                                                                            FILED
                                                                       Aug 15 2017, 5:26 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Robert M. Oakley                                           Keith A. Kinney
      Daniel K. Dilley                                           Duffin, Hash & Coates, LLP
      Dilley & Oakley, P.C.                                      Indianapolis, Indiana
      Carmel, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Crystal Jones,                                             August 15, 2017
      Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                                 03A04-1701-PL-233
              v.                                                 Appeal from the Bartholomew
                                                                 Circuit Court
      Jerry Wilson d/b/a Hoosier Pro                             The Honorable
      Wrestling,                                                 Stephen R. Heimann, Judge
      Appellee-Defendant.                                        Trial Court Cause No.
                                                                 03C01-1502-PL-531



      Kirsch, Judge.


[1]   Jerry Wilson d/b/a Hoosier Pro Wrestling (“Wilson” or “HPW”) promoted

      and presented a wrestling event, which was held in a building at the

      Bartholomew County Fairgrounds. Crystal Jones (“Jones”) attended the

      wrestling event, and as she walked through the parking lot to her car at night,

      she was assaulted by an unknown assailant. Jones brought a negligence action


      Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017                 Page 1 of 12
      against Wilson and Bartholomew County 4-H Fair, Inc., and, as is relevant

      here, the trial court granted summary judgment in favor of Wilson.1 Jones

      appeals, raising the following restated issue: whether the trial court properly

      determined that Wilson did not owe a duty to Jones to protect her from the

      criminal acts of a third person that occurred in the parking lot.


[2]   We affirm.


                                  Facts and Procedural History
[3]   On June 7, 2014, Jones attended a live wrestling event that took place in the

      Family Arts building at the Bartholomew County Fairgrounds. The day before,

      Wilson entered into a contract with Bartholomew County 4-H Fair, Inc.,

      specifically a Privilege Agreement (“the Agreement”), under which Wilson

      rented the Family Arts building for the wrestling event. Appellant’s App. Vol. II

      at 33.


[4]   Jones arrived at approximately 5:30 p.m., and at around 11:00 p.m., she left the

      building, although the event was not yet over, to get some medication from her

      car. Jones stated that she used her flashlight on her cell phone to illuminate her

      path as the lights in the parking lot were not illuminated. As she walked alone




      1
       We note that, according to the record before us, Jones’s claims against Bartholomew County 4-H Fair, Inc.
      were resolved by settlement, and Bartholomew County 4-H Fair, Inc. was dismissed from the action in
      February 2017.

      Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017                     Page 2 of 12
      through the parking lot to her vehicle, Jones was attacked by an unknown

      assailant and suffered injuries.


[5]   On February 2, 2015, Jones filed a complaint against Wilson and Bartholomew

      County 4-H Fair, Inc., alleging negligence. Id. at 7-10. She asserted that it was

      dark outside when she left the Family Arts building, she saw no security

      personnel around the immediate exterior of the building or in the parking lot,

      the lighting in the parking lot was not operating the night she was attacked, and

      Wilson “as the host and promoter of the event had a duty to Plaintiff, with

      respect to the maintenance and repair of facility and its condition with regard to

      the safety of attendees such as Plaintiff.” Id. at 9. Jones claimed that Wilson

      breached his duty and that the lack of lighting, lack of security, and presence of

      alcohol proximately caused her injuries.


[6]   As is relevant here, Wilson filed a motion for summary judgment, later

      supplemented, asserting that he had no duty to Jones while she was in the

      parking lot to protect her from unforeseeable criminal acts of a third party.

      Wilson further argued that the Agreement did not place any obligation on

      Wilson to provide security for the parking areas around the building or to

      maintain the lighting in the parking area, which was owned by Bartholomew

      County 4-H Fair, Inc. Id. at 13-17, 24-28. Wilson designated the following

      evidence: (1) the Agreement; (2) Jones’s complaint; (3) and excerpts of the

      deposition of Larry Fisher (“Fisher”), who was the president of the

      Bartholomew County Fair Board. Asserting that he owed no duty to Jones,

      Wilson claimed that he was entitled to judgment as a matter of law.

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[7]   Jones filed her response to Wilson’s summary judgment motion, and, in

      support, she relied upon the following evidence: portions of Wilson’s

      deposition; Jones’s responses to interrogatories; the complaint; portions of

      Fisher’s deposition; and the Agreement.2 In opposing summary judgment, she

      argued that summary judgment was not proper because material facts were in

      dispute as to whether the lights in the parking lot were functioning. She also

      asserted that Wilson had a duty to take reasonable precautions to protect

      business invitees, such as Jones, from foreseeable criminal acts and that, under

      the circumstances here, the attack was reasonably foreseeable where Jones had

      to walk through “a relatively secluded and unlit, grassy parking area.” Id. at 23.

      She maintained that “this absence of exterior lighting is a condition of the land

      which contributed to the likelihood of the attack on [] Jones.” Id. at 28.

      Following a hearing, the trial court issued an order granting Wilson’s motion

      for summary judgment.3 Jones now appeals.




      2
        Jones does not include in her appendix any designation of evidence that she may have filed. However, we
      observe that Plaintiff’s Response to Defendant’s Motion for Summary Judgment (“Response”) cites to and
      quotes from Jerry Wilson’s deposition, Jones’s responses to interrogatories, the complaint, Larry Fisher’s
      deposition, and the Agreement; she identifies those materials in her Response as Exhibits A-E, respectively.
      Appellant’s App. Vol. II at 11-24. Jones provides some, but not all, of those materials in her Appendix. Jones
      also includes in her Appendix excerpts from her own deposition, which is marked as Exhibit 3, see id. at 34-
      40, but it is not clear from the record whether it was Plaintiff’s or Defendant’s Exhibit 3, what document it
      was an exhibit to, and if it was designated evidence considered by the trial court. We also note that page 2 of
      Appellant’s Appendix Vol. II appears to be a cover page to an “Exhibit Volume,” but no exhibit volume is
      included in the record before us.
      3
        We note that the trial court’s order granting summary judgment did not include specific findings of fact and
      conclusion of law in support of its judgment. Appellant’s App. Vol. II at 5-6. Specific findings are not required
      in summary judgment proceedings and are not binding on appeal. AutoXchange.com. Inc. v. Dreyer and
      Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. App. 2004).



      Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017                           Page 4 of 12
                                      Discussion and Decision
[8]   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. Wagner v. Yates, 912 N.E.2d 805, 808 (Ind. 2009).

      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. Goodwin v. Yeakle’s Sports Bar &

      Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). 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

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

      judgment as a matter of law. Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 39 (Ind.

      2002). The party appealing the grant of summary judgment has the burden of

      persuading this court that the trial court’s ruling was improper. Hoosier

      Mountain Bike Ass’n, Inc. v. Kaler, 73 N.E.3d 712, 716 (Ind. Ct. App. 2017)

      (citing First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct.

      App. 2008), trans. denied). Where the challenge to summary judgment raises

      questions of law, we review them de novo. Rogers v. Martin, 63 N.E.3d 316, 320

      (Ind. 2016).


      Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017   Page 5 of 12
[9]    To recover in negligence, the plaintiff must establish: (1) a duty on the part of

       the defendant to conform his conduct to a standard of care arising from his

       relationship with the plaintiff; (2) a failure on the part of the defendant to

       conform his conduct to the requisite standard of care; and (3) an injury to the

       plaintiff proximately caused by the breach. Nance v. Holy Cross Counseling Grp.,

       804 N.E.2d 768, 771 (Ind. Ct. App. 2004), trans. denied. Absent a duty, there

       can be no breach and, therefore, no recovery in negligence. Id. at 772.

       Whether a duty exists is a question of law for the court to decide. Goodwin, 62

       N.E.2d at 389.


[10]   In this case, the threshold inquiry is whether Wilson owed a duty to Jones, an

       invitee, to protect her from a criminal attack by an unknown assailant while she

       was in the parking lot around 11:00 p.m., having exited the building that

       Wilson had rented from the fairgrounds for the wrestling event.4 As a

       preliminary matter, we observe that the record before us indicates that Wilson

       rented the Family Arts building on the Bartholomew County Fairgrounds, but

       nothing establishes that any duty Wilson may have had to Jones that night

       extended beyond the Family Arts building and into the grassy area used for




       4
         “‘Under Indiana law, an invitee is a person who goes onto the land of another at the express or implied
       invitation of the owner or occupant either to transact business or for the mutual benefit of invitee and owner
       or occupant.’” Winfrey v. NLMP, Inc., 963 N.E.2d 609, 612 (Ind. Ct. App. 2012) (quoting Markle v. Hacienda
       Mexican Rest., 570 N.E.2d 969, 971 (Ind. Ct. App. 1991)). “‘A licensee is one who enters premises of another
       for his own convenience, curiosity, or entertainment.’” Id. There appears to be no disagreement between the
       parties that Jones was an invitee when she was injured.

       Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017                         Page 6 of 12
       parking. On that point, Wilson argued to the trial court during summary

       judgment proceedings,


               [Wilson] had no duty to do anything with regard to the lighting.
               The only thing that [Wilson] was responsible for that evening
               was the Family Arts building. [Wilson] did not rent the parking
               lot, did not receive payment from people who parked in the
               parking lot, and had no responsibility to see that the lights were
               working. That was the Fair’s responsibility.


       Appellee’s App. Vol. II at 21. However, on appeal, Wilson states, perhaps

       concedes, “Wilson does not dispute that Jones was a business invitee of Wilson

       when she was attacked, even though she had left the building.” Appellee’s Br. at

       7. Assuming without deciding that any duty that Wilson owed to Jones would

       have extended to the parking lot, we turn to the issue of whether, based on

       existing caselaw concerning a landowner’s duty to protect invitees against

       attacks by third parties, Wilson had a duty in this case to protect Jones against

       the criminal attack.


[11]   Necessary to our decision today is consideration of, in particular, two 2016

       Indiana Supreme Court cases, namely: Rogers v. Martin and Goodwin v. Yeakle’s

       Sports Bar & Grill, Inc. These cases “redrew the premises liability landscape[.]”

       Hoosier Mountain Bike Ass’n, 73 N.E.3d at 716 n.4. The Goodwin and Rogers

       cases reviewed the evolution of premises liability law in Indiana, initially

       observing the general duty a landowner owes to an invitee: a landowner must

       exercise reasonable care for the invitee’s protection while the invitee is on the

       premises. Rogers, 63 N.E.3d at 320. However, “although landlords owe

       Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017    Page 7 of 12
       invitees a well-established ‘duty to protect,’ courts must look at one critical

       element before extending that duty to cases where an invitee’s injury occurs not

       due to a dangerous condition of the land but due to some harmful activity on

       the premises. That element is foreseeability.” Id. at 324. That is, while

       landowners have a duty to take reasonable precaution to protect their invitees

       from criminal attacks by third parties, there is a foreseeability component in

       that analysis, requiring the trial court to decide, in the context of duty, whether

       the criminal act was foreseeable.


[12]   Our Supreme Court distinguished the foreseeability component in the context

       of duty from the foreseeability component in the context of proximate cause,

       stating: “‘[T]he foreseeability component of proximate cause requires an

       evaluation of the facts of the actual occurrence, while foreseeability as a

       component of duty involves a lesser inquiry which requires a more general

       analysis of the broad type of plaintiff and harm involved, without regard to the

       facts of the actual occurrence.’”5 Goodwin, 62 N.E.3d at 391 (quoting Goldsberry

       v. Grubbs, 672 N.E.2d 475, 479 (Ind. Ct. App. 1996), trans. denied); see also

       Rogers, 63 N.E.3d at 325 (foreseeability in duty context is general threshold

       determination that “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




       5
         In reaching this distinction, the Goodwin Court specifically rejected the use of the “totality of the
       circumstances” test when analyzing foreseeability analysis in the context of duty. See Goodwin v. Yeakle’s
       Sports Bar & Grill, Inc., 62 N.E.3d 384, 389 (Ind. 2016) (“[W]e now recognize that although the ‘totality of the
       circumstances’ test is useful in determining foreseeability in the context of proximate causation, it is
       inappropriate when analyzing foreseeability in the context of duty.”)

       Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017                          Page 8 of 12
       to be expected—without addressing the specific facts of the occurrence”). The

       Goodwin Court further clarified the trial court’s task when determining whether

       a criminal act was foreseeable:

               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.”


       Goodwin, 62 N.E.3d at 392 (quoting Satterfield v. Breeding Insulation, Co., 266

       S.W.3d 347, 367 (Tenn. 2008)).


[13]   Here, in support of his contention that the criminal assault on Jones was not

       foreseeable and that he did not owe a duty to Jones, Wilson submitted evidence

       showing that he rented the Family Arts building for one night from

       Bartholomew County 4-H Fair, Inc., as he had done on prior occasions, that

       the Agreement did not place obligations on Wilson to provide security for

       parking areas around the Family Arts building or take care of the lighting

       outside of the building, and that, Fisher, the Fair Board president, was not

       aware of any prior such criminal attacks in the twenty-plus years that he had

       been involved with the organization. Wilson argues that, applying the

       foreseeability test of Goodwin and Rogers, which requires an evaluation of (1) the

       broad type of plaintiff and (2) the broad type of harm, without consideration of

       the actual facts, he did not owe a duty to Jones. Specifically, Wilson argues,


       Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017   Page 9 of 12
       the broad type of plaintiff in this case was a paying spectator at a wrestling

       match and the broad type of harm was a random criminal attack, the type of

       which had not occurred in decades, occurring outside the building that Wilson

       had rented. Wilson argues that its designated evidence showed that any attack

       was not foreseeable, he did not owe a duty to Jones in that situation, and the

       trial court properly granted summary judgment in favor of Wilson.


[14]   Jones argues that, while foreseeability plays a role in the analysis of duty in

       some cases, it does not in her particular case. Her argument is that her injuries

       and claim relate to a condition of the land, and in that situation, a foreseeability

       analysis in the context of duty is neither warranted nor appropriate. Appellant’s

       Br. at 12-13 (referring to Rogers, 63 N.E.3d at 321). Jones is correct that in cases

       “[w]hen a physical injury occurs as a result of a condition on the land,” the

       Restatement (Second) of Torts section 343 “accurately describe[s] the

       landowner-invitee duty,” 6 and a foreseeability analysis as to duty is not

       required. See Rogers, 63 N.E.3d at 322-23 (distinguishing cases where injury




       6
           The Restatement (Second) of Torts section 343 provides:

       A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if,
       but only if, he
       (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it
       involves an unreasonable risk of harm to such invitees, and
       (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it,
       and
       (c) fails to exercise reasonable care to protect them against the danger.
       Rogers v. Martin, 63 N.E.3d 316, 322 (Ind. 2016) (quoting Burrell v. Meads, 569 N.E.2d 637, 639-40 (Ind.
       1991)).



       Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017                            Page 10 of 12
       results from “a condition on the land” from those cases in which invitees suffer

       injuries “due to activities on a landowner’s premises,” in which “foreseeability

       is a necessary inquiry in determining whether the landowner’s duty of

       reasonable care extends to the particular circumstances”). Jones urges that her

       case falls into the former category – injury due to a condition on the land – such

       that “the element of duty has been declared or otherwise articulated,” and,

       accordingly, there is no need to engage in a foreseeability analysis as to duty.

       Appellant’s Br. at 12-13. More specifically, Jones’s position is that the lack of

       lighting is a condition of the land that contributed to the attack, and, therefore,

       the duty is clearly established and the foreseeability inquiry goes only to a

       proximate cause inquiry. Jones maintains that Wilson owed a duty to Jones

       and that the trial court erred when it granted summary judgment to Wilson

       because proximate cause issues remained for the factfinder.


[15]   In response, Wilson urges that the parking lot lights are not “a condition of the

       land,” pointing out that an assailant injured her, not the parking lot lights, and

       that she was not injured when she stepped in a hole or otherwise injured

       because of some condition of the land, and, therefore, this case is not a

       “condition of the land” case where duty has already been declared or

       articulated. We agree with Wilson in this regard. Jones’s injuries resulted from

       the conduct of a third person, and we find that the foreseeability test outlined in

       Goodwin and Rogers must be applied to see if a duty exists at all. Under that test

       – examining (1) the broad type of plaintiff and (2) the broad type of harm,

       without consideration of the actual facts – we find that the harm inflicted on


       Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017   Page 11 of 12
       Jones was not normally to be expected, and thus not foreseeable, and Wilson

       did not owe a duty to Jones. See Goodwin, 62 N.E.3d at 393-94 (recognizing

       that, although bars “can often set the stage for rowdy behavior,” bar owners do

       not routinely contemplate that one patron might shoot another and shooting

       inside neighborhood bar was not foreseeable, such that bar owner did not owe

       duty to injured patron in that case); Rogers, 63 N.E.3d at 326 (“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.”). Here, Jones has failed to carry her burden to

       show us that the trial court’s decision to grant summary judgment in favor of

       Wilson was improper.


[16]   Affirmed.


       Mathias, J., and Altice, J., concur.




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