ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Maggie L. Smith                                           Christopher A. Pearcy
Frost Brown Todd LLC                                      Theodore J. Blanford
Indianapolis, Indiana                                     Hume Smith Geddes Green &
                                                          Simmons, LLP
P. Gregory Cross                                          Indianapolis, Indiana
The Cross Law Firm
Muncie, Indiana

Michael D. Wilhelm                                                        FILED
Defur Voran LLP
                                                                     Dec 27 2016, 9:36 am
Fishers, Indiana
                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
Anthony W. Patterson                                                       and Tax Court

Peter L. Obremskey
John M. McLaughlin
Paul Kruse
Parr Richey Obremskey Frandsen & Patterson
LLP
Lebanon, Indiana

James R. Williams
Scott E. Shockley
Defur Voran LLP
Muncie, Indiana

Kenneth J. Allen
Robert D. Brown
Sarah M. Cafiero
Kenneth J. Allen Law Group, LLC
Valparaiso, Indiana

Matthew Boulton
Randall Juergensen
Kyle Lamar
Keller & Keller
Indianapolis, Indiana

Thomas Hastings
Jeff Oliphant
The Hastings Law Firm
Indianapolis, Indiana



Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016                  Page 1 of 23
Terry Monday
Monday Jones & Albright
Indianapolis, Indiana

Lee C. Christie
Lance D. Cline
Cline Farrell Christie & Lee, P.C.
Indianapolis, Indiana

David W. Stewart
Stewart & Stewart
Carmel, Indiana

W. Scott Montross
Michael S. Miller
Montross Miller Muller Mendelson &
Kennedy, LLP
Indianapolis, Indiana

Scott A. Benkie
Douglas A. Crawford
Benkie & Crawford
Indianapolis, Indiana

Rodney A. Tucker
Hausmann-McNally Law Offices
Indianapolis, Indiana

Vince P. Antaki
Reminger Attorneys At Law
Cincinnati, Ohio

Geoffrey G. Giorgi
Merrillville, Indiana

Jeffrey J. Stesiak
Pfeifer Morgan & Stesiak
South Bend, Indiana

Steven E. Willsey
Indianapolis, Indiana

George Hoffman, III
Hoffman Admire & Newcomb


Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016   Page 2 of 23
Franklin, Indiana

John LaDue
Timothy Curran
Ladue Curran & Kuehn LLC
South Bend, Indiana

Scott Starr
Shannon G. Starr
Starr Austen & Miller, LLP
Logansport, Indiana

ATTORNEYS FOR APPELLANTS, ALISHA
BRENNON AND THE ESTATE OF
CHRISTINA SANTIAGO
Kenneth J. Allen
Robert D. Brown
Sarah M. Cafiero
Kenneth J. Allen Law Group, LLC
Valparaiso, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Jill, Roeland, Jaymie and Jordyn                          December 27, 2016
Polet, et al.,                                            Court of Appeals Case No.
Appellants-Plaintiffs,                                    49A02-1510-CT-1631
                                                          Appeal from the Marion Superior
        v.                                                Court
                                                          The Honorable Timothy W.
ESG Security, Inc.,                                       Oakes, Judge
Appellee-Defendant.                                       Trial Court Cause No.
                                                          49D02-1111-CT-44823



Brown, Judge.

Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016          Page 3 of 23
[1]   Jill, Roeland, Jaymie and Jordyn Polet, et al., appeal the trial court’s grant of a

      motion for summary judgment filed by ESG Security, Inc. (“ESG”), and raise

      three issues which we consolidate and restate as whether the trial court properly

      granted summary judgment in favor of ESG. 1 We affirm. 2


                                          Facts and Procedural History

[2]   This appeal arises out of the collapse of the stage at the Indiana State Fair on

      August 13, 2011. The parties cite to a number of documents related to the

      agreement between the State Fair and Sugarland, the musical artist scheduled to

      perform that night. A document titled “SugarLand Production / Catering /

      Technical Rider” states:

               III. SECURITY


               A. SECURITY GUARDS




      1
       We held oral argument on October 25, 2016, in Indianapolis. We commend counsel for their well-prepared
      advocacy.
      2
        Alisha Brennon and the Estate of Christina Santiago (individually, “Brennon” and “the Estate,” and collectively
      with Roeland, Jaymie and Jordyn Polet, et al., the “Appellants”) also appeal, join in the arguments made by the
      other appellants, and raise three issues which we revise and restate as whether a final partial summary judgment on
      any claim for harm to the same-sex marital relationship between Brennon and Santiago was entered in favor of
      ESG, whether Brennon and the Estate may appeal the partial summary judgment in favor of Eric Milby and Milby
      Productions, Inc., to the extent it was deemed in favor of ESG, and, if so, whether the court erred in granting
      partial summary judgment. Because we affirm the grant of ESG’s motion for summary judgment, we need not
      address the arguments of Brennon and the Estate relating to harm to the relationship between Brennon and
      Santiago.

      Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016                          Page 4 of 23
        Purchaser will provide and pay for professional security guards
        for protection of Artist, Artist’s band and crew, from Load-In
        until Load-Out is completed.


        B. SECURITY MEETING
        It will be necessary to hold a security meeting prior to the
        opening of the doors to the public. Present at the meeting should
        be: Venue Representative, Purchaser, Head of Security, Tour
        Manager and Producer’s Security Representative. . . .


        C. STAGE GUARDS
        Purchaser will ensure access to the stage will be guarded by
        security at all times (with a minimum of 3 security people in front
        of the stage & 1 on each stage left and right during the
        performance) and only those persons designated by Producer will
        be allowed on stage during performance. Security personnel will
        not be allowed on stage during the performance or in the dressing
        rooms at any time.

        D. OVERNIGHT GUARDS
        If the situation requires Artist, band or crew to leave equipment
        at the venue overnight, security personnel will be needed from
        the official time the work ends until the official time work begins
        the following day.

        E. MEET AND GREET
        2 security guards will be required by the Artists during the Meet
        and Greet. Please make the specific arrangements for this at the
        pre-show Security Meeting.

        F. VEHICLE GUARDS
        Purchaser will be liable for any damage to Artist’s buses or trucks
        that are attributable to negligence on the part of Purchaser
        and/or Purchaser’s Representative should such damage occur
        while said buses or trucks are at the performance promises [sic]
        during the period from Load-In until Load-Out is completed. If

Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016   Page 5 of 23
               any of the vehicles must be parked away from the backstage
               entrance, a security person must be on call at the time and place
               that vehicle is parked.


               G. GUARD LOCATION & TIMES
               Dressing Rooms Area    2      from Load until Departure
               Stage                  5      from Doors until Patrons Clear
               Mix Position           2      from Doors until Patrons Clear
               Backstage Area         2      from Load In until Departure
               Video Projection Areas 1 per location from Doors until
               Patrons Clear


      Appellants’ Appendix at 2503-2505. 3


[3]   The “2011 Indiana State Fair Commission [] Rider” referenced Sugarland and

      the concert and provided:

               THE TERMS OF THIS ISFC RIDER WILL TAKE
               PRECEDENCE OVER ANY CONFLICTING TERMS
               CONTAINED IN THE ENGAGEMENT CONTRACT AND
               ITS ASSOCIATED RIDERS. THIS RIDER IS
               INCORPORATED BY REFERENCE AS PART OF THE
               ENGAGEMENT CONTRACT.




      3
        This document includes a space for signatures at the end, but it is not signed. A cover sheet is attached to
      the front of the document, which states:

               Numerous requests for “The Sugarland Contract” have been submitted. Because of the
               events of August 13, 2011, the customary execution of a final written contract and payment
               for services was not completed. While gathering and identifying documents responsive to
               this request, we have compiled many documents that provide insight into the negotiation of
               terms and are providing the linked documents to show the terms of the negotiation and
               rider.

               A final version of the 2010 contract has also been requested and is posted below.

      Appellants’ Appendix at 2502.

      Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016                        Page 6 of 23
              9. SECURITY – Indiana State Police provides a large contingent
              of officers to work during the Fair. There is also a detail of State
              Police assigned to each of the entertainment facilities; i.e. Pepsi
              Coliseum and ISF Grandstand. They are familiar with the State
              Fair audiences and shows, and are most cooperative.


      Id. at 2524-2525. 4


[4]   A document titled “SugarLand 2011 Tour Contract Rider” provides:

              XV. SECURITY
              Purchaser is solely responsible for providing security in
              connection with the Engagement. To this end, Purchaser shall
              provide and pay for adequate security for the protection of all
              persons and property in connection with the Engagement
              including without limitation, Producer (and respective agents,
              employees, contractors and equipment) and patrons. The
              foregoing is in addition to any other security requirements of
              Producer contained in the attached Artist Production Rider.


      Id. at 2539.


[5]   The State Fair had no written contract with ESG, but it hired ESG for the

      purpose of fulfilling the Fair’s security obligations.


[6]   The bike racks that formed and created the “Sugar Pit,” an area for patrons in

      front of the stage, was installed by Indiana State Fair Commission personnel at

      the request of Sugarland. Id. at 1351. The Sugar Pit had two access points. At




      4
       This document contains a place for signatures for the Executive Director of the Indiana State Fair
      Commission and the artist/contractor/client, but it is not signed.


      Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016                     Page 7 of 23
      approximately 6:30 p.m., Cynthia Hoye, the Executive Director of the Indiana

      State Fair, called for an opportunity “to get decision-makers together because it

      appeared” to her that a weather front was coming in close to show time. Id. at

      1234. ESG was not asked to attend the meeting nor did it attend. Around 8:00

      p.m., the meeting was held, and Director Hoye and the others present decided

      to delay the concert. Eric Milby then asked Sugarland to delay the show, but

      Sugarland did not want to do so. After further discussion, Milby went back to

      Sugarland, again asked for a delay, and then returned to Director Hoye and

      indicated that Sugarland refused the second request. At no time was ESG

      consulted in the decision of whether or not to delay the show.


[7]   ESG employees were identified by distinctive ESG uniforms, and those who

      were outside the Sugar Pit were to see whether anyone was standing on chairs

      outside the Sugar Pit and that no one was attempting to jump over the bike

      racks and enter the Sugar Pit. At some point, Stephen Blackburn, an ESG

      employee, roamed in and out of the Sugar Pit and went into it in order to assist

      anyone who might have had a question. Blackburn checked tickets of patrons

      and answered questions of people in the Sugar Pit as to where they could go to

      smoke or obtain something to drink. Blackburn directed some to an exit where

      they could go to smoke away from everyone. A couple of patrons asked

      Blackburn if they were going “to delay the concert, cancel the concert,” and he

      told them that “we had not been informed yet, but since they had reserved seats

      right there on the front row beside the Sugar Pit, that their best bet would be to




      Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016   Page 8 of 23
      go and stay somewhere where it was dry until they made the decision.” Id. at

      2215.


[8]   At some point, four ESG employees were standing between the Sugar Pit

      crowd and the stage. Adam Cesnik, an ESG employee, was to make sure that

      an aisle stayed clear of people wanting to stand closer and to “make sure that

      people, bodies, were in front of the seats not crammed together in an unsafe

      fashion.” Id. at 2306-2307. Barbara Dickens, an ESG employee, talked to three

      or four concert guests because they were asking about the weather and if there

      was going to be an evacuation or not. Dickens told them: “[A]s far as I knew,

      there was none; and if there was to be an evacuation, they would make an

      announcement.” Id. at 2601.


[9]   Around 8:40 p.m., Bob Richards gave the following announcement to the entire

      crowd:

              How are you? As you can see to the west, there are some clouds.
              We are all hoping for the best that the weather is going to bypass
              us, but there’s a very good chance that it won’t. So just a quick
              heads-up before the show starts, if there is a point during the
              show where we have to stop the show on stage, what we’d like to
              have you do is calmly move toward the exits and then head
              across the street to either the Champions Pavilion, the Blue
              Ribbon Pavilion, or the Pepsi Coliseum. And then once the
              storm passes and everything is safe, we’re going to try our best to
              come back and resume the show, which we have every belief that
              that’s going to happen. So please get ready because in just a
              couple of minutes we’re going to try to get Sugarland on the
              stage. Have a great show.



      Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016   Page 9 of 23
       Id. at 1706-1707.


[10]   Indiana State Police Captain Brad Weaver was surprised by the announcement

       and thought the announcement was going to be that the people should evacuate

       in an orderly fashion. Captain Weaver then said, “We’re calling this off right

       now.” Id. at 1463. Before that announcement was made, the stage collapsed

       due to a high wind. Paul Poteet later testified that the radar images that he was

       looking at that evening showed the line of storms approaching Indianapolis,

       and one of the exhibits referenced an outflow which is an area of wind that

       flows out of and ahead of thunderstorms, and that an outflow is not unusual in

       the spring or summer. Seven people were killed and numerous persons were

       injured.


[11]   On March 16, 2012, the estates of decedents, injured, and their families sued

       thirty-five defendants in ten consolidated causes of action alleging that their

       actions and inactions contributed to the deaths and injuries of the victims.


[12]   On April 17, 2015, ESG filed a motion for summary judgment alleging that

       there were no genuine issues of material fact that create a duty on the part of

       ESG, no breach of any purported duty, and no act or omission of ESG that

       proximately caused the Appellants any injury or damages. On June 19, 2015,

       the Appellants filed a memorandum in opposition to ESG’s motion for

       summary judgment.


[13]   On August 25, 2015, the court held a hearing. On September 14, 2015, the

       court granted ESG’s motion for summary judgment. On September 30, 2015,

       Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016   Page 10 of 23
       the court granted ESG’s motion for entry of final judgment and motion nunc

       pro tunc.


                                                    Discussion

[14]   The issue is whether the trial court properly granted summary judgment in

       favor of ESG on the Appellants’ claim of negligence. 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.

       Goodwin et al., v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).

       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. Id. 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 there is no genuine issue of material fact and

       that the moving party deserves judgment as a matter of law. Id.


[15]   Generally, in order to recover on a negligence theory, a plaintiff must establish:

       (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and

       (3) injury to the plaintiff resulting from the defendant’s breach. Rhodes v.

       Wright, 805 N.E.2d 382, 385 (Ind. 2004). A defendant is entitled to summary
       Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016   Page 11 of 23
       judgment by demonstrating that the undisputed material facts negate at least

       one element of the plaintiff’s claim. Countrymark Coop., Inc. v. Hammes, 892

       N.E.2d 683, 688 (Ind. Ct. App. 2008), trans. denied. “Absent a duty there can be

       no negligence or liability based upon the breach.” Knighten v. E. Chicago Hous.

       Auth., 45 N.E.3d 788, 791 (Ind. 2015) (quoting Kroger Co. v. Plonski, 930 N.E.2d

       1, 6 (Ind. 2010)).


[16]   The Appellants argue that ESG had a duty to exercise due care and points to

       King v. Northeast Security, Inc., 790 N.E.2d 474 (Ind. 2003), reh’g denied. The

       Appellants argue that we need not conduct an analysis under Webb v. Jarvis, 575

       N.E.2d 992 (Ind. 1991), reh’g denied, regarding whether a duty exists, based

       upon King, but asserts that such an analysis would reach the same result.


[17]   ESG argues that King is not instructive because it held that a security company

       can be liable for negligently carrying out its contractually assumed obligations

       and that, if the Appellants’ argument carries the day, then the security company

       in King would have a broader duty to protect against every possible hazard on

       the premises such as weather related hazards, premises hazards, or other

       external hazards outside of its contractually assumed obligations. ESG argues

       that the Webb test must be applied.




       Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016   Page 12 of 23
[18]   The Indiana Supreme Court recently discussed duty in Goodwin. 5 In that case,

       patrons injured after a shooting in a neighborhood bar sued the bar for

       negligence. 62 N.E.3d at 385. The trial court granted summary judgment in

       the bar’s favor, concluding it owed no duty to the patrons because the shooting

       was not foreseeable as a matter of law. Id. On appeal, the Indiana Supreme

       Court observed that it had previously reaffirmed that landowners have a duty to

       take reasonable precautions to protect their invitees from foreseeable criminal

       attacks in Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048 (Ind. 2003). Id. at

       388. In Paragon the Court stated:


               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. (quoting Bartolini, 799 N.E.2d at 1053). The Court held that “[t]his

       language understandably could be read to mean that the trial court’s sole

       responsibility with respect to the question of duty in a negligence action is

       simply to instruct the jury on the question—end of story. But such a reading is

       much too narrow.” Id. The Court stated that “[t]he very scope of the duty a

       landlord owes its invitees—to take reasonable precautions to protect invitees




       5
        We note that Goodwin was handed down on October 26, 2016, after the briefs were filed and after oral
       argument in this case.

       Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016                 Page 13 of 23
       from foreseeable criminal acts—necessarily calls for the court’s evaluation of

       foreseeability.” Id. at 388. The Court observed that in that case “foreseeability

       is not only a component of the proximate cause element of negligence, it is also

       a component of the duty element of negligence as well” and that “whether a

       duty exists is a question of law for the court to decide.” Id. at 389. The Court

       held:

                In 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.


       Id.


[19]   The Court observed:


                [I]n Goldsberry v. Grubbs, 672 N.E.2d 475 (Ind. Ct. App. 1996),
                [trans. denied,] the Court of Appeals discussed the Webb three-part
                balancing test,[ 6] noted its inconsistent application and results—
                even where the facts were very similar—and determined the
                reason for this anomaly was the failure to distinguish between




       6
         In Webb, the Court addressed whether a doctor owed a duty to a third party injured by the doctor’s patient
       and held that in order to determine whether a duty exists a three-part balancing test is employed: (1) the
       relationship of the parties; (2) the foreseeability of harm; and (3) public policy concerns. 575 N.E.2d at 995-
       997.

       Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016                       Page 14 of 23
               foreseeability in the context of duty and foreseeability in the
               context of proximate cause. The court explained:


                        [T]he foreseeability component of the duty analysis must
                        be something different than the foreseeability component
                        of proximate cause. More precisely, it must be a lesser
                        inquiry; if it was the same or a higher inquiry it would
                        eviscerate the proximate cause element of negligence
                        altogether. If one were required to meet the same or a
                        higher burden of proving foreseeability with respect to
                        duty, then it would be unnecessary to prove foreseeability
                        a second time with respect to proximate cause.
                        Additionally, proximate cause is normally a factual
                        question for the jury, while duty is usually a legal question
                        for the court. As a result, 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.


       Id. at 390 (quoting Goldsberry, 672 N.E.2d at 479 (internal citations omitted)).


[20]   The Court held that, “upon further reflection, we are of the view that Goldsberry

       provides the more accurate framework for assessing foreseeability in the duty

       context,” adopted it, and expressly disapproved of the contrary approach set

       forth in Webb. Id. at 391. The Court noted that in doing so it joined a number

       of jurisdictions that distinguish between the analytical framework used to

       determine foreseeability in the context of duty and that used to determine

       foreseeability in the context of proximate cause. Id. The Court held:




       Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016   Page 15 of 23
        [A]ddressing the distinction, the Supreme Court of Appeals of
        West Virginia captures the underlying rationale as follows:


                 [A] court’s task—in determining “duty”—is not to decide
                 whether a particular plaintiff’s injury was reasonably
                 foreseeable in light of a particular defendant’s conduct, but
                 rather to evaluate more generally whether the category of
                 negligent conduct at issue is sufficiently likely to result in
                 the kind of harm experienced that liability may
                 appropriately be imposed on the negligent party. The jury,
                 by contrast, considers “foreseeability” . . . [in] more
                 focused, fact-specific settings. . . .


        Strahin v. Cleavenger, 216 W.Va. 175, 603 S.E.2d 197, 207 (2004)
        (alterations and emphasis in original (quotation omitted)). This
        rationale is consistent with the observation in Goldsberry 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.” 672 N.E.2d at 479.


        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.” Satterfield [v. Breeding Insulation Co., 266
        S.W.3d 347, 367 (Tenn. 2008)].


        So, where does this leave the “totality of the circumstances” tests
        we endorsed in Delta Tau Delta [v. Johnson,] which requires an
        examination of “all of the circumstances surrounding an event,
        including the nature, condition, and location of the land, as well

Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016   Page 16 of 23
               as prior similar incidents”? 712 N.E.2d [968, 972 (Ind. 1999)].
               With its broad applicability and higher burden of proof this test is
               certainly appropriate as a useful guide to the fact-finder in
               determining foreseeability in the context of proximate cause.
               But, precisely because this test focuses on the particular facts of
               the case rather than a broader inquiry, it is ill-suited to determine
               foreseeability in the context of duty.


       Id. at 391-392.


[21]   The Court then turned to the merits of the case with the foregoing framework in

       mind and held:

               The broad type of plaintiff here is a patron of a bar and the harm
               is the probability or likelihood of a criminal attack, namely: a
               shooting inside a bar. But even engaging in a “lesser inquiry” we
               conclude that although bars can often set the stage for rowdy
               behavior, we do not believe that bar owners routinely
               contemplate that one bar patron might suddenly shoot another.
               To be sure, we doubt there exists a neighborhood anywhere in
               this State which is entirely crime-free. Thus, in the broadest
               sense, all crimes anywhere are “foreseeable.” But 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. See Delta Tau Delta, 712
               N.E.2d at 971. Further such a blanket duty would abandon the
               notion of liability based on negligence and enter the realm of
               strict liability in tort which “assumes no negligence of the actor,
               but chooses to impose liability anyway.” Cook v. Whitsell–
               Sherman, 796 N.E.2d 271, 276 (Ind. 2003). We decline to impose
               such liability here. In sum we hold that a shooting inside a
               neighborhood bar is not foreseeable as a matter of law.


       Id. at 393-394 (footnote omitted).


       Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016   Page 17 of 23
[22]   In its conclusion, the Court reiterated:

               In a negligence action, whether a duty exists is a question of law
               for the court to decide. And in those instances where
               foreseeability is an element of duty, this necessarily means the
               court must determine the question of foreseeability as a matter of
               law. When doing so the court is tasked with engaging in a
               general analysis of the broad type of plaintiff and harm involved
               without regard to the facts of the actual occurrence.


       Id. at 394.


[23]   With Goodwin in mind, we turn to the Appellants’ reliance on King. In that

       case, a school district entered into a contract with Northeast Security for

       security services at North Central High School. 790 N.E.2d at 477. The

       contract provided that the deputies were to perform the following duties:

               Provide exterior patrols at checkpoints for all North Central High
               School buildings by the means of three vehicle patrols occupied
               by three Marion County Special Deputies provided and
               employed by Northeast Security. These officers are trained
               personnel and understand the procedures of patrol. They will
               also be responsible for insuring all personnel that enter the
               premise[s] are possessing the proper identification. They are to
               be observant of any criminal activity which may occur in the
               parking lots and to the exterior of the building.


       Id. Nicholas King, a student, sued the school district and Northeast Security

       after being injured by others while waiting for a ride home. Id. A panel of this

       court affirmed summary judgment in favor of Northeast Security. Id. at 478.


[24]   On transfer, the Indiana Supreme Court held:

       Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016   Page 18 of 23
        Status as a third party beneficiary has been held sufficient to
        create tort liability to the beneficiary on the part of a party to the
        contract. Emmons [v. Brown, 600 N.E.2d 133, 134 (Ind. Ct. App.
        1992)]. We think, however, that it is not necessary that the
        plaintiff be a third party beneficiary in order to assert a claim.
        King’s claim is a tort claim for simple negligence. Whether or
        not King and his fellow students acquired rights under the
        agreement under contract law, we think it is clear that the
        purpose of the agreement was to provide security services for the
        school. We think it equally plain that the agreement was to
        protect all members of the public, including students, who were
        properly on the premises. Under the contract, Northeast had an
        obligation to the District. We see no reason why the contract
        requiring Northeast to “[p]rovide exterior patrols[,] insur[e] all
        personnel that enter the premise[s] are possessing the proper
        identification, [and] be observant of any criminal activity which
        may occur in the parking lots” would not include providing
        safety for students. R. at 53.


        The students, including King, are plainly among the persons who
        are properly on the premises and entitled to expect reasonable
        steps to be taken for their safety. The District in turn has an
        obligation to its students and others to take reasonable steps for
        their safety. We see no reason why negligent failure to carry out
        these assumed responsibilities should not give rise to liability to
        students who are injured as a result. There may be significant
        issues as to negligence and causation that remain in this case.
        But at this summary judgment stage, there is nothing inherent to
        the students’ status or relationship to the District or Northeast
        that prevents recovery. Nor is the class of persons who are
        properly on school premises so remote that liability to them
        should be precluded as a matter of law for injuries resulting from
        negligent performance of assumed responsibilities.


Id. at 485-486.


Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016   Page 19 of 23
[25]   The Indiana Supreme Court also held that “those specifically engaged in

       providing services undertaken for security services may well be found to have a

       higher standard of care than the public at large, whether or not they are on

       notice of specific activity at the site.” Id. at 487 (citing Rosh v. Cave Imaging Sys.,

       Inc., 26 Cal. App. 4th 1225, 32 Cal. Rptr. 2d 136, 139 (1994) (establishing the

       requisite standard of care of a security guard company through expert

       testimony), reh’g denied, review denied; 7 Erickson v. Curtis Inv. Co., 447 N.W.2d

       165, 170-171 (Minn. 1989) (noting that a security firm hired by a commercial

       parking ramp owner has a “duty to use that degree of care which a reasonably

       prudent professional security firm would use”)).


[26]   We do not find King determinative of the outcome in this case. We cannot say

       that King, which involved a security firm’s duty to protect a student on school

       grounds from a physical assault and a contract requiring the security firm to be

       observant of any criminal activity, requires that we find that a duty exists in the

       present case. The duty of Northeast in King to prevent injuries to students from

       other students is fundamentally different from a duty a security firm could have

       with respect to a stage collapse. The agreement here called for security

       personnel at various times and locations, none of which suggest ESG’s

       agreement contemplated a duty with respect to a stage collapse. The agreement

       here did not contain any provision which could place protecting patrons from a




       7
         The court in Rosh addressed a situation in which a manager terminated an employee, and the employee
       returned to the premises and shot the manager. 26 Cal. App. 4th at 1229.

       Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016                Page 20 of 23
       stage collapse caused by wind within ESG’s scope of work. We also note that

       ESG was not involved in the decision making process regarding the weather

       front. King is clearly distinguishable. See Star Wealth Mgmt. Co. v. Brown, 801

       N.E.2d 768, 774-775 (Ind. Ct. App. 2004) (holding that King did not require

       reversal of summary judgment granted to Lloyd Brown d/b/a A.S.A.P.

       Investigation and Security Services and distinguishing King in part by stating

       “[i]n its discussion of the negligence claims against the district and against

       Northeast, our supreme [court] began by citing the long-standing recognition

       that school authorities owe a duty to exercise reasonable care and supervision

       for the safety of the children under their control,” and that the King Court’s

       “subsequent discussion of Northeast’s duty was arguably linked to the duty of

       the school with which it had contracted”).


[27]   Here, foreseeability plays a role in the analysis of duty. Indiana has not

       addressed whether a security company has a duty related to stage collapses or

       weather. At least one case outside Indiana has addressed whether a security

       provider has a duty to warn regarding weather and specifically high winds, and

       held that it does not. See Stabnick v. Williams Patrol Serv., 390 N.W.2d 657, 658-

       659 (Mich. Ct. App. 1986) (affirming the grant of summary judgment to a

       security provider and holding that “[t]he key here is whether the gusty wind

       was a foreseeable danger about which the defendant had a duty to warn the

       plaintiff,” and that “[w]ind is a natural unpredictable condition. Whether wind




       Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016   Page 21 of 23
       becomes dangerous is unpredictable and unforeseeable. Thus, there can be no

       duty to warn the plaintiff of some unforeseeable danger.”), appeal denied. 8


[28]   The Appellants cite Erickson v. Curtis Inv. Co., 447 N.W.2d 165 (Minn. 1989),

       and Vanesko v. Marina Dist. Dev. Co., LLC, 38 F. Supp. 3d 535 (E.D. Pa. 2014),

       for the idea that a security firm has a duty to exercise due care. These cases do

       not specifically address the issue of a duty related to stage collapses or weather.

       See Erickson, 447 N.W.2d at 166 (addressing whether an operator of a

       commercial parking ramp owes a duty to a ramp customer to protect her from a

       trespassing rapist and holding that whether a duty is imposed depends on the

       foreseeable risk involved); Vanesko, 38 F. Supp. 3d at 537 (addressing injuries of

       a concertgoer that occurred when something or someone struck him from

       behind and holding that it was reasonable, fair, and in the interest of public




       8
         Some courts have addressed the duty to warn of weather generally. See Caldwell v. Let the Good Times Roll
       Festival, 717 So.2d 1263, 1273 (La. Ct. App. 1998) (“Certainly, the fact of the extremely strong and turbulent
       winds accompanying the storm, combined with the fact that those attending the public festival were sheltered
       underneath a tent which did not withstand the power of the winds, combined to create some danger to the
       public crowd. Likewise, those who gratuitously or for remuneration produce a public festival owe some duty
       to the public to provide, as is urged here, some ‘safety and security,’ but that duty, being owed to the public
       by all who serve the public (fire and police personnel), may not extend to protect the public against all
       possible risks of injury, especially when the injury stems from an extraordinary, rare and reasonably
       unexpected weather occurrence or circumstance.”), writ denied; Dykema v. Gus Macker Enterprises, Inc., 492
       N.W.2d 472, 475 (Mich. Ct. App. 1992) (addressing a situation in which a plaintiff, while running for shelter,
       was struck by a falling tree limb and paralyzed at a basketball tournament, affirming an order granting
       defendants’ motion for summary disposition, and holding that “[e]ven if plaintiff had succeeded in
       establishing that a special relationship existed between himself and defendant, we are unable to find
       precedent for imposing a duty upon an organizer of an outdoor event such as this basketball tournament to
       warn a spectator of approaching severe weather,” that “such a duty has not been recognized in Michigan,
       and, apparently, no other jurisdiction has constructed one,” and observing that the Tennessee Supreme Court
       recently held that a state-owned golf course does not owe, as part of its duty of reasonable care, a duty to
       warn its patrons of the dangers of lightning), appeal denied.

       Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016                     Page 22 of 23
       policy to impose a duty on a security company to protect a concertgoer from

       foreseeable injury). Thus, we do not find these cases instructive.


[29]   With the Goodwin framework in mind, we observe that the broad type of

       plaintiff here is a patron of an outdoor concert, and the harm is the probability

       or likelihood of a stage collapse caused by a strong wind. We do not believe

       that security firms routinely contemplate that a stage might collapse. Indeed,

       Dr. Randall Davidson, the Appellants’ expert, testified that it would be

       reasonable for a security company like ESG at an event like this to expect that

       the stage was properly constructed and inspected and that ESG did not have

       any knowledge or reason to believe that the stage could not withstand an

       Indiana storm. In sum, we hold that a stage collapse due to high wind is not

       foreseeable as a matter of law. Accordingly, we cannot say that ESG had a

       duty relating to the stage collapse. 9


                                                       Conclusion

[30]   For the foregoing reasons, we affirm the trial court’s grant of summary

       judgment in favor of ESG.


[31]   Affirmed.


       Robb, J., and Mathias, J., concur.




       9
           Appellants do not argue that ESG breached any duty following the stage collapse.


       Court of Appeals of Indiana | Opinion 49A02-1510-CT-1631 | December 27, 2016           Page 23 of 23
