      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                              FILED
      regarded as precedent or cited before any                                      Jul 02 2020, 9:27 am
      court except for the purpose of establishing
                                                                                         CLERK
      the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                        Court of Appeals
      estoppel, or the law of the case.                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Richard J. LaSalvia                                       J. Thomas Vetne
      South Bend, Indiana                                       Jones Obenchain, LLP
                                                                South Bend, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Gail Westbrook,                                           July 2, 2020
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                19A-CT-2407
              v.                                                Appeal from the St. Joseph
                                                                Superior Court
      HN Food Plus, Inc.,                                       The Honorable David C.
      Appellee-Defendant.                                       Chapleau, Judge
                                                                Trial Court Cause No.
                                                                71D06-1705-CT-225



      Shepard, Senior Judge.


[1]   Gail Westbrook appeals the trial court’s finding that HN Food Plus could not

      have foreseen a random attack upon her by a third party and thus did not have

      a duty to protect her from such attack. We affirm the trial court.



      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020                           Page 1 of 8
                               Facts and Procedural History
[2]   The facts most favorable to Westbrook, the non-movant, follow. In June 2016,

      HN Food Plus was doing business in South Bend as a Citgo gas

      station/convenience store. Westbrook was riding in a friend’s car when they

      pulled into the Citgo lot, behind another car that was blocking further entrance.

      Westbrook got out of the car and asked the other driver to move his car

      forward. The man told Westbrook she could wait her turn and called her a

      “bitch.” Appellant’s App. Vol. 2, p. 24 (Westbrook Depo. p. 50).


[3]   Westbrook continued walking to the store entrance. As she was opening the

      door, the man came up behind her, grabbed her purse, and punched her several

      times in the face with a closed fist. Westbrook’s glasses were broken and she

      was knocked to the ground. Westbrook got up and ran toward her friend’s car,

      but she reached the attacker’s car first and attempted to get in. Before she could

      do so, the man caught up to her and punched her several more times. He then

      left in his car, with Westbrook and her friend in pursuit. They were unable to

      get the man’s license plate number. Westbrook went back to Citgo and asked

      the cashier to call the police.


[4]   Citgo had a surveillance system that captured the attack. The parties agree the

      video reflects that three minutes and thirteen seconds elapsed between

      Westbrook’s arrival at the store and the time her attacker fled. Just 64 seconds

      passed between the first set of punches at the door of the store and the time the

      man fled.


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020   Page 2 of 8
[5]   Based on these events, Westbrook sued HN Food Plus alleging negligence in

      failing “to provide adequate security or to provide for [her] safety.” Id. at 11

      (Complaint ¶ 4). HN Food Plus moved for summary judgment, which Judge

      Chapleau granted after a hearing.


                                                     Issue
[6]   The sole issue we decide is whether the trial court erred by entering judgment in

      favor of HN Food Plus on Westbrook’s negligence claim.


                                    Discussion and Decision
[7]   When reviewing the entry of summary judgment, our standard of review is

      similar to that of the trial court: whether there exists a genuine issue of material

      fact and whether the moving party is entitled to judgment as a matter of law.

      City of Indianapolis v. Cox, 20 N.E.3d 201 (Ind. Ct. App. 2014), trans. denied

      (2015). Appellate review of a summary judgment motion is limited to those

      materials specifically designated to the trial court. Sheehan Const. Co., Inc. v.

      Cont’l Cas. Co., 938 N.E.2d 685 (Ind. 2010). All facts and reasonable inferences

      drawn from those facts are construed in favor of the non-movant. Id. Further,

      the trial court’s grant of summary judgment is clothed with a presumption of

      validity, and the party who lost in the trial court has the burden of

      demonstrating that granting summary judgment was erroneous. Auto-Owners

      Ins. Co. v. Benko, 964 N.E.2d 886 (Ind. Ct. App. 2012), trans. denied.


[8]   Westbrook’s negligence claim against HN Food Plus is grounded in premises

      liability. To prevail on such a claim, a plaintiff must show: (1) a duty owed by
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020   Page 3 of 8
       the defendant to the plaintiff; (2) a breach of that duty; and (3) injury to the

       plaintiff resulting from the defendant’s breach. Miller v. Rosehill Hotels, LLC, 45

       N.E.3d 15 (Ind. Ct. App. 2015). Absent a duty, there can be no negligence or

       liability based upon a breach. Powell v. Stuber, 89 N.E.3d 430 (Ind. Ct. App.

       2017), trans. denied (2018). Under Indiana premises liability law, it is well

       established that a landowner’s duty to an invitee is one of reasonable care for

       the invitee’s protection while the invitee is on the premises. Rogers v. Martin, 63

       N.E.3d 316 (Ind. 2016). Whether a duty exists is a question of law for the

       courts to decide. Podemski v. Praxair, Inc., 87 N.E.3d 540 (Ind. Ct. App. 2017),

       trans. denied (2018).


[9]    Recent decisions by our Supreme Court in Goodwin v. Yeakle’s Sports Bar and

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

       decision in this case.


[10]   In Goodwin, a patron at a bar became angry when he overheard comments he

       believed to be about his wife. He produced a handgun and shot three people.

       Those three individuals sued the bar for negligence based on premises liability.

       On transfer, the Supreme Court affirmed summary judgment and the

       determination that the bar did not owe the patrons a duty to protect them. The

       Court recognized foreseeability as a component of the duty element of

       negligence and concluded that the assessment of foreseeability in this context is

       a determination to be made by the court utilizing an analysis of the “‘broad type

       of plaintiff and harm involved, without regard to the facts of the actual

       occurrence.’” Id. at 390. The Court reasoned that although bars can be host to

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020   Page 4 of 8
       rowdy behavior, bar owners would not routinely contemplate that one patron

       might suddenly shoot another. Id. at 393-94. Therefore, the Court declined to

       recognize a duty and held that a shooting inside a neighborhood bar is not

       foreseeable as a matter of law. Id. at 394.


[11]   On the same day it decided Goodwin, the Court decided Rogers. In that case, a

       homeowner and her boyfriend co-hosted a party. At the end of the night, the

       boyfriend engaged in a fistfight with two guests. Afterward, the homeowner

       found one of the guests lying motionless on her basement floor. He died a short

       time later. His estate sued the homeowner for negligence. On transfer, the

       Court applied the Goodwin foreseeability analysis and determined that the

       homeowner did not have a duty to protect the guest from being injured by a co-

       host of the party in an unforeseeable fistfight. The Court explained, “Although

       house parties can often set the stage for raucous behavior, we do not believe

       that hosts of parties routinely physically fight guests whom they have invited.

       Ultimately, it is not reasonably foreseeable for a homeowner to expect this

       general harm to befall a house-party guest.” Id. at 326.


[12]   The Court then addressed a second issue in Rogers: whether the homeowner

       had a duty to render aid to the guest when she found him lying unconscious on

       her basement floor and could thus be liable for negligence in responding to the

       incident. This question the Court answered in the affirmative. The Court

       reasoned that “[h]omeowners should reasonably expect that a house-party guest

       who is injured on the premises could suffer from an exacerbation of those



       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020   Page 5 of 8
       injuries” and for that reason, the homeowner owed the guest a duty to protect

       him from the exacerbation of an injury that occurred in her home. Id. at 327.


[13]   Bearing this framework in mind, we turn to the case at hand. Westbrook hangs

       her hat on the second duty discussed in Rogers—she argues that HN Food Plus

       “had a duty to intervene to prevent an exacerbation of [her] injury during the

       second assault.” Appellant’s Br. p. 8. For its part, HN Food Plus maintains it

       owed no duty to protect Westbrook from a sudden assault in its parking lot.


[14]   We first note, as we have many times, that a landowner has a duty to take

       reasonable precautions to protect invitees from foreseeable criminal attacks.

       Rogers, 63 N.E.3d 316. Whether this duty applies to HN Food Plus, as a matter

       of law, requires us to evaluate the broad type of plaintiff and harm involved,

       without considering the specific facts of the case. Thus, applying the Goodwin

       foreseeability analysis, we find the broad type of plaintiff is a gas

       station/convenience store patron, and the broad type of harm is a random

       attack by a third party. Although random attacks have become more prevalent

       in our society, they are not the norm. Therefore, it is not reasonably foreseeable

       for a business owner to expect this type of harm to occur to one of its

       customers. To find otherwise would be “to impose a blanket duty on

       proprietors to afford protection to their patrons” thus requiring proprietors to be

       “insurers of their patrons’ safety,” contrary to the public policy of this state.

       Goodwin, 62 N.E.3d at 394; see also Cavanaugh’s Sports Bar & Eatery, Ltd. v.

       Porterfield, 140 N.E.3d 837 (Ind. 2020) (determining that bar owed no duty to

       protect patron from sudden parking lot brawl when no evidence showed that

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020   Page 6 of 8
       bar knew fight was impending and reiterating objection to imposing

       comprehensive duty on proprietors to afford protection to their patrons from

       unpredictable criminal attacks). Accordingly, HN Food Plus had no duty to

       protect Westbrook from attack by an unknown third party.


[15]   We turn next to whether HN Food Plus owed a duty to Westbrook to protect

       her from an exacerbation of her injuries. Westbrook claims the HN Food Plus

       clerk saw the first attack and therefore had a duty to call the police or somehow

       intervene to protect her from the second assault where her injuries were

       exacerbated. Westbrook’s evidence in this regard is her deposition testimony

       that, when she approached the door just before the first assault, she looked at

       the clerk inside the store, and the clerk “looked at me just a little bit.”

       Appellant’s App. Vol. 2, p. 26 (Westbrook Depo. p. 59).


[16]   The duty in Rogers rested on the homeowner’s knowledge of an injury caused by

       the fight, and that knowledge generated her duty to protect against exacerbation

       of the injury. Here, there is no indication that the clerk, who was helping

       customers inside the store, actually saw the first attack which occurred outside

       the store, much less had knowledge that Westbrook was injured. Moreover, it

       is not reasonable that HN Food Plus would foresee that a second attack would

       occur seconds later further out in its parking lot, with the whole episode—from

       first punch to attacker fleeing—lasting 64 seconds. Thus, with no knowledge of

       Westbrook’s injuries, HN Food Plus had no duty to take action to prevent

       exacerbation of those injuries. See Rose v. Martin’s Super Markets LLC, 120

       N.E.3d 234 (Ind. Ct. App. 2019) (affirming summary judgment for grocery

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020   Page 7 of 8
       store and holding store had no duty to take action to prevent exacerbation of

       customer’s injuries where store had knowledge of active shooter but had no

       knowledge of customer’s injuries inflicted by shooter until it was too late to

       offer her assistance), trans. denied.


                                                 Conclusion
[17]   The trial court did not err in granting summary judgment to HN Food Plus.


[18]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020   Page 8 of 8
