                                                                           FILED
                                                                       Jan 18 2019, 7:58 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEE
J. Thomas Vetne                                            Benjamen W. Murphy
Amanda N. Zaluckyj                                         Griffith, Indiana
Jones Obenchain, LLP
South Bend, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Buddy & Pals III, Inc., Buddy &                            January 18, 2019
Pals II, Inc., Buddy & Pals Inc.,                          Court of Appeals Case No.
Timothy Heidbreder, and                                    18A-CT-1811
William Frank Bailey, Jr.,                                 Appeal from the Lake Superior
Appellants-Defendants,                                     Court
                                                           The Honorable Bruce D. Parent,
        v.                                                 Judge

Christopher Falaschetti,                                   The Honorable Steven King,
                                                           Senior Judge
Appellee-Plaintiff
                                                           Trial Court Cause No.
                                                           45D04-1410-CT-186



Crone, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-1811 | January 18, 2019                           Page 1 of 9
                                               Case Summary
[1]   Shortly after he was ejected via the back door of Buddy & Pals sports bar for

      fighting, William Frank Bailey, Jr., punched Christopher Falaschetti outside the

      front entrance. Falaschetti filed a personal injury action against Buddy & Pals

      III, Inc., Buddy & Pals II, Inc., Buddy & Pals Inc., owner Timothy Heidbreder

      (collectively “Buddy & Pals”), and Bailey.1 In this interlocutory appeal, Buddy

      & Pals challenges the denial of its motion for summary judgment on

      Falaschetti’s negligence claim. Finding that Buddy & Pals failed to establish as

      a matter of law that it did not owe Falaschetti a duty to protect him from

      Bailey’s criminal act, we affirm the denial of summary judgment.


                                   Facts and Procedural History
[2]   One night in January 2013, Falaschetti was socializing with friends at Buddy &

      Pals sports bar while waiting for his girlfriend to finish a work-related

      promotional event there. Bailey also was at Buddy & Pals that night with his

      fiancée and consumed numerous alcoholic beverages over a three-hour period.

      At one point, Bailey saw a man talking to his fiancée, so he approached and

      placed his hand on the man’s shoulder. The man threw Bailey to the ground,

      and Buddy & Pals’ bouncers intervened. A bouncer known as Joe put Bailey in

      a chokehold. Bailey forcibly tried to pull away to get to the man who had

      shoved him. He described himself as “a danger” to Joe and to everyone in his



      1
       Falaschetti asserted intentional tort and negligence claims against Bailey. Bailey was not a party to Buddy
      & Pals’ summary judgment motion and is not participating in this interlocutory appeal.

      Court of Appeals of Indiana | Opinion 18A-CT-1811 | January 18, 2019                              Page 2 of 9
      way. Appellants’ App. Vol. 3 at 19. Joe ejected Bailey via the back door and

      threw him to the pavement. The other man was briefly detained pending

      Bailey’s departure and then ejected via the front door. Bailey approached the

      back door again, but another bouncer punched him in the eye and slammed the

      door. Concerned that Bailey might try to re-enter through the front entrance,

      Joe apprised the front-area bouncers of the situation. About a minute later,

      Bailey rounded the corner toward the front of the building in search of the man

      who had initially shoved him.


[3]   Meanwhile, Falaschetti and his girlfriend exited the bar via the front door.

      Believing Falaschetti to be the man who had shoved him, Bailey punched

      Falaschetti, causing him to suffer a broken jaw, severe headaches, dizziness,

      neck pain, and optic nerve inflammation. Bailey initially panicked and fled, but

      when he heard someone shout that he had hit the wrong guy, he returned and

      was arrested.


[4]   In January 2015, Falaschetti filed a personal injury action against Buddy & Pals

      and Bailey. After extensive discovery, Buddy & Pals filed a motion for

      summary judgment as to Falaschetti’s negligence claim,2 asserting that it owed

      Falaschetti no duty to protect him from Bailey’s criminal act. The trial court

      conducted a hearing and issued an order denying Buddy & Pals’ summary

      judgment motion. Buddy & Pals sought and was granted certification of the



      2
        In his complaint, Falaschetti asserted claims against Buddy & Pals for negligence, gratuitous assumption of
      duty, and Dram Shop Act violations. Buddy & Pals’ motion for summary judgment addresses only the
      negligence claim (Count IV). We therefore limit our discussion accordingly.

      Court of Appeals of Indiana | Opinion 18A-CT-1811 | January 18, 2019                              Page 3 of 9
      order for interlocutory appeal, and we accepted jurisdiction. Additional facts

      will be provided as necessary.


                                      Discussion and Decision
[5]   Buddy & Pals challenges the denial of its motion for summary judgment. We

      review a court’s ruling on a summary judgment motion de novo, applying the

      same standard as the trial court and drawing all reasonable inferences in favor

      of the nonmoving party. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In

      conducting our review, we consider only those matters that were designated at

      the summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229

      (Ind. Ct. App. 2011).


[6]   Summary judgment is appropriate if the designated evidence shows that there is

      no genuine issue as to any material fact and that the moving party is entitled to

      judgment as a matter of law. Hughley, 15 N.E.3d at 1003; Ind. Trial Rule

      56(C). The moving party bears the onerous burden of affirmatively negating an

      opponent’s claim. Hughley, 15 N.E.3d at 1003. Then, the nonmoving party

      must “come forward with contrary evidence” showing a genuine issue for the

      trier of fact. Williams v. Tharp, 914 N.E.2d 756, 762 (Ind. 2009).


[7]   In determining whether issues of material fact exist, we neither reweigh

      evidence nor judge witness credibility. Peterson v. Ponda, 893 N.E.2d 1100, 1104

      (Ind. Ct. App. 2008), trans. denied (2009). Rather, we must accept as true those

      facts established by the designated evidence favoring the nonmoving party. Brill

      v. Regent Commc’ns, Inc., 12 N.E.3d 299, 309 (Ind. Ct. App. 2014), trans. denied.

      Court of Appeals of Indiana | Opinion 18A-CT-1811 | January 18, 2019       Page 4 of 9
      “Any doubt as to any facts or inferences to be drawn therefrom must be

      resolved in favor of the non-moving party.” Goodwin v. Yeakle’s Sports Bar &

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


[8]   To prevail on a negligence claim, the plaintiff must demonstrate “(1) duty owed

      to plaintiff by defendant; (2) breach of duty by allowing conduct to fall below

      the applicable standard of care; and (3) compensable injury proximately caused

      by defendant’s breach of duty.” Id. (quoting King. v. Ne. Sec., Inc., 790 N.E.2d

      474, 484 (Ind. 2003)). “The duty, when found to exist, is the duty to exercise

      reasonable care under the circumstances.” Stump v. Indiana Equip. Co., 601

      N.E.2d 398, 402 (Ind. Ct. App. 1992), trans. denied (1993).


[9]   Buddy & Pals specifically asserts that as a matter of law, it owed no duty to

      protect Falaschetti against Bailey’s criminal act. The issue of “whether a duty

      exists is a question of law for the court to decide.” Goodwin, 62 N.E.3d at 389.

      “[A]s a component of duty, foreseeability must be determined by the court[.]”

      Id. at 390. “Proprietors owe a duty to their business invitees to use reasonable

      care to protect them from injury caused by other patrons and guests on their

      premises.” Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1052 (Ind.

      2003). This includes protecting invitees from reasonably foreseeable criminal

      acts. Id. at 1053. In fact, “[w]here a premises liability claim is based on

      activities on the land [rather than a condition of the land], foreseeability is the

      critical inquiry in determining whether the landowner's duty of reasonable care

      extends to the particular circumstances at issue.” Certa v. Steak ‘n Shake



      Court of Appeals of Indiana | Opinion 18A-CT-1811 | January 18, 2019          Page 5 of 9
       Operations Inc., 102 N.E.3d 336, 340 (Ind. Ct. App. 2018) (quoting Rogers v.

       Martin, 63 N.E.3d 316, 325 (Ind. 2016)), trans. denied.


[10]   “[F]or 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)). This involves a “more general analysis of the

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

       actual occurrence.” Id. at 393 (quoting Goldsberry v. Grubbs, 672 N.E.2d 475,

       479 (Ind. Ct. App. 1996), trans. denied (1999)).


[11]   Buddy & Pals relies on Goodwin as support for finding no duty to protect the

       plaintiff against the harm suffered. In Goodwin, one bar patron thought he

       overheard another patron making a derogatory remark about his wife. 62

       N.E.3d at 385. In his anger, he pulled out a handgun and fired at the other

       patron, striking him and his two companions. Id. Reasoning that bar owners

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

       another[,]” our supreme court held “that a shooting inside a neighborhood bar

       is not foreseeable as a matter of law.” Id. at 393-94. Goodwin is similar to the

       present case in some respects. Both cases involve the same broad type of

       plaintiff, a bar patron. To the extent that Buddy & Pals suggests that

       Falaschetti falls into the category of “a complete stranger” to the assailant, we

       find this too narrow an application. Appellants’ Br. at 13. Both Goodwin and

       the present case involve harm related to an activity on the land, a criminal

       Court of Appeals of Indiana | Opinion 18A-CT-1811 | January 18, 2019       Page 6 of 9
       attack. Nevertheless, in analyzing foreseeability, i.e., the probability or

       likelihood of the criminal attack, we must look at the nature of the attack.

       Goodwin involved one patron suddenly shooting other patrons inside the bar. In

       contrast, here, a pugnacious patron ejected for fighting punched another patron

       exiting the bar by the other door. We believe this is the type of “rowdy

       behavior … that bar owners routinely contemplate.” Goodwin, 62 N.E.3d at

       394. The fact that Buddy & Pals had several bouncers on duty inside the bar

       and an off-duty officer patrolling the parking lot underscores the foreseeability

       of these types of occurrences.


[12]   We find this case more akin to the Steak ‘n Shake cases, where employees

       observed escalating agitation among patrons, had reason to anticipate that a

       physical altercation might ensue, and therefore had a duty to take reasonable

       steps to protect the patrons. See Certa, 102 N.E.3d at 337-38 (reversing

       summary judgment for restaurant on issue of duty where patrons informed

       restaurant employees of physical altercations in parking lot, restaurant did not

       take steps to avoid further violence, and tensions escalated to where one patron

       struck another patron with her vehicle); see also Hamilton v. Steak ‘n Shake

       Operations Inc., 92 N.E.3d 1166, 1167 (Ind. Ct. App. 2018) (reversing summary

       judgment for restaurant on issue of duty where restaurant employees observed

       escalating tensions between two groups of patrons, did not intervene or contact

       security or police, and plaintiff was shot inside restaurant), trans. denied.


[13]   “[W]hat the landowner knew or had reason to know is a pivotal consideration

       in determining foreseeability[.]” Certa, 102 N.E.3d at 341. Here, Buddy &

       Court of Appeals of Indiana | Opinion 18A-CT-1811 | January 18, 2019            Page 7 of 9
       Pals, through its bouncers, knew that Bailey – a large,3 angry, and visibly

       inebriated patron – had vigorously resisted them as they attempted to defuse the

       tensions between him and the man who shoved him. The bouncers also knew

       that he had approached the back entrance again after being ejected, prompting

       one of the bouncers to punch him and slam the door. They also anticipated

       that he would go around the building to the front entrance, which precipitated

       Joe’s warning to the bouncers up front.


[14]   In sum, Buddy & Pals, through its bouncers, knew that Bailey was a loose

       cannon who was not taking his ejection well and was in a fighting mood. As

       such, Buddy & Pals had a duty to take precautions to protect its other patrons,

       including Falaschetti, from further violent attacks by Bailey on the bar’s

       premises.4 This is not to say that Buddy & Pals breached its duty to protect

       Falaschetti; that will be a determination for the trier of fact once presented with

       evidence of the detailed circumstances of this case. Based on the foregoing, we

       conclude that Buddy & Pals failed to establish as a matter of law that it owed

       Falaschetti no duty to protect him from Bailey’s attack. Accordingly, we affirm

       the trial court’s denial of Buddy & Pals’ motion for summary judgment.




       3
         Bailey testified by deposition that he is six feet two inches tall and weighed approximately 225 pounds in
       January 2013. Appellants’ App. Vol. 3 at 28.
       4
         Buddy & Pals also relies on mistaken identity, i.e., the fact that Bailey struck the wrong patron, as support
       for a finding that foreseeability was lacking. See Appellants’ Br. at 13 (“In fact, [Bailey] didn’t even foresee
       his actions”). We find this argument to be a nonstarter, as we assess foreseeability in terms of whether the
       type of harm to any of its patrons was foreseeable to the landowner/proprietor.

       Court of Appeals of Indiana | Opinion 18A-CT-1811 | January 18, 2019                                  Page 8 of 9
[15]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-1811 | January 18, 2019   Page 9 of 9
