIANA TRIAL LAWYERS                                     ATTORNEYS FOR AMICUS CURIAE
ASSOCIATION                                               DEFENSE TRIAL COUNSEL OF
Gabriel A. Hawkins                                        INDIANA
Cohen & Malad, LLP                                        Lucy R. Dollens
Indianapolis, Indiana                                     Jacob V. Bradley
                                                          Quarles & Brady LLP
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Amber Hamilton,                                           March 7, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          49A02-1704-CT-776
        v.                                                Appeal from the Marion Superior
                                                          Court
Steak ’n Shake Operations Inc.,                           The Honorable Heather A. Welch,
Appellee-Defendant                                        Judge
                                                          Trial Court Cause No.
                                                          49D01-1308-CT-30340



Altice, Judge.

Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018               Page 1 of 17
                                                Case Summary


[1]   Amber Hamilton was shot in the face during an altercation that transpired after

      a group of individuals entered the Steak ’n Shake restaurant where she was

      eating and verbally threatened and taunted her and her brother over a period of

      approximately thirty minutes. Steak ’n Shake employees witnessed the

      escalation of threats and verbal abuse, but did not take action until it seemed

      that a physical altercation was imminent, at which point the acting manager

      told the group they needed to leave the premises. Moments later, the

      altercation turned physical inside the Steak ’n Shake, at which time, the Steak

      ’n Shake employees summoned help. Hamilton was shot less than a minute

      later.


[2]   Hamilton filed a complaint alleging that Steak ’n Shake was negligent for failing

      to protect her from the criminal act of another. Steak ’n Shake filed a Motion

      for Summary Judgment, which was initially denied by the trial court. A little

      more than a year later, Steak ’n Shake filed a motion asking the trial court to

      reconsider its denial of summary judgment in light of the recent pronouncement

      by the Indiana Supreme Court with regard to the determination of duty. After

      considering the Supreme Court’s decisions in Goodwin v. Yeakle’s Sports Bar &

      Grill, Inc., 62 N.E.3d 384 (Ind. 2016) and Rogers v. Martin, 63 N.E.3d 316 (Ind.

      2016), the trial court granted summary judgment in favor of Steak ’n Shake,

      concluding that Steak ’n Shake did not owe Hamilton a duty to protect her from

      another’s unforeseeable criminal act. Hamilton appeals, arguing that the trial

      court’s determination that Steak ’n Shake did not owe her a duty is erroneous.

      Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018   Page 2 of 17
[3]   We reverse and remand.


                                       Facts & Procedural History1


[4]   The facts most favorable to Hamilton, the non-movant, follow. On or about

      December 21, 2012, Hamilton, her brother Dustyn, and two friends were

      patrons at an Indianapolis Steak ’n Shake. A server and a cook, who was also

      acting as the manager, were the only other persons present. Shortly after

      Hamilton’s group ordered their food, another group of individuals, including

      Ricky Jackson, entered the Steak ’n Shake and sat about ten to twenty feet

      away. Jackson began to threaten and verbally abuse Hamilton and Dustyn on

      account of Dustyn’s sexual orientation. Jackson also attempted to goad Dustyn

      into fighting him and even blocked the door so no one could leave. At one

      point, Jackson went outside and continued taunting Hamilton and Dustyn by

      repeatedly pounding on the windows and yelling for Dustyn to come outside

      and fight him.


[5]   The tension between the two groups escalated over the course of approximately

      thirty minutes. The server was aware of the verbal exchange and the nature of

      the insults and informed the cook/manager of the confrontation between the

      groups. Neither of the Steak ’n Shake employees took any action to intervene




      1
       We held oral argument in this matter on February 15, 2018, in Indianapolis, Indiana. We commend
      counsel for their excellent written and oral advocacy.

      Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018                    Page 3 of 17
      while the groups were seated at their tables, nor did they contact Steak ’n

      Shake’s security agency or the police to defuse the situation.


[6]   The confrontation continued to intensify as the two groups made their way

      toward the cash register. The server and the cook stood behind the counter

      observing the heated exchange between the groups. Only after it seemed as

      though a physical altercation was imminent did the cook/manager address the

      groups, saying several times, “Hey, you guys got to stop it and leave.”

      Appellant’s Appendix Vol. 4 at 54. None of the individuals heeded the order and

      moments later, a physical altercation ensued between Jackson and Dustyn

      inside the Steak ’n Shake near the cash register. Hamilton inserted herself into

      the fray to help her brother and in response to Jackson repeatedly calling her

      names. After Hamilton hit Jackson in the face, Jackson pulled out a gun and

      shot Hamilton point blank in the face, causing Hamilton to suffer serious

      injuries. After the physical confrontation started, the server called for help, and

      after the gun was fired, the cook ran across the street to a nearby business to

      summon help.


[7]   On August 8, 2013, Hamilton filed a complaint alleging negligence against

      Steak ’n Shake for failing “to take affirmative action to control the wrongful

      acts of third parties,” which ultimately resulted in harm to her, an invitee of the

      restaurant. Appellant’s Appendix Vol. 2 at 52. After a period of discovery, Steak

      ’n Shake filed a motion for summary judgment along with a brief in support

      thereof and designated evidence on October 16, 2014. Hamilton filed a

      response in opposition to summary judgment and her designation of evidence

      Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018   Page 4 of 17
      on May 29, 2015. Steak ’n Shake filed a motion to strike Hamilton’s designated

      evidence in opposition to summary judgment along with a reply in support of

      summary judgment. On June 22, 2015, the trial court held a hearing on the

      pending summary judgment motion. On September 24, 2015, the trial court

      entered an order denying Steak ’n Shake’s motion for summary judgment.2


[8]   On November 17, 2016, Steak ’n Shake filed a Motion to Reconsider the trial

      court’s order denying its motion for summary judgment in light of the Supreme

      Court’s recent decision in Goodwin. On January 26, 2017, Hamilton filed a

      response directing the trial court’s attention to Rogers, a companion case handed

      down the same day as Goodwin. 3 Hamilton also filed a supplemental

      designation of evidence. On January 31, 2017, Steak ’n Shake filed a reply in

      support of its motion to reconsider and a motion to strike Hamilton’s

      supplemental designation of evidence. At a February 1, 2017 hearing, counsel

      for both parties presented oral argument on the motion to reconsider and the

      motion to strike. On March 14, 2017, the trial court granted Steak ’n Shake’s

      motion to reconsider and thereafter entered summary judgment in favor of

      Steak ’n Shake based on its determination that Steak ’n Shake did not owe a




      2
        The trial court also granted Steak ’n Shake’s motion to strike the narrative that accompanied the
      surveillance video of the altercation, the depositions of several witnesses that were obtained for purposes of
      the criminal proceedings against Jackson, an email from Steak ’n Shake’s security company to Steak ’n
      Shake, and a witness’s statement to police.
      3
          Both cases were handed down on October 26, 2016.


      Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018                             Page 5 of 17
       duty to Hamilton.4 Hamilton filed her Notice of Appeal on April 13, 2017.

       Additional facts will be provided as necessary.


                                             Discussion & Decision


[9]    We review a grant of summary judgment de novo, in the same way as the trial

       court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). We will affirm such

       a ruling only if, after drawing all reasonable inferences in favor of the non-

       moving party, the designated evidence shows that “there is no genuine issue as

       to any material fact and . . . the moving party is entitled to judgment as a matter

       of law. Id. (quoting Ind. Trial Rule 56(C)). “A fact is ‘material’ if its resolution

       would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is

       required to resolve the parties’ differing accounts of the truth, or if the

       undisputed material facts support conflicting reasonable inferences.” Id.

       (quoting Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)). When the trial

       court has granted summary judgment, the nonmoving party has the burden on

       appeal of persuading us that the grant of summary judgment was in error.

       Adams v. ArvinMeritor, Inc., 48 N.E.3d 1, 9 (Ind. Ct. App. 2015).


[10]   The parties agree that recent decisions from our Supreme Court—Goodwin and

       Rogers, supra—set forth the analytical framework to be followed by a court in




       4
        The trial court also granted Steak ‘n Shake’s motion to strike Hamilton’s supplemental designated evidence.
       Hamilton does not challenge this ruling on appeal.

       Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018                         Page 6 of 17
       evaluating foreseeability as it relates to the duty a landowner owes to an invitee

       in negligence actions. This framework provides that


               foreseeability is a general threshold determination that involves
               an evaluation of (1) the broad type of plaintiff and (2) the broad
               type of harm. In other words, this foreseeability analysis should
               focus 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—without addressing the specific facts of the
               occurrence.


       Rogers, 63 N.E.3d at 325; see also Goodwin, 62 N.E.3d at 390. To give some

       context, we examine the Supreme Court’s application of this framework to the

       facts in Goodwin and Rogers.


[11]   In Goodwin, a patron at a neighborhood bar overheard what he believed was a

       derogatory comment about his wife. That patron produced a handgun and

       fired it, striking the offending customer as well as two other customers sitting at

       a separate table. There was no prelude to the attack, nor was there any

       involvement of the bar’s staff preceding the verbal exchange and shooting. One

       of the injured patrons brought a complaint for damages against the bar alleging

       negligence in failing to provide security for its patrons. The bar moved for

       summary judgment, claiming that the shooting was not foreseeable and that it

       had no duty to anticipate and take steps to prevent the criminal act. The trial

       court granted summary judgment in favor of the bar. On appeal, the Court of

       Appeals, noting confusion in the law with regard to how a court determines

       whether a duty exists in the context of a negligence claim, reversed the trial


       Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018      Page 7 of 17
       court. See Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 28 N.E.3d 310, 311 (Ind.

       Ct. App. 2015), trans. granted. The Supreme Court granted transfer and

       “[e]ndeavor[ed] to clarify the confusion.” Goodwin, 62 N.E.3d at 386.


[12]   While foreseeability is most often a component of proximate causation and thus

       a question for the trier of fact, our Supreme Court noted that in some instances,

       including the matter before it, foreseeability is also a component of the duty

       element of negligence. Id. at 389 (noting that “in the case before us”

       foreseeability is a component of duty). This stems from the well-settled law that

       a proprietor owes its invitees a duty “to take reasonable precautions to protect

       invitees from foreseeable criminal acts.” Id. at 388 (emphasis in original). In

       support, the Court cited its prior statement in Paragon Family Restaurant v.

       Bartolini, 799 N.E.2d 1048, 1053 (Ind. 2003), that “[t]here is no doubt ... that

       reasonable foreseeability is an element of a landowner or business proprietor’s

       duty of reasonable care. The issue is merely at what point and in what manner

       to evaluate the evidence regarding foreseeability.” Goodwin, 62 N.E.3d at 388.

       The Court reiterated:


               [i]n 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.


       Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018   Page 8 of 17
       Goodwin, 62 N.E.3d at 389. In other words, the trial court’s job in determining

       whether a duty exists is to evaluate more generally whether the category of

       negligent conduct at issue is sufficiently likely to result in the kind of harm

       experienced such that liability may appropriately be imposed on the negligent

       party. Id. at 390.


[13]   The Court then addressed the manner in which courts must undertake the

       determination of whether a duty is owed. The Court first considered and then

       rejected the totality of the circumstances test used in prior cases, finding such

       test to be “inappropriate when analyzing foreseeability in the context of duty.” 5

       Id. at 389. The Court then adopted the analytical framework for assessing

       foreseeability in the duty context set forth in Goldsberry v. Grubbs, 672 N.E.2d

       475, 479 (Ind. Ct. App. 1996), in which it was noted 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.” Goodwin, 62 N.E.3d at 390. In explaining

       further, the Court noted that


                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



       5
         In rejecting the totality of the circumstances test, the Court abrogated L.W. v. W. Golf Ass’n, 712 N.E.2d 983
       (Ind. 1999), Vernon v. Kroger Co., 712 N.E.2d 976 (Ind. 1999), and Delta Tau Delta v. Johnson, 712 N.E.2d 968
       (Ind. 1999), to the extent they applied such test in determining whether a duty was owed under the
       circumstances of each case.

       Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018                             Page 9 of 17
               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.”


       Id. at 392 (quoting Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 367

       (Tenn. 2008)).


[14]   Applying this framework to the facts of the case, the Goodwin Court noted that

       the broad type of plaintiff was a patron of a bar and that the harm was the

       probability or likelihood of a criminal attack, i.e., a shooting inside the bar.

       The Court stated its belief that bar owners do not “routinely contemplate that

       one bar patron might suddenly shoot another” and that “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.” Id. at 394. The Court held that “a shooting inside a neighborhood bar is

       not foreseeable as a matter of law.” Id. The Court therefore affirmed the trial

       court’s grant of summary judgment in favor of the bar.


[15]   In the companion case of Rogers v. Martin, the Court applied this same

       framework to a different factual scenario. In Rogers, a homeowner hosted a

       house party and, unbeknownst to the homeowner, in the later hours thereof, the

       homeowner’s boyfriend got into a fist fight with two guests. The boyfriend got

       the better of the fight. The homeowner subsequently observed one of the guests

       lying motionless on the basement floor. Rather than seek help, the homeowner

       went to bed. The guest was found dead the following morning. The decedent’s


       Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018   Page 10 of 17
       estate sued the homeowner alleging, in part, that she was negligent because she

       failed to render aid to her guest after she observed him lying on her basement

       floor.


[16]   The Court began by recognizing that a landowner must exercise reasonable care

       to protect social guests. Rogers, 63 N.E.3d at 321-22. This “duty to protect”

       extends not only to harm caused by a condition of the land, but also to activities

       conducted on the land. Id. at 322-23. For activities occurring on the land,

       “foreseeability is the critical inquiry in determining whether the landowner’s

       duty of reasonable care extends to the particular circumstances.” Id. at 323.


[17]   Given the facts of the case, the Court noted that the factual scenario gave rise to

       “two particular situations,” the first being whether the homeowner owed a duty

       to take reasonable precautions to protect her guest from the harm that occurred

       during the fist fight and the second being whether the homeowner owed a duty

       to protect her guest from an exacerbation of injuries after finding him

       unconscious on her basement floor. Id. at 326. With regard to the first

       situation, the Court defined the inquiry as whether a duty should be imposed on

       a homeowner to take precautions “to prevent a co-host from fighting with and

       injuring a house-party guest.” Id. The Court found that it was “not reasonably

       foreseeable for a homeowner to expect this general harm to befall a house-party

       guest” and that “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. Therefore, the Court held that the homeowner



       Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018   Page 11 of 17
       was not liable as a matter of law for any failure on her part to protect her guest

       from an unforeseeable fistfight. Id. at 320.


[18]   With regard to the second situation, the Court found that “[h]omeowners

       should reasonably expect that a house-party guest who is injured on the

       premises could suffer from an exacerbation of those injuries.” Id. at 327. Thus,

       the Court held that summary judgment was improper because, although the

       homeowner did not have a duty to anticipate the fight, she had a duty to render

       assistance once she observed her guest lying motionless on the floor. Id. at 327.

       The Court believed that reasonable persons would recognize and agree that a

       homeowner had a duty under the circumstances. Id.


[19]   As was the issue in Goodwin and Rogers, the question presented herein is

       whether a duty exists. If a duty exists, summary judgment was improperly

       granted; if a duty does not exist, summary judgment was properly granted.

       Applying the Goodwin/Rogers framework, the parties reach contrary conclusions

       as to whether Steak ’n Shake owed a duty to Hamilton.


[20]   We begin by noting that Hamilton’s negligence claim is based on premises

       liability. The law is well established that a person entering upon the land of

       another comes upon the land as an invitee, a licensee, or a trespasser. Christmas

       v. Kindred Nursing Ctrs. Ltd. P’ship, 952 N.E.2d 872, 878 (Ind. Ct. App. 2011).

       Thus, the first step in resolving a premises liability case is to determine the

       plaintiff’s status. Id. The status then defines the duty owed from the landowner

       to the visitor. Id. Here, there is no dispute that Hamilton was an invitee.


       Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018   Page 12 of 17
[21]   As the Rogers Court noted,


               [u]nder Indiana premises liability law, the duty a landowner
               owes to an invitee is well established: a landowner must exercise
               reasonable care for the invitee’s protection while the invitee is on
               the premises. Because this general duty has been articulated, the
               Court need not judicially determine the existence of a separate
               duty today. Rather, we look to foreseeability as the critical
               inquiry in deciding whether the landowner-invitee “duty to
               protect” extends to a particular scenario.


       63 N.E.3d at 320. To be sure, where the harm is not foreseeable, to impose a

       duty on the proprietor/landowner would effectively impose strict liability and

       render the proprietor/landowner an insurer of patron/invitee safety. As our

       Supreme Court noted, this result is contrary to the public policy of this State.

       On the other hand, a proprietor/landowner should not be afforded absolute

       immunity from harm that occurs while on their premises. The element of

       foreseeability is therefore part and parcel of defining the broad type of plaintiff

       and the broad type of harm. In this regard, the Goodwin/Rogers framework is

       consistent with the RESTATEMENT (SECOND) OF TORTS § 344 cmt. f,

       which provides that “[s]ince the possessor is not an insurer of the visitor’s

       safety, he is ordinarily under no duty to exercise any care until he knows or has

       reason to know that the acts of the third person are occurring, or are about to

       occur.” (Emphasis supplied).


[22]   In Goodwin, the Court held that there was no duty to anticipate injury arising

       from the conduct of a third party because the conduct was not foreseeable. This

       was the end of the story in Goodwin because the harm resulted after a patron

       Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018   Page 13 of 17
       unexpectedly and without warning fired a gun striking several patrons.

       Likewise, in Rogers, a fist fight between the landowner’s boyfriend and a house-

       party guest was not predictable.


[23]   In Rogers, however, the Court identified a second situation presented by the

       facts that required an independent determination as to whether the landowner

       owed a duty to her invitee. The Court determined once the landowner

       observed her injured guest lying motionless on the floor, the landowner had a

       duty to render assistance. The landowner’s knowledge of the guest’s injury was

       crucial to assessing foreseeability, and in turn, to the determination that the

       landowner owed a duty. The Court noted that a landowner “should reasonably

       expect that a house-party guest who is injured on the premises could suffer from

       an exacerbation of those injuries.” Id. at 327.


[24]   Here, Hamilton asserts that Steak ’n Shake was fully aware of the discord

       between the two groups and the escalating tension that intensified over the

       course of approximately thirty minutes. Indeed, the thirty-minute altercation

       involved not only verbal threats and taunts, but also efforts to incite a physical

       confrontation, blocking of the entrance/exit, and pounding on the windows

       from outside of the restaurant. Under these circumstances, Hamilton contends

       that the likelihood of harm to her as an invitee was high and that the potential

       for harm was “serious enough to induce a reasonable person to take precautions

       to avoid it.” Appellant’s Brief at 20 (citing Goodwin, 62 N.E.3d at 392). Thus,

       Hamilton argues that Steak ’n Shake had a duty to take action to protect her

       from Jackson’s conduct.

       Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018   Page 14 of 17
[25]   Steak ’n Shake, on the other hand, argues that the trial court properly

       determined that, without regard for the specific facts of the case, the broad type

       of plaintiff was a patron in a restaurant and the broad type of harm was the

       criminal act of a third party. Thus, as in Goodwin, where the Court found that

       the bar did not owe a duty to protect a bar patron from an unforeseeable

       criminal act of another, Steak ’n Shake argues that it did not owe a duty to

       Hamilton to protect her from Jackson’s unforeseeable criminal act. Steak ’n

       Shake emphasizes that if a shooting in a bar is not foreseeable as a matter of

       law, then a shooting inside its restaurant is not foreseeable.


[26]   We find Steak ’n Shake’s position too narrow. While in Goodwin the Court

       declared that “a shooting inside a neighborhood bar is not foreseeable as a

       matter of law,” such statement followed the Court’s conclusion that bar owners

       do not “routinely contemplate that one bar patron might suddenly shoot

       another.” Goodwin, 62 N.E.3d at 394 (emphasis supplied). The bar did not

       know or have reason to know that the third party would act in such manner.

       Indeed, the conduct of the third party was sudden and without warning. The

       Court reached the same conclusion with regard to the fist fight that occurred in

       Rogers, finding that it was an unpredictable situation and thus, it was not

       reasonably foreseeable for the landowner to expect that type of harm to befall a

       guest. In both instances, foreseeability was key to the Court’s analysis, and

       foreseeability hinged on what the landowner knew or had reason to know as it




       Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018   Page 15 of 17
       concerned the injured party. In Steak ‘n Shake’s application of the

       Goodwin/Rogers framework, it omits the element of foreseeability. 6


[27]   As argued by Hamilton, we find that the factual scenario presented is akin to

       the second situation identified by the Supreme Court in Rogers, wherein the

       Court redefined the broad type of plaintiff and harm in terms of the landowner’s

       knowledge that a house-party guest had been injured. The Rogers Court

       concluded that the landowner’s knowledge that the house-party guest had been

       injured gave rise to a duty to take precautions to protect the injured guest from

       exacerbation of those injuries. Similarly, here, Steak ’n Shake’s knowledge of

       the events taking place on its premises gave rise to a duty to take reasonable

       steps to provide for patron safety.


[28]   Here, we define the broad type of plaintiff and the broad type of harm in terms

       of foreseeability. Hence, the broad type of plaintiff is a restaurant patron who

       has been subjected to escalating threats and taunts and the broad type of harm

       is injury resulting after the encounter culminated in physical violence. Steak ’n

       Shake did not have to know the precise harm that would befall its customer,

       only that there was some probability or likelihood that one of its patrons could

       be harmed and that the potential harm was serious enough that a reasonable

       person would have been induced to take precautions to avoid it. An escalating




       6
         To accept Steak 'n Shake’s identification of the broad type of plaintiff and broad type of harm would
       essentially extend immunity to proprietors for any harm to a patron resulting from acts of a third party,
       criminal or otherwise, regardless of the circumstances.

       Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018                           Page 16 of 17
       thirty-minute encounter that included verbal threats and taunts, blocking of the

       exit, and pounding on windows in an effort to incite a physical altercation, all

       of which Steak ’n Shake had knowledge, clearly created some likelihood that

       one of Steak ’n Shake’s patrons could be harmed and that the potential harm

       could be serious. Given the circumstances, we conclude that Steak ’n Shake

       had a duty as a proprietor to take reasonable steps to provide for patron safety

       once the raucous behavior came to its attention.7 This is not to say, however,

       that Steak ’n Shake was negligent, as issues of breach and proximate cause must

       still be determined by a trier of fact.


[29]   Having determined that under these facts Steak ’n Shake owed a duty to protect

       Hamilton, we necessarily conclude that the trial court erred in granting

       summary judgment in favor of Steak ’n Shake.


[30]   Judgment reversed and remanded.


       Baker, J. and Bailey, J., concur.




       7
         We recognize that there is a sliding scale in terms of what steps would be reasonable under a given set of
       circumstances. This, however, is part of the fact-finder’s determination of breach.

       Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018                          Page 17 of 17
