                                                                     FILED
                                                                May 29 2018, 9:36 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEYS FOR APPELLANT                                ATTORNEYS FOR APPELLEE
James F. Olds                                          STEAK ‘N SHAKE
William E. Emerick                                     Thomas C. Hays
Mark R. Molter                                         Lisa M. Dillman
Stuart & Branigin LLP                                  Barath S. Raman
Lafayette, Indiana                                     Lewis Wagner LLP
                                                       Indianapolis, Indiana
ATTORNEY FOR AMICUS CURIAE
INDIANA TRIAL LAWYERS ASS’N                            ATTORNEY FOR AMICUS CURIAE
Gabriel A. Hawkins                                     DEFENSE TRIAL COUNSEL OF INDIANA
Cohen & Malad, LLP                                     Lucy R. Dollens
Indianapolis, Indiana                                  Jacob V. Bradley
                                                       Quarles & Brady, LLP
                                                       Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jeffery Certa,                                            May 29, 2018

Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          79A05-1708-CT-1873
       v.
                                                          Appeal from the Tippecanoe Superior
Steak ‘n Shake Operations Inc.,                           Court.
                                                          The Honorable Randy J. Williams,
Mikal Gillham, and Matthew                                Judge.
Hulett,                                                   Trial Court Cause No.
Appellees-Defendants.                                     79D01-1404-CT-50




Barteau, Senior Judge




Court of Appeals of Indiana | Opinion 79A05-1708-CT-1873 | May 29, 2018                  Page 1 of 12
                                         Statement of the Case
[1]   Appellant Jeffery Certa appeals the trial court’s entry of summary judgment in
                                                    1
      favor of Appellee Steak ‘n Shake. We reverse and remand.


                                                         Issue
[2]   Certa presents one issue for our review: whether the trial court erred in

      granting Steak ‘n Shake’s motion for summary judgment.


                                 Facts and Procedural History
[3]   The facts most favorable to Certa, the nonmovant, follow. In the early morning

      hours of May 4, 2013, Certa and his friends, Rick and Arlene Luse, arrived at

      the Steak ‘n Shake in Lafayette, Indiana. Certa and the Luses had been

      drinking. As they walked from the parking lot to the entrance of the restaurant,

      they observed a man and a woman arguing and saw the man push the woman

      against the wall. Certa stepped between the two people and told the man not to

      put his hands on the woman. Mikal Gillham was with the man and woman

      and witnessed Certa’s actions. She and Certa exchanged words when she

      suggested that Certa stay out of their affairs. Certa then entered the restaurant

      with the Luses and informed a Steak ‘n Shake employee that there was a

      physical altercation occurring outside the restaurant. The employee indicated




      1
       Although Defendants Mikal Gillham and Matthew Hulett did not participate in the proceedings below and
      have not participated in this appeal, they are parties on appeal. See Ind. Appellate Rule 17(A) (stating that a
      party of record in the trial court shall be a party on appeal).

      Court of Appeals of Indiana | Opinion 79A05-1708-CT-1873 | May 29, 2018                             Page 2 of 12
      that he would take care of the situation, and Certa and the Luses were seated at

      a table.


[4]   Gillham entered the restaurant to join her friends, Matthew Hulett and Lynn

      Huhn, who had already been seated. Like Certa and the Luses, Gillham and

      her friends had been drinking that evening. Gillham’s aunt, Ladonna Musik, is

      a Steak ‘n Shake employee and was the server on duty that night. Musik was

      aware that the two groups had been drinking. When Gillham entered the

      restaurant, she told Musik about her exchange with Certa, and she advised her

      aunt not to allow Certa and his friends into the restaurant because she “could

      tell that they were intoxicated” and she “just had a feeling that they were going

      to start an argument[ ] or a fight.” Gillham Depo., Appellant’s Appendix Vol.

      2, p. 152. Musik stated that everyone should calm down, eat their food, and

      mind their own business. Musik advised her manager to watch the two tables

      because there might be a conflict.


[5]   Gillham and her friends were seated at a table on the other side of the

      restaurant from Certa and the Luses. Although there was no conversation,

      yelling, or fighting between the two tables, the people at Gillham’s table were

      talking loudly, pointing, and gesturing at Certa’s table. From Certa’s table,

      Arlene was glaring at Gillham and her friends.


[6]   After about thirty to forty-five minutes, Gillham’s group finished eating, paid

      their bill, and exited the restaurant. Subsequently, the Luses paid their bill and

      exited. Certa was the last to pay and leave. As he was paying his bill, he told


      Court of Appeals of Indiana | Opinion 79A05-1708-CT-1873 | May 29, 2018   Page 3 of 12
      Musik, “If I go out there and that girl runs her mouth[,] the sh**t’s going to hit

      the fan.” Musik Depo., Appellant’s App. Vol. 2, p. 134. As Certa exited the

      restaurant, he saw that a woman in a car was reaching out of the open driver’s

      window and punching Arlene. The woman punching Arlene was later

      identified as Gillham. Certa ran back into the restaurant and told the

      employees to call the police. At some point, Certa noticed that Rick was also

      involved in an altercation outside the restaurant. Upon exiting the restaurant

      the second time, Certa went around to the back of the vehicle in which Gillham

      was sitting and attempted to get the license plate number. While Certa was

      standing behind the car, Hulett, who was seated in the front passenger seat of

      the car, reached over and put the car in reverse. The car backed over Certa,

      causing him injury.


[7]   Based on these events, Certa sued Steak ‘n Shake, Gillham, Hulett, and Allstate
                                                                                         2
      Property and Casualty Insurance Company for his injuries. In his complaint,

      Certa alleged that Steak ‘n Shake was negligent when it breached its duty to

      him by “[f]ailing to reasonably control its customers;” “failing to properly train

      its staff in customer control and handling intoxicated persons;” “failing to

      provide proper security;” and “failing to call the police in a timely manner.”

      Appellant’s App. Vol. 2, p. 221. Steak ‘n Shake filed a motion for summary

      judgment, which the trial court denied after an evidentiary hearing. Steak ‘n




      2
       In July 2017, the trial court ordered Allstate dismissed from this case with prejudice by stipulation of the
      parties.

      Court of Appeals of Indiana | Opinion 79A05-1708-CT-1873 | May 29, 2018                             Page 4 of 12
      Shake subsequently filed a motion to reconsider based upon two recent Indiana

      Supreme Court decisions. The parties acknowledged the trial court should

      consider Steak ‘n Shake’s motion to reconsider as a renewed motion for

      summary judgment, and, after an evidentiary hearing, the trial court granted

      summary judgment for Steak ‘n Shake. Certa now appeals.


                                    Discussion and Decision
[8]   Certa contends the trial court erred by granting summary judgment for Steak ‘n

      Shake. The purpose of summary judgment is to terminate litigation about

      which there can be no factual dispute and which can be determined as a matter

      of law. Sheehan Const. Co., Inc. v. Cont’l Cas. Co., 938 N.E.2d 685, 689 (Ind.

      2010). On appeal from a summary judgment, we apply the same standard of

      review as the trial court: summary judgment is appropriate only where the

      designated evidentiary matter shows there is no genuine issue as to any material

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

      v. Hood’s Gardens, Inc., 24 N.E.3d 421, 423-24 (Ind. 2015); see also Ind. Trial

      Rule 56(C). All facts and reasonable inferences drawn from those facts are

      construed in favor of the nonmovant. Sheehan Const. Co., Inc., 938 N.E.2d at

      688. Further, the trial court’s grant of summary judgment is clothed with a

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

      of demonstrating that the grant of summary judgment was erroneous. Auto-

      Owners Ins. Co. v. Benko, 964 N.E.2d 886, 890 (Ind. Ct. App. 2012), trans. denied.




      Court of Appeals of Indiana | Opinion 79A05-1708-CT-1873 | May 29, 2018   Page 5 of 12
[9]    Certa’s negligence claim against Steak ‘n Shake is grounded in premises

       liability. Indiana law is well established that a person entering upon the land of

       another comes upon the land as an invitee, a licensee, or a trespasser. Pickering

       v. Caesars Riverboat Casino, LLC, 988 N.E.2d 385, 389 (Ind. Ct. App. 2013). The

       status of the person entering the land of another determines the duty the

       landowner owes to him. Mohr v. Virginia B. Smith Revocable Tr., 2 N.E.3d 50, 54

       (Ind. Ct. App. 2014), trans. denied. Here, the parties agree that Certa was an

       invitee of Steak ‘n Shake, meaning that Steak ‘n Shake owed Certa a duty to

       exercise reasonable care for his protection. See Christmas v. Kindred Nursing Ctrs.

       Ltd. P’ship, 952 N.E.2d 872, 880 (Ind. Ct. App. 2011) (stating that landowner

       owes to invitee highest duty of care, which is duty to exercise reasonable care

       for invitee’s protection while he is on premises).


[10]   To prevail on a claim of negligence, a plaintiff must show: (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. Miller v. Rosehill Hotels, LLC, 45

       N.E.3d 15, 19 (Ind. Ct. App. 2015). Absent a duty, there can be no negligence

       or liability based upon a breach. Powell v. Stuber, 89 N.E.3d 430, 433 (Ind. Ct.

       App. 2017). Whether a duty exists is a question of law for the courts to decide.

       Podemski v. Praxair, Inc., 87 N.E.3d 540, 547 (Ind. Ct. App. 2017), trans. denied.


[11]   Two recent decisions by our supreme court, Goodwin v. Yeakle’s Sports Bar and

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

       2016), drive our decision in this case. In Goodwin, a patron at a bar became

       angry when he overheard comments he believed to be about his wife. He
       Court of Appeals of Indiana | Opinion 79A05-1708-CT-1873 | May 29, 2018    Page 6 of 12
       produced a handgun and shot three people. The three individuals who were

       shot sued the bar for negligence based on premises liability. The trial court

       granted summary judgment for the bar, and the three patrons appealed. This

       Court reversed the trial court’s decision.


[12]   On transfer, our supreme court affirmed the trial court’s judgment that the bar

       did not owe the patrons a duty to protect them. In doing so, the court

       acknowledged foreseeability as a component of the duty element of negligence

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

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

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

       occurrence.’” Id. at 390 (quoting Goldsberry v. Grubbs, 672 N.E.2d 475, 479

       (Ind. Ct. App. 1996), trans. denied and adopting analysis set forth therein

       because it provides more accurate framework for assessing foreseeability in duty

       context; expressly disapproving three-part balancing test in Webb v. Jarvis, 575

       N.E.2d 992 (Ind. 1991); and stating totality of circumstances test endorsed in

       Delta Tau Delta v. Johnson, 712 N.E.2d 968 (Ind. 1999) ill-suited to determine

       foreseeability in duty context). The court also declared that “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.” Id. at 392.


[13]   In applying this foreseeability analysis to the facts before it in Goodwin, the

       court stated that the broad type of plaintiff was a patron of a bar and the broad

       type of harm was the likelihood of a criminal attack, namely a shooting inside a

       Court of Appeals of Indiana | Opinion 79A05-1708-CT-1873 | May 29, 2018     Page 7 of 12
       bar. Id. at 393. The court reasoned that although bars can be host to rowdy

       behavior, bar owners would not routinely contemplate that one patron might

       suddenly shoot another. Id. at 393-94. Therefore, the court declined to impose

       a duty and held that a shooting inside a neighborhood bar is not foreseeable as a

       matter of law. Id. at 394.


[14]   On the same day it decided Goodwin, our supreme court also decided Rogers. In

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

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

       homeowner found one of the guests lying motionless on her basement floor.

       He died a short time later. The estate of the deceased guest and the other guest

       sued the homeowner for negligence. The homeowner filed a motion for

       summary judgment, which the trial court granted. The estate appealed, and

       this Court reversed. Transfer was sought and granted.


[15]   Our supreme court summed up the issue in Rogers as, “Where 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.” Id. at 323. Expounding on its determination in Goodwin, the court

       further stated:


               When foreseeability is part of the duty analysis, as in landowner-
               invitee cases, it is evaluated in a different manner than
               foreseeability in the context of proximate cause. Specifically, in
               the duty arena, foreseeability is a general threshold determination
               that involves an evaluation of (1) the broad type of plaintiff and

       Court of Appeals of Indiana | Opinion 79A05-1708-CT-1873 | May 29, 2018    Page 8 of 12
               (2) the broad type of harm. In other words, this foreseeability
               analysis 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 to be expected—without addressing the specific
               facts of the occurrence.
       Id. at 325 (citing Goodwin, 62 N.E.3d at 388-89). The court then applied this

       analysis to the facts to determine whether a homeowner has a duty to take

       precautions to prevent a co-host from fighting with and injuring (i.e., broad type

       of harm) a house-party guest (i.e., broad type of plaintiff). In answering this

       question in the negative, the court explained, “Although house parties can often

       set the stage for raucous behavior, we do not believe that hosts of parties

       routinely physically fight guests whom they have invited. Ultimately, it is not

       reasonably foreseeable for a homeowner to expect this general harm to befall a

       house-party guest.” Id. at 326.


[16]   The court was also presented with and determined a second issue concerning

       the homeowner’s duty in Rogers: whether the homeowner had a duty to protect

       the guest when she found him lying unconscious on her basement floor. This

       question the court answered in the affirmative. The court reasoned that

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

       injured on the premises could suffer from an exacerbation of those injuries” and

       for that reason, the homeowner owed the guest a duty to protect him from the

       exacerbation of his injury that occurred in her home. Id. at 327.


[17]   In this case, both parties acknowledge the applicability of Rogers and Goodwin to

       the situation, but they disagree about the ensuing result. Certa asserts that


       Court of Appeals of Indiana | Opinion 79A05-1708-CT-1873 | May 29, 2018   Page 9 of 12
       Steak ‘n Shake, as a 24-hour restaurant, had a reasonable duty of care to protect

       him from injury inflicted by intoxicated patrons when Steak ‘n Shake knew

       Certa and the patrons had engaged in a verbal altercation and was aware of the

       potential for escalation of the conflict.


[18]   Steak ‘n Shake, on the other hand, argues the trial court properly determined

       that Steak ‘n Shake did not owe a duty to Certa because it was not foreseeable

       that Certa, a restaurant patron, would be injured by an intoxicated patron in the

       parking lot of a restaurant that does not serve alcohol. Steak ‘n Shake

       maintains that in this case the broad type of plaintiff is a patron of a restaurant

       and the broad type of harm is a criminal attack from a third party.


[19]   Application of the broad type of plaintiff and harm analysis is not as narrow as

       Steak ‘n Shake suggests. In this analysis, foreseeability is the “critical inquiry,”

       and this inquiry acknowledges that the landowner-invitee duty to protect is not

       limitless; rather, some harms are so unforeseeable that a landowner has no duty

       to protect an invitee against them. Rogers, 63 N.E.3d at 320, 324. Yet, even

       given the “lesser inquiry” that is the broad plaintiff/harm analysis, the court

       considered what the landowner knew or had reason to know as it concerned the

       injured party in both Goodwin and Rogers when determining the foreseeability of

       these events. Goodwin, 62 N.E.3d at 390, 393 (quoting Goldsberry, 672 N.E.2d

       at 479). This approach is consistent with the RESTATEMENT (SECOND) OF

       TORTS § 344 cmt. f, which provides, “[s]ince the possessor [of land] is not an

       insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care



       Court of Appeals of Indiana | Opinion 79A05-1708-CT-1873 | May 29, 2018   Page 10 of 12
       until he knows or has reason to know that the acts of the third person are

       occurring, or are about to occur.”


[20]   For example, in Goodwin, the court acknowledged that bar owners do not

       “routinely contemplate that one bar patron might suddenly shoot another.” Id.

       at 394 (emphasis added). Use of the word “suddenly” indicates that this was an

       unexpected occurrence relative to the landowner/bar owner. Likewise, in

       Rogers, the court called the fight an “unpredictable situation” and stated that

       hosts of parties do not “routinely physically fight guests whom they have

       invited.” Id. at 326. Again, the court’s language reflects the unanticipated

       nature of the fight vis-à-vis the landowner/homeowner. Finally, with regard to

       the second issue of duty in Rogers, the court decided that the

       landowner/homeowner’s knowledge that the guest had been injured gave rise

       to a duty to protect the guest from exacerbation of the injury occurring in her

       home. Thus, what the landowner knew or had reason to know is a pivotal

       consideration in determining foreseeability which Steak ‘n Shake disregards in

       its analysis.


[21]   Accordingly, as did our supreme court in Goodwin and Rogers, we apply the

       broad type of plaintiff and the broad type of harm analysis and determine the

       foreseeability of the events with consideration of what Steak ‘n Shake knew or

       had reason to know. The broad type of plaintiff is a restaurant patron, and the

       broad type of harm is injury caused by a third party. In determining the

       foreseeability, we are mindful that Steak ‘n Shake did not have to know the

       precise harm that its customer would suffer, only that there was some

       Court of Appeals of Indiana | Opinion 79A05-1708-CT-1873 | May 29, 2018   Page 11 of 12
       probability or likelihood of harm that was serious enough to induce a

       reasonable person to take precautions to avoid it. See Goodwin, 62 N.E.3d at

       392. Steak ‘n Shake knew that a heated encounter that began outside the

       restaurant between two groups of intoxicated people spilled into the restaurant.

       The Steak ‘n Shake server was told by her niece that she feared a fight would

       ensue, and the groups exchanged dirty looks and finger pointing while inside

       the restaurant. In addition, the Steak ‘n Shake server specifically informed her

       manager that the two groups might be trouble. Further, Certa indicated to the

       Steak ‘n Shake server that he would retaliate if Gillham engaged him in the

       parking lot. Given these circumstances, we conclude that Steak ‘n Shake’s

       knowledge of the events on its premises in this case gave rise to a duty to take

       reasonable steps to provide for Certa’s safety as a patron of its establishment.


[22]   We caution that our determination is only of the existence of a duty in this

       situation. The issues of breach of that duty and proximate cause must still be

       determined by the trier of fact.


                                                 Conclusion
[23]   Thus, having determined that Steak ‘n Shake owed a duty to Certa, we

       necessarily conclude that the trial court erred in granting summary judgment in

       favor of Steak ‘n Shake.


[24]   Reversed and remanded.


       Riley, J., and Brown, J., concur.

       Court of Appeals of Indiana | Opinion 79A05-1708-CT-1873 | May 29, 2018   Page 12 of 12
