                                                                             Mar 25 2015, 10:34 am




      ATTORNEY FOR APPELLANTS                                   ATTORNEYS FOR APPELLEE
      Joe Keith Lewis                                           James J. Shea, Sr.
      Marion, Indiana                                           Timothy W. DeGroote
                                                                Andrew S. Williams
                                                                Fort Wayne, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      April Goodwin, Tiffany                                    March 25, 2015
      Randolph, and Javon                                       Court of Appeals Case No.
      Washington,                                               27A02-1407-CT-526
                                                                Appeal from the Grant Superior
      Appellants-Plaintiffs,
                                                                Court
              v.                                                The Honorable Jeffrey D. Todd,
                                                                Judge
      Yeakle’s Sports Bar and
                                                                Cause No. 27D01-1105-CT-400
      Grill, Inc.,
      Appellee-Defendant.




      Najam, Judge.


                                        Statement of the Case
[1]   This case presents yet another opportunity for Indiana’s appellate courts to

      clarify the Indiana test for determining whether a duty exists in a negligence

      action, an issue that has created confusion at every level of our judiciary. There


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      are two tests in Indiana. First, if a duty is well-established in our case law, and

      the case before the court is substantially similar to that case law, then that duty

      applies. If, on the other hand, the case before the court presents facts and

      circumstances that have not been addressed in prior decisions of Indiana’s

      appellate courts, then in determining whether a duty exists, we must balance

      the three factors articulated in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991),

      including the reasonable foreseeability of harm to the person injured.


[2]   Here, April Goodwin, Tiffany Randolph, and Javon Washington (collectively

      “the Appellants”) filed a complaint against Yeakle’s Sports Bar and Grill, Inc.

      (“the Bar”) alleging that the Bar was negligent when it failed to protect them

      from criminal acts committed by Rodney Carter on the Bar’s premises. The Bar

      moved for summary judgment, and the trial court granted that motion

      following a hearing. On appeal, the Appellants raise a single issue for our

      review, namely, whether the trial court erred when it entered summary

      judgment in favor of the Bar.


[3]   The parties dispute whether a duty existed concerning whether the Bar could

      have reasonably foreseen Carter’s criminal acts. But the facts demonstrate that

      this is a straight-forward premises liability case, and the duty in such cases is

      well-established in our case law. As such, reasonable foreseeability is not part

      of the analysis with respect to the Bar’s duty. As this was the only argument

      raised to the trial court and was the basis of the court’s entry of summary

      judgment for the Bar, the trial court’s entry of summary judgment was



      Court of Appeals of Indiana | Opinion 27A02-1407-CT-526 | March 25, 2015   Page 2 of 13
      erroneous as a matter of law. Accordingly, we reverse and remand for further

      proceedings.


                                    Facts and Procedural History
[4]   During the early morning hours of August 28, 2010, Goodwin, Randolph, and

      Washington were socializing with friends at Yeakle’s, a small bar in Marion.

      Carter and his wife were also there, and they were positioned near Washington

      and the others. At some point, Carter thought he heard Washington make a

      derogatory remark about Carter’s wife, and Carter shot Washington. 1 Carter

      separately, and accidentally, shot Goodwin and Randolph.2


[5]   The Appellants filed a complaint against the Bar alleging that it


                was negligent in providing a safe place for their patrons to
                socialize as follows:
                a. By negligently failing to provide security for its patrons;
                b. By negligently failing to search Rodney Carter for weapons;
                c. By otherwise negligently failing to warn plaintiffs that Rodney
                Carter was armed and dangerous.


      Appellants’ App. at 15. The Bar filed a motion for summary judgment alleging

      that Carter’s criminal acts were unforeseeable as a matter of law and, therefore,

      that it did not have a duty to protect the Appellants from being shot. Following




      1
          Yeakle’s prohibited guns on the premises.
      2
          All three victims survived their gunshot wounds.


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      a hearing, the trial court entered summary judgment in favor of the Bar. This

      appeal ensued.


                                      Discussion and Decision
[6]   The Appellants contend that the trial court erred when it entered summary

      judgment in favor of the Bar. In particular, the Appellants maintain that

      Carter’s criminal acts were foreseeable and the trial court erred when it

      concluded that the Bar owed them no duty to protect them from being shot.

      We hold that the Bar had a duty to protect the Appellants from harm, but we

      do not address the foreseeability of Carter’s criminal acts in resolving this issue.

      Instead, a determination of whether the shootings were reasonably foreseeable

      goes to the issue of whether the Bar breached its duty, an issue which was not

      raised on summary judgment.


[7]   Our standard of review is well-settled.

              We review summary judgment de novo, applying the same
              standard as the trial court: “Drawing all reasonable inferences in
              favor of . . . the non-moving parties, summary judgment is
              appropriate ‘if the designated evidentiary matter 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.’” Williams v.
              Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 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. (internal citations omitted).



      Court of Appeals of Indiana | Opinion 27A02-1407-CT-526 | March 25, 2015    Page 4 of 13
              The initial burden is on the summary-judgment movant to
              “demonstrate[] the absence of any genuine issue of fact as to a
              determinative issue,” at which point the burden shifts to the non-
              movant to “come forward with contrary evidence” showing an
              issue for the trier of fact. Id. at 761-62 (internal quotation marks
              and substitution omitted). And “[a]lthough the non-moving
              party has the burden on appeal of persuading us that the grant of
              summary judgment was erroneous, we carefully assess the trial
              court’s decision to ensure that he was not improperly denied his
              day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
              916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
              omitted).


      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

      Hughley).


[8]   We emphasize that summary judgment is a “high bar” for the moving party to

      clear in Indiana. Id. at 1004. “In particular, while federal practice permits the

      moving party to merely show that the party carrying the burden of proof [at

      trial] lacks evidence on a necessary element, we impose a more onerous burden:

      to affirmatively ‘negate an opponent’s claim.’” Id. at 1003 (quoting Jarboe v.

      Landmark Comm. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994)).


[9]   The issue of a landowner’s duty to protect an invitee from the criminal acts of a

      third party has been addressed by our courts in numerous significant cases. Our

      supreme court recently set out the general law underlying the question of duty

      in negligence actions as follows:

              The essential elements for a negligence action are “(1) a duty
              owed to the plaintiff by the defendant, (2) a breach of the duty,
              and (3) an injury proximately caused by the breach of duty.”
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               Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011) (citing
               Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1123
               (Ind. 2010)). Where there is no duty, there can be no breach, and
               thus the party cannot be found negligent. Pfenning, 947 N.E.2d at
               398. Whether a duty exists is generally a question of law for the
               court. Id. In making this determination, “a three-part balancing
               test developed by this Court ‘can be a useful tool.’” Id. (quoting
               Kephart, 934 N.E.2d at 1123) (citing N. Ind. Pub. Serv. Co. v.
               Sharp, 790 N.E.2d 462, 465 (Ind. 2003)) (referencing the factors
               enunciated in Webb[, 575 N.E.2d 992 at 995]: “(1) the
               relationship between the parties, (2) the reasonable foreseeability
               of harm to the person injured, and (3) public policy concerns”).
               However, this test is only needed “in those instances where the element of
               duty has not already been declared or otherwise articulated.” Sharp, 790
               N.E.2d at 465; see also Paragon Family Rest. v. Bartolini, 799
               N.E.2d 1048, 1053 (Ind. 2003) (“Where, as in this case, the
               alleged duty is well-established, there is no need for a new
               judicial redetermination of duty.”).


       Yost v. Wabash College, 3 N.E.3d 509, 515 (Ind. 2014) (emphasis added).

       Relevant to the instant appeal, our supreme court has declared that the Webb

       balancing test is unnecessary where a particular duty is well-established. Id.

       But our courts have not consistently followed this rule since Sharp and Bartolini

       were handed down in 2003.


[10]   Here, for instance, in concluding that the Bar did not owe a duty to the

       Appellants to protect them from the shootings, the trial court relied on this

       court’s opinion in Merchant’s National Bank v. Simrell’s Sports Bar and Grill, Inc.,

       741 N.E.2d 383 (Ind. Ct. App. 2000), which pre-dated Sharp and Bartolini. In

       Simrell’s, which also involved a shooting at a bar, another panel of this court

       relied on a trilogy of opinions by our supreme court that had held that the

       Court of Appeals of Indiana | Opinion 27A02-1407-CT-526 | March 25, 2015        Page 6 of 13
       determination of whether a landowner owes an invitee a duty to take

       reasonable care to protect the invitee against a third party criminal attack

       requires consideration of the totality of the circumstances to determine whether

       the criminal act was reasonably foreseeable. Id. at 387 (citing Delta Tau Delta v.

       Johnson, 712 N.E.2d 968, 973 (Ind. 1999); Vernon v. Kroger Co., 712 N.E.2d 976,

       979 (Ind.1999); L.W. v. Western Golf Ass’n, 712 N.E.2d 983, 984-985 (Ind.

       1999)). The Simrell’s court held that, because the shooting was not reasonably

       foreseeable, the bar did not owe the plaintiff a duty of care to protect him from

       being shot.


[11]   However, only four years after the Delta Tau Delta trilogy, our supreme court

       rejected application of the Webb balancing test where the existence of a duty is

       already “well-established.” Bartolini, 799 N.E.2d at 1053. In Bartolini, the

       plaintiff, who was a patron of the defendant’s pub, was assaulted by other

       patrons in the parking lot. In addressing the issue of whether the defendant

       owed the plaintiff a duty to protect him from the criminal acts of third parties,

       our supreme court explained in relevant part as follows:

               Landowners have a duty to take reasonable precautions to
               protect their invitees from foreseeable criminal attacks. Delta Tau
               Delta[, 712 N.E.2d at 973]. In addition, we have observed that
               the duty of a business to exercise reasonable care extends to
               keeping its parking lot safe and providing a safe and suitable
               means of ingress and egress. Vernon[, 712 N.E.2d at 979]. [More
               recently, in Sharp, 790 N.E.2d at 465, we] recognized that an
               individualized judicial determination of whether a duty exists in a
               particular case is not necessary where such a duty is well-settled. Thus,
               there is usually no need to redetermine what duty a business

       Court of Appeals of Indiana | Opinion 27A02-1407-CT-526 | March 25, 2015        Page 7 of 13
        owner owes to its invitees because the law clearly recognizes that
        “[p]roprietors 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, including providing
        adequate staff to police and control disorderly conduct.” Id.,
        (quoting Muex v. Hindel Bowling Lanes, Inc., 596 N.E.2d 263, 266
        (Ind. Ct. App. 1992)). This duty only extends to harm from the
        conduct of third persons that, under the facts of a particular case,
        is reasonably foreseeable to the proprietor.
        Muex, 596 N.E.2d at 267.


        In three cases handed down together four years ago, this Court
        held that the determination of whether a landowner owed an
        invitee a duty to take reasonable care to protect the invitee
        against a third party criminal attack requires consideration of the
        totality of the circumstances to determine whether the criminal
        act was reasonably foreseeable. [Western Golf, 712 N.E.2d at 984-
        985]; Vernon, 712 N.E.2d at 979; Delta Tau Delta, 712 N.E.2d at
        973. This analysis includes looking to “all of the circumstances
        surrounding an event, including the nature, condition, and
        location of the land, as well as prior similar incidents.” Western
        Golf, 712 N.E.2d at 985 (holding incidents of isolated childish
        pranks and actions in college co-ed living facility, absent evidence
        of prior violent acts or sexual assaults, do not make rape
        foreseeable); Vernon, 712 N.E.2d at 980 (holding frequent
        shoplifting and physical confrontations with escaping shoplifters,
        plus frequent police runs to premises, shows reasonable
        foreseeability that a shopper might be injured by crime);
        and Delta Tau Delta, 712 N.E.2d at 974 (holding that prior
        instance and information regarding sexual assaults at fraternity
        house demonstrated reasonable foreseeability of a sexual assault).
        While the number, nature, and location of prior similar incidents
        are substantial factors, “the lack of prior similar incidents will not
        preclude a claim where the landowner knew or should have
        known that the criminal act was foreseeable.” Id. at 973. We
        emphasized that “when the landowner is in a position to take

Court of Appeals of Indiana | Opinion 27A02-1407-CT-526 | March 25, 2015    Page 8 of 13
               reasonable precautions to protect his guest from a foreseeable
               criminal act, courts should not hesitate to hold that a duty
               exists.” Id. at 974.


               Upon the question of whether an individualized redetermination
               of duty is necessary where the general duty is otherwise well-
               settled, there is thus a procedural inconsistency between
               Sharp and the trilogy of Western Golf, Vernon, and Delta Tau
               Delta. There is no doubt, however, 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. We believe
               that Sharp provides the better answer. 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. at 1052-53 (emphases added).


[12]   While Sharp and Bartolini provide clear precedent that the Webb balancing test

       set out in Delta Tau Delta does not apply where a duty is well-established, our

       supreme court revisited this issue in Kroger v. Plonski, 930 N.E.2d 1 (Ind. 2010),

       where the plaintiff was assaulted in a Kroger parking lot. In reversing the grant

       of summary judgment for Kroger, the court resurrected the pre-Bartolini

       “totality of the circumstances” test of foreseeability in determining whether a

       duty existed, stating,

               [t]he more challenging inquiry is whether in a given case,
               involving business owners and their invitees, a particular element
               of duty has been met. This is so because the “duty only extends

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               to harm from the conduct of third persons that, under the facts of
               a particular case, is reasonably foreseeable to the proprietor.”
               Bartolini, 799 N.E.2d at 1052. Although reasonable foreseeability
               is ordinarily a question of fact for the jury to decide, see Humphery
               v. Duke Energy Ind., Inc., 916 N.E.2d 287, 295 (Ind. Ct. App.
               2009), in the context of duty—which is a question of law—see
               Estate of Heck v. Stoffer, 786 N.E.2d 265, 268 (Ind. 2003),
               reasonable foreseeability is determined by the court. It is in this
               context that the court considers the “totality of the
               circumstances.” Delta Tau Delta[, 712 N.E.2d at 972-73];
               Vernon[, 712 N.E.2d at 979]; [Western Golf, 712 N.E.2d at 984-
               85]. More precisely, the court must examine “all of the
               circumstances surrounding an event, including the nature,
               condition, and location of the land, as well as prior similar
               incidents to determine whether a criminal act was foreseeable.”
               Delta Tau Delta, 712 N.E.2d at 972.


       Id. at 7.


[13]   But the court then went on to


               emphasize that this examination is not an inquiry into whether or to
               what extent a landowner owes a duty to a business invitee. That issue
               is settled: “Landowners have a duty to take reasonable
               precautions to protect their invitees from foreseeable criminal
               attacks.” Bartolini, 799 N.E.2d at 1052. Rather, our inquiry is
               focused on whether a discreet element of the duty has been satisfied.


[14]   Id. (emphases added). Thus, on the one hand, the court declared that Kroger

       owed its business invitee a general duty of care, as a matter of law. But, on the

       other hand, the court stated that each case requires an “inquiry” into “whether

       a discreet element of the duty has been satisfied,” and it held that summary

       judgment was inappropriate because Kroger had failed to demonstrate that

       Court of Appeals of Indiana | Opinion 27A02-1407-CT-526 | March 25, 2015   Page 10 of 13
       “criminal activity on its premises at the time of the Plonski assault was not

       foreseeable.” Id. The court did not explain the apparent incongruity between

       Bartolini, which eschews a foreseeability determination in the context of duty

       where, as in Kroger, the duty is well-established, and its holding that whether a

       duty exists depends on the foreseeability of the criminal conduct.


[15]   Our supreme court most recently addressed this issue in Yost. In Yost, the

       plaintiff alleged in relevant part that Wabash College, the owner of a fraternity

       house, was negligent when it failed to protect Yost from the alleged criminal act

       of a fraternity member. 3 N.E.3d at 514. The court did not cite to Kroger, but,

       instead, it returned to the Sharp and Bartolini duty analysis and reiterated that


               [w]hether a duty exists is generally a question of law for the
               court. Pfenning[, 947 N.E.2d at 398]. In making this
               determination, [the Webb balancing test can be a useful tool.] Id.
               However, this test is only needed “in those instances where the element of
               duty has not already been declared or otherwise articulated.” Sharp,
               790 N.E.2d at 465; see also [Bartolini, 799 N.E.2d at 1053]. With
               respect to claims of liability against an owner for injuries sustained on the
               premises, the duties of a landowner are well established. “A landowner
               owes to an invitee or social guest ‘a duty to exercise reasonable care for his
               protection while he is on the landowner’s premises.’” Pfenning, 947
               N.E.2d at 406 (quoting Burrell v. Meads, 569 N.E.2d 637, 639
               (Ind. 1991)).


       Id. at 515 (emphases added, some citations and parentheticals omitted). The

       court then explained that,

               [t]o delineate this duty we have adopted the Restatement
               (Second) of Torts § 343 (1965): A possessor of land is subject to

       Court of Appeals of Indiana | Opinion 27A02-1407-CT-526 | March 25, 2015           Page 11 of 13
               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. Id.
               (quoting Burrell, 569 N.E.2d at 639-40).


               Within the contours of this duty, we have held that landowners
               “have a duty to take reasonable precautions to prevent
               foreseeable criminal acts against invitees.” [Western Golf, 712
               N.E.2d at 985]; see also Delta Tau Delta[, 712 N.E.2d at 973].


       Yost, 3 N.E.3d at 515 (emphases added). The court concluded by holding that,

       because Wabash College, the landlord, did not control the premises where the

       alleged crime occurred, it did not owe a duty to prevent foreseeable criminal

       acts against the plaintiff. Id. at 516. Thus, in Yost, our supreme court followed

       the rule set out in Sharp and Bartolini that, where a duty is well-established, a

       judicial redetermination under the Webb duty analysis is unnecessary. Id. And

       while the court in Yost cited to Western Golf and Delta Tau Delta, it did not do so

       in the context of the Webb balancing test.


[16]   When supreme court precedent is in apparent conflict, as it is between Kroger

       and Yost, we are bound to follow the court’s most recent pronouncement on the

       issue. Howse v. State, 672 N.E.2d 441, 444 (Ind. Ct. App. 1996), trans. denied.

       Thus, we follow our supreme court’s analysis in Yost and hold that the Webb

       balancing test does not apply here, where the duty owed by the Bar to its

       invitees is well-established. In particular, the Bar owed the Appellants a duty to

       Court of Appeals of Indiana | Opinion 27A02-1407-CT-526 | March 25, 2015   Page 12 of 13
       take reasonable precautions to protect them from foreseeable criminal attacks,

       and we need not make an independent judicial determination as to the

       existence of that duty here. Yost, 3 N.E.3d at 515; Bartolini, 799 N.E.2d at

       1052. Rather, the issue of the foreseeability of whether one patron of a bar

       would shoot others is more appropriately resolved as a question of fact in the

       context of the bar’s alleged breach of its duty. See, e.g., Winchell v. Guy, 857

       N.E.2d 1024, 1029 (Ind. Ct. App. 2006) (following Bartolini, 799 N.E.2d at

       1053-54).


[17]   Here, the Bar’s sole contention in its summary judgment motion was that it did

       not owe a duty to protect the Appellants from Carter’s criminal acts because

       they were not reasonably foreseeable. But, as our supreme court has held,

       reasonable foreseeability does not determine duty where, as here, the duty is

       well-established. See Yost, 3 N.E.3d at 515; Bartolini, 799 N.E.2d at 1053;

       Sharp, 790 N.E.2d at 465. The Bar owed the Appellants a duty to protect them

       from the foreseeable criminal acts of third parties. As such, the Bar cannot

       satisfy its burden to affirmatively negate the duty element of the Appellants’

       negligence claims. See Hughley, 15 N.E.3d at 1003. Thus, the trial court erred

       when it entered summary judgment in favor of the Bar, and we reverse and

       remand for further proceedings.


       Reversed and remanded for further proceedings.


       Mathias, J., and Bradford, J. concur.



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