                                                                       FILED
                                                                  Mar 03 2020, 11:34 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals

                             IN THE
                                                                        and Tax Court




     Indiana Supreme Court
                Supreme Court Case No. 20S-CT-88

       Cavanaugh’s Sports Bar & Eatery, Ltd.
                     Appellant (Defendant below)

                                  –v–

                         Eric Porterfield
                       Appellee (Plaintiff below)


          Argued: October 22, 2019 | Decided: March 3, 2020

             Appeal from the Lake County Superior Court
                        No. 45D04-0710-CT-288
                 The Honorable Bruce D. Parent, Judge

      On Petition to Transfer from the Indiana Court of Appeals
                           No. 18A-CT-1814



                      Opinion by Justice Massa
            Chief Justice Rush and Justice Slaughter concur.
Justice Goff dissents with separate opinion in which Justice David joins.
Massa, Justice.

   Eric Porterfield sued Cavanaugh’s Sports Bar & Eatery for negligence
after a sudden fight in the bar’s parking lot at closing time left him
grievously injured. Cavanaugh’s moved for summary judgment, arguing
that it owed Porterfield no duty because the incident was unforeseeable.
After the trial court denied the motion, our Court of Appeals, in an
interlocutory appeal, affirmed.

   Landowners must “take reasonable precautions to protect invitees from
foreseeable criminal attacks.” Rogers v. Martin, 63 N.E.3d 316, 326 (Ind.
2016) (citation omitted). Ascertaining whether this duty extends to “the
criminal act at issue,” Goodwin v. Yeakle's Sports Bar & Grill, Inc., 62 N.E.3d
384, 389 (Ind. 2016), in a “particular scenario,” Rogers, 63 N.E.3d at 320,
hinges on the foreseeability of the attack, requiring “a general threshold
determination that involves an evaluation of (1) the broad type of plaintiff
and (2) the broad type of harm,” id. at 325. When considering these
categories, courts should determine whether the defendant knew or had
reason to know of any present and specific circumstance that would cause
a reasonable person to recognize the probability or likelihood of imminent
harm.

  Under the criminal act at issue in this particular scenario, Cavanaugh’s
owed no duty to protect its patron from the sudden parking lot brawl
when no evidence shows that Cavanaugh’s knew the fight was
impending. Because we continue to decline to impose a comprehensive
“duty on proprietors to afford protection to their patrons” from
unpredictable criminal attacks, Goodwin, 62 N.E.3d at 394, we reverse and
remand.


Facts and Procedural History
   One December night, Eric Porterfield and a friend visited two
nightspots, stopping at a strip club before heading to Cavanaugh’s Sports
Bar & Eatery. In the crowded but calm Cavanaugh’s, the two men
socialized with bartenders and had no disputes with anyone in the bar. At
the 3 a.m. closing time, the men, along with the rest of the bar’s clientele,


Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020           Page 2 of 13
left the bar for the parking lot. Halfway across the lot, they fought with
some other departing customers. The details of the incident are unclear,
but Porterfield sustained terrible injuries that rendered him permanently
blind.

   Porterfield sued the bar for negligence, alleging that Cavanaugh’s
breached its duty to protect him when the bar was “located in an area of
criminal activity,” was “known, or should have been known by
[Cavanaugh’s], to be frequented by persons with a propensity to engage
in criminal conduct,” and “has experienced criminal activity for years
prior to the attack on Porterfield.” Appellant’s App. Vol. II, pp. 55–56.
Cavanaugh’s moved for summary judgment, maintaining that it owed no
duty to Porterfield because it “cannot be held responsible for the
unforeseeable criminal acts” of third parties. Id., p.46. Porterfield,
however, argued that the fray was foreseeable because police were called
to Cavanaugh’s five times in the year preceding the clash to respond to
fights “in the parking area, between 3:00 a.m. and 3:30 a.m.” Id., p.116.

   Although it “did not consider” Porterfield’s evidence supporting that
the bar was historically dangerous, the trial court nevertheless denied
summary judgment. Id., p.33. To the trial court, “there simply were not
enough agreed material facts presented” for it to decide whether
Cavanaugh’s owed Porterfield a duty. Id., p.32. On interlocutory appeal,
Cavanaugh’s continued to argue that it had no duty to protect Porterfield
because it “did not see any taunting, arguing, or other contentious
communication between Porterfield and any other patrons while he was
in their establishment.” Appellant’s Br. at 16–17. But the Court of Appeals
affirmed, holding that “parking lot fistfights at closing time are generally
within the type of ‘rowdy behavior’ that bar owners should contemplate.”
Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, 123 N.E.3d 170, 174 (Ind.
Ct. App. 2019) (quoting Goodwin, 62 N.E.3d at 393–94), vacated. Indeed, the
panel went on, the “history of reported incidents” at Cavanaugh’s “gave it
reason to contemplate further such incidents in its own parking lot.” Id.

   Cavanaugh’s sought transfer, which we now grant. See Ind. App. R.
57(H)(2) (“The Court of Appeals has entered a decision in conflict with a
decision of the Supreme Court on an important issue.”); (H)(5) (Supreme



Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020           Page 3 of 13
Court “precedent is . . . in need of clarification . . . in some specific
respect.”).


Standard of Review
   Cavanaugh’s contends the trial court erred by denying it summary
judgment. At this stage, we use “the same standard as the trial court:
summary judgment is appropriate only when the designated evidence
shows no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.” Rogers, 63 N.E.3d at 320 (citing Ind. Trial
Rule 56(C)). To be sure, the parties contest the specifics of the parking-lot
encounter. But, as discussed below, that disagreement does not affect the
threshold legal question of whether Cavanaugh’s owed Porterfield any
duty. Because the designated evidence shows no genuine issue of material
fact, we must determine whether Cavanaugh’s was entitled to judgment
as a matter of law, construing all facts and reasonable inferences drawn
from those facts in favor of Porterfield as the nonmovant. Ryan v. TCI
Architects/Engineers/Contractors, Inc., 72 N.E.3d 908, 912–13 (Ind. 2017). We
review this legal question de novo, affording no deference to the trial
court’s resolution. Id.


Discussion and Decision
   Porterfield, under our premises liability jurisprudence, accuses
Cavanaugh’s of breaching its duty “to take reasonable precautions to
protect [him] from foreseeable criminal attacks.” Rogers, 63 N.E.3d at 326.
To determine whether this well-established duty extends to “the criminal
act at issue,” Goodwin, 62 N.E.3d at 389, in a “particular scenario,” Rogers,
63 N.E.3d at 326, the “critical inquiry” is to answer whether the criminal
attack was foreseeable, id. at 323–24. But foreseeability in this context—as
a component of duty—is evaluated differently than foreseeability in
proximate cause determinations: while the latter foreseeability analysis
requires a factfinder to evaluate the specific facts from the case, the former
“involves a lesser inquiry,” requiring a court, as a threshold legal matter,
to evaluate “the broad type of plaintiff and harm involved, without regard


Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020              Page 4 of 13
to the facts of the actual occurrence.” Goodwin, 62 N.E.3d at 393 (citation
omitted); see generally id. at 392 (rejecting a prior-used totality test because
it “focuses on the particular facts of the case rather than a broader
inquiry” and “is ill-suited to determine foreseeability in the context of
duty”). By focusing “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,” Rogers, 63 N.E.3d at 325, courts must “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,” not merely that harm
is “sufficiently likely,” Goodwin, 62 N.E.3d at 392 (quotation omitted).
“[B]ecause almost any outcome is possible and can be foreseen,” id., this
ensures “that landowners do not become the insurers of their invitees’
safety,” Rogers, 63 N.E.3d at 324 (quotation omitted).

   Just over three years ago, this Court adopted and applied these
principles in companion cases handed down on the same day. First,
because bar owners don’t “routinely contemplate that one bar patron
might suddenly shoot another,” we held that a bar owed no duty to a
patron who was unexpectedly shot by another. Goodwin, 62 N.E.3d at 394.
Expressly rejecting the injured patron’s request to consider prior police
reports and evidence of the character of the neighborhood, this Court
emphasized that foreseeability in the duty context is not to be “premised
on the facts of [a] particular case.” Id. at 392, 393. This historical
evidence—while appropriate to consider when assessing foreseeability at
the proximate-cause stage—was inappropriate to contemplate in the
“lesser inquiry” concerning duty. Id. at 393. Ultimately, no present
knowledge informed the landowner that any sudden harm was
impending, and the restaurant didn’t owe the patron a duty to protect him
from the “criminal act at issue.” Id. at 394, 389.

   And second, a homeowner owed not duty to protect a party guest
suddenly attacked by a co-host because hosts don’t “routinely physically
fight guests whom they have invited.” Rogers, 63 N.E.3d at 326. “Although
house parties can often set the stage for raucous behavior[,] . . . to require
a homeowner to take precautions to avoid this unpredictable situation
would essentially make the homeowner an insurer for all social guests’
safety.” Id. No duty to protect from the unexpected fight was owed to the


Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020             Page 5 of 13
house-party guest. But when the homeowner discovered that guest listless
in her basement, she owed a duty “to protect him from the exacerbation of
an injury occurring in her home” because she should have reasonably
expected that his injuries could worsen. Id. at 327. Unlike the other two
circumstances we examined that day, “reasonable persons would
recognize a duty” when the host in this “particular scenario” knew the
guest was injured. Id. at 327, 320.

   When evaluating the broad class of plaintiff and broad type of harm in
these cases, we acknowledged a key factor is whether the landowners
knew or had reason to know about any present and specific circumstances
that would cause a reasonable person to recognize the probability or
likelihood of imminent harm. See Goodwin, 62 N.E.3d at 385 (noting that,
just before the barroom shooting, all the parties were separately
“socializing” at “the small establishment”); Rogers, 63 N.E.3d at 319
(remarking that the homeowner observed that her co-host was, before
attacking a house-party guest, “just ‘being normal,’ and it was not obvious
to her that he had ‘a buzz going’” from drinking alcohol); id. (observing
that, before the guest was found dead outside her home, the homeowner
saw him “lying motionless on the basement floor with his eyes closed”). If
landowners had reason to know of any imminent harm, that harm was, as
a matter of law, foreseeable in the duty context. See, e.g., id. at 327 (holding
that it was foreseeable “that a house-party guest who is injured on the
premises could suffer from an exacerbation of those injuries”). In the years
since Goodwin and Rogers, courts have thoughtfully applied this
framework, finding duty only when landowners had this
contemporaneous knowledge. 1




1The dissent asserts that the Court “raises the bar of the question of foreseeability in the
context of duty by requiring contemporaneous evidence of imminent harm.” Post, at 1. Not
so, and not always. Instead, we recognize that this circumstance—current knowledge of
imminent harm—has driven the outcome of Court of Appeals cases applying our precedent
over the past three years. Concurrent knowledge of imminent harm is a sufficient, not
necessary, condition of foreseeability in the duty context.



Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020                         Page 6 of 13
   When an angry restaurant customer brandished a gun and shot another
patron, for example, a duty to protect arose when a late-night restaurant’s
staff presently knew of increasing hostilities between two groups.
Hamilton v. Steak ‘n Shake Operations Inc., 92 N.E.3d 1166 (Ind. Ct. App.
2018), trans. denied. Before the shooting, a waitress at the restaurant
watched as a member of one group, immediately upon entering, began
taunting a member of the other group about his perceived sexual
orientation. Id. at 1167. The waitress saw these taunts turn to threats,
witnessing the group hounding the targeted man to fight and blocking
“the door so no one could leave.” Id. She then saw the initiator run outside
and pound on the windows, yelling for the target of his ridicule “to come
outside and fight him.” Id. She told “the cook/manager of the
confrontation between the groups,” which “continued to intensify as the
two groups made their way toward the cash register.” Id. at 1167, 1168.
With both the waitress and cook/manager watching, a fight broke out near
the register, with the instigator drawing a gun and shooting a member of
the other group “point blank in the face.” Id. at 1168. Just as “the
landowner’s knowledge that the house-party guest had been injured gave
rise to a duty to take precautions to protect the injured guest from
exacerbation of those injuries” in Rogers, the restaurant’s knowledge of the
“escalating thirty-minute encounter that included verbal threats and
taunts, blocking of the exit, and pounding on windows in an effort to
incite a physical altercation” gave it “a duty to take reasonable steps to
provide for patron safety.” Id. at 1173.

   When another patron at a different location of the same restaurant
threw his car into reverse and purposefully backed over another customer
while driving, the Court of Appeals again found a duty because of the
restaurant’s contemporaneous knowledge of escalating tensions between
groups. Certa v. Steak ‘n Shake Operations Inc., 102 N.E.3d 336 (Ind. Ct. App.
2018), trans. denied. Before the collision, a waitress saw a heated encounter
between two groups of intoxicated people spill into the restaurant from
outside. Id. at 341. The waitress, who served both groups, was quickly told
by a relative in one of the parties that she feared the two sides would
fight. Id. The waitress then saw the groups exchange “dirty looks and
finger pointing while inside the restaurant.” Id. The waitress told “her


Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020          Page 7 of 13
manager that the two groups might be trouble,” with the customer who
eventually drove over the other later telling her that he “would retaliate”
if the dispute spilled back into the parking lot. Id. Because “what the
landowner knew or had reason to know is a pivotal consideration in
determining foreseeability,” the restaurant’s knowledge of the escalating
tensions between the particular groups “gave rise to a duty to take
reasonable steps to provide for” the injured patron’s safety. Id. at 341.

   When a drunken bar patron smashed another customer’s jaw in a bar’s
front parking lot, our Court of Appeals again found a duty owed when
the bar had reason to recognize the probability or likelihood of imminent
harm. Buddy & Pals III, Inc. v. Falaschetti, 118 N.E.3d 38 (Ind. Ct. App.
2019), trans. denied. Before the offending punch landed, the bar’s bouncers
knew the patron had imbibed “numerous alcoholic beverages over a
three-hour period.” Id. at 40. After he consumed these drinks, bouncers
saw the man shoved to the ground after challenging another man he saw
“talking to his fiancée.” Id. A bouncer then put the man “in a chokehold,”
from which he “forcibly tried to pull away” to confront the man who had
shoved him. Id. This bouncer, while clutching the man, heard him
describe himself as “a danger” to the bouncer and “everyone in his way.”
Id. Bouncers then ejected him through a back door, heaving him to the
pavement. Id. After a bouncer “punched him in the eye and slammed the
door” in his face as he tried to re-enter, the bouncers discussed that he
“might try to re-enter through the front entrance.” Id. Again, because
“‘what the landowner knew or had reason to know’” plays an important
role in determining foreseeability at this preliminary stage, the bar “had a
duty to take precautions to protect its other patrons . . . from further
violent attacks . . . [by a] loose cannon who . . . was not taking his ejection
well and was in a fighting mood.” Id. at 42–43 (quoting Certa, 102 N.E.3d
at 341).

   And when a college student sexually assaulted his inebriated
sophomore party guest in his fraternity house, the Southern District found
a duty owed when the “fraternity knew or should have known of [ ] prior
allegations” of sexual assault against the member. Doe v. Delta Tau Delta
Beta Alpha Chapter, No. 1:16-cv-1480, 2018 WL 3375016, at *4 (S.D. Ind. July
11, 2018). A year-and-a-half before this assault, another sophomore’s


Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020            Page 8 of 13
friend told four of this member’s fraternity brothers that he had sexually
assaulted her during a similar alcohol-fueled event while she was
“blacked out or possibly unconscious.” Id. at *2. These fraternity brothers
were bound, by their fraternity’s code of conduct, to “confront members
of this Fraternity who” violated the code, which compelled respecting
“the dignity of all persons” and barred the “sexual[ ] abuse [of] any
human being.” Id. at *3. Because “a defendant’s actual knowledge is an
appropriate consideration in determining foreseeability and the existence
of any duty owed,” the fraternity’s awareness, through its members, of the
accusations of sexual assault against this particular member gave it a duty
to protect the “invitee to a social fraternity event” from his assault at the
party. Id. at *4. Like the restaurants and bar discussed above, the fraternity
had reason to recognize the probability or likelihood of looming harm
when it hosted another spirited gathering and left the very member it
knew was accused of sexual assault unhindered to assault another
drunken party guest.

   But without notice of present and specific circumstances that would
cause a reasonable person to recognize the risk of an imminent criminal
act, our Court of Appeals has consistently held since Goodwin and
Rogers—until now—that landowners cannot foresee these sudden attacks.

   A bar had no reason to expect thieves in its parking lot crushing a
patron with their getaway car as he dashed after them. Powell v. Stuber, 89
N.E.3d 430, 434 (Ind. Ct. App. 2017), trans. denied. Before this chase,
without the bar’s knowledge, the thieves had punched the patron, taken
his keys and wallet, fled, returned to the scene, and tried to steal his car.
Id. at 431. Without knowing of any impending harm, the bar could not
foresee that “a criminal attack in [its] parking lot would be extended when
the victim pursue[d] the assailants.” Id. at 434. The bar owed the patron no
duty to protect him against this unforeseeable criminal attack. Id.

   A wrestling promotor had no reason to anticipate an “unknown
assailant,” without warning, attacking a spectator outside a rented
building at a county fairgrounds when she left during a match to retrieve
medication from her car. Jones v. Wilson, 81 N.E.3d 688, 692, 694–95 (Ind.
Ct. App. 2017), trans. not sought. When the promoter did not know of any



Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020          Page 9 of 13
waiting threat, the “random criminal attack . . . inflicted on [the spectator]
was not normally to be expected, and thus not foreseeable” Id. at 694–95.
The promoter owed the spectator no duty to protect her against this
unforeseeable criminal attack. Id. at 695.

   A hotel had no reason to predict one of its worker’s visitors
unexpectedly raping a hotel guest after she covertly propped open her
door and fell asleep on her bed. Cosgray v. French Lick Resort & Casino, 102
N.E.3d 895, 901 (Ind. Ct. App. 2018), trans. not sought. “[E]xamining the
broad type of plaintiff and the broad type of harm, without consideration
of the actual facts,” the Court of Appeals found the attack “in a room left
intentionally unlocked was not normally to be expected, and thus not
foreseeable” when the hotel had no notice of any present danger to its
guest when she secretly left her hotel room door ajar. Id. at 900–01. The
hotel owed the guest no duty to protect her against this unforeseeable
criminal attack. Id.

   A supermarket had no reason to envision a shooter with a concealed
weapon, after spending forty minutes perusing the store, suddenly
opening fire and killing a customer. Rose v. Martin’s Super Markets L.L.C.,
120 N.E.3d 234, 244 (Ind. Ct. App. 2019), trans. denied. Despite the “sad
reality . . . that a shooting can occur anywhere at any time, . . . it was not
reasonably foreseeable for a grocery store to expect death by gunfire to
befall a customer” when it had no warning of the coming tragedy. Id. at
242, 244. And, unlike in Rogers—where a homeowner had a duty to help a
guest once she knew about his injury—it was unforeseeable that the
critically injured customer could suffer further harm after being shot
when the store didn’t know about the “injury in time to offer her
assistance.” Id. at 244. The store owed the customer no duty to protect her
from exacerbation of her injuries and no duty to protect her from this
unforeseeable criminal attack. Id.

   And Cavanaugh’s had no reason to foresee a bar patron blinding
another during a sudden parking lot fight. Unlike the cases where courts
have found a duty when a landowner knew or should have known about
likely looming harm, Porterfield does not show that Cavanaugh’s had any
reason to believe the fight would occur. The skirmish occurred suddenly



Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020          Page 10 of 13
and without warning: for hours before the fracas, Porterfield and his
friend socialized with bartenders and had no animosity with any other
customers. Indeed, no evidence suggests any tension in the bar before the
fight. Cf. Hamilton, 92 N.E.3d at 1173 (holding fight foreseeable when
restaurant knew of “[a]n escalating thirty-minute encounter” between
specific groups); Certa, 102 N.E.3d at 340–41 (holding fight foreseeable
when restaurant knew “patrons had engaged in a verbal altercation and
was aware of the potential for escalation of the conflict”). And the bar had
no reason to think that Porterfield, his assailants, or any of their affiliates
were particularly suited to committing the specific criminal acts they
perpetrated. Cf. Buddy & Pals, 118 N.E.3d at 43 (holding fight foreseeable
when bar knew patron “was not taking his ejection [for fighting] well and
was in a fighting mood”); Delta Tau Delta, 2018 WL 3375016, at *4 (holding
sexual assault foreseeable when “fraternity knew or should have known
of the prior allegations” of sexual assault against particular member).

   By pointing to police runs made to the bar during the year before the
quarrel, Porterfield improperly substitutes evidence of the bar’s past
raucousness for contemporaneous knowledge of imminent harm. We
repeat, this type of historical evidence, while “appropriate in evaluating
foreseeability in the context of proximate cause,” should play no role
when we evaluate “foreseeability as a component of duty.” Goodwin, 62
N.E.3d at 393. Considering prior reports of the bar’s unruliness shifts our
common law jurisprudence back into a recently supplanted totality
analysis and risks fabricating a duty when harm is merely “sufficiently
likely.” Id. at 392 (quotation omitted). A landowner’s present knowledge,
however, more conclusively elevates the knowledge of risk to “some
probability or likelihood of harm,” id., allowing courts to continue to find
a duty when “reasonable persons would recognize it and agree that it
exists,” Rogers, 63 N.E.3d at 325.

   Although businesses must exercise reasonable care to protect their
patrons from foreseeable harms, they aren’t “the insurers of their invitees’
safety.” Id. at 324 (quotation omitted). Imposing a comprehensive “duty
on proprietors to afford protection to their patrons” from sudden and
unexpected criminal acts like the one committed in this “particular
scenario,” however, does just that. Goodwin, 62 N.E.3d at 394. Because we


Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020           Page 11 of 13
will not “abandon the notion of liability based on negligence and enter the
realm of strict liability,” id., Cavanaugh’s owed Porterfield no duty to
protect him against this unforeseeable criminal attack.


Conclusion
   Landowners must “take reasonable precautions to protect invitees from
foreseeable criminal attacks.” Rogers, 63 N.E.3d at 326. To determine
whether this duty, as a matter of law, extends to the criminal act at issue
in a particular scenario, the critical inquiry is to determine whether the
attack was foreseeable, considering the broad type of plaintiff, the broad
type of harm, and whether the landowner had reason to expect any
imminent harm. Because we hold that the criminal attack at issue here was
unforeseeable, the duty of Cavanaugh’s to protect Porterfield did not
extend to this particular scenario. We reverse and remand with
instructions for the trial court to enter summary judgment for
Cavanaugh’s.


Rush, C.J., and Slaughter, J., concur.
Goff, J., dissents with separate opinion in which Justice David joins.



ATTORNEYS FOR APPELLANT
Christopher D. Cody
Georgianna Q. Tutwiler
Hume Smith Geddes Green & Simmons, LLP
Indianapolis, Indiana

Michael E. Tolbert
Tolbert & Tolbert, LLC
Gary, Indiana

ATTORNEYS FOR APPELLEE
A. Leon Sarkisian
Sarkisian Law Offices
Merrillville, Indiana



Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020       Page 12 of 13
ATTORNEY FOR AMICUS CURIAE
INDIANA TRIAL LAWYERS ASSOCIATION
Gabriel A. Hawkins
Cohen & Malad, LLP
Indianapolis, Indiana




Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020   Page 13 of 13
Goff, J., dissenting.

   I respectfully dissent from the Court’s opinion granting summary
judgment to Cavanaugh’s. While I appreciate the majority’s thorough
review of recent caselaw concerning foreseeability in the context of duty, I
disagree with it in two primary respects. First, the majority adds new
requirements to our foreseeability inquiry, elevating the standard to
impose a duty. Second, the majority focuses on the particular facts of this
case, contrary to the standard provided by precedent. Both problems
cause issues on their own, but, more broadly, they combine to impede the
right to trial. I would resolve this case differently—focusing on the
general, common-sense nature of this foreseeability inquiry—and find that
Cavanaugh’s owed Porterfield a duty.


I. The majority’s approach elevates the standard for
   foreseeability as a part of duty and improperly
   focuses on the facts of the case, impeding the right
   to a trial.
   The majority raises the bar of the question of foreseeability in the
context of duty by requiring contemporaneous evidence of imminent
harm. See ante, at 6, 9. Foreseeability in this context “is a general
threshold determination that involves an evaluation of (1) the broad type
of plaintiff and (2) the broad type of harm.” Rogers v. Martin, 63 N.E.3d
316, 325 (Ind. 2016). We’ve called this determination “a lesser inquiry”
than that in the context of proximate cause. Goodwin v. Yeakle’s Sports Bar
and Grill, Inc., 62 N.E.3d 384, 390 (Ind. 2016) (citation omitted).
Contemporaneous evidence—such as escalating tensions—may inform
the lesser, threshold determination of foreseeability, but nothing about
this determination requires that evidence.1 In other words, the presence of
contemporaneous evidence can help show that a criminal act was
foreseeable, but the absence of that evidence should not be the
determining factor to conclude that a criminal act was unforeseeable.
Although the majority says it agrees with this point, ante, at 6 n.1, it backs
away from the point when it relies on the alleged absence of
contemporaneous evidence to find this fistfight unforeseeable, id. at 10–11.
More important than the problem with adding the contemporaneousness
requirement, though, is the fact that requiring an imminent harm conflicts
with the basic inquiry we undertake at this step. Our task is to determine
whether a harm is foreseeable. Rogers, 63 N.E.3d at 326; Goodwin, 62
N.E.3d at 388. But the majority’s new requirement that a harm be
imminent involves a tougher standard because foreseeable harms are not
always imminent. For example, it’s foreseeable that land in a floodplain
will flood, but such a flood may not be imminent during a drought.
Ultimately, the majority’s new requirements of contemporaneous
evidence and imminent harm elevate the bar for foreseeability in the
context of duty, making a lesser inquiry into something greater. And
while I agree with the majority that businesses should not become



1 In conducting this foreseeability analysis, we consider the defendant’s knowledge, see Rogers,
63 N.E.3d at 327, so it makes sense to consider (but not require) contemporaneous evidence of
observed escalation, see, e.g., Certa v. Steak ‘n Shake Operations, Inc., 102 N.E.3d 336, 341 (Ind.
Ct. App. 2018), trans. denied. It makes less sense to exclude from consideration, in defining the
general categories of plaintiff and harm, prior similar incidents, which show the defendant’s
knowledge in the same way that contemporaneous evidence does. But the majority and at
least one panel of our Court of Appeals interpret Goodwin and Rogers as prohibiting
consideration of prior similar incidents. Ante, at 11; Cosgray v. French Lick Resort & Casino, 102
N.E.3d 895, 901 (Ind. Ct. App. 2018), trans. not sought. However, I’m not as sure that Goodwin
and Rogers meant to throw the baby out with the bathwater. The rejected totality-of-the-
circumstances test “considers ‘all of the circumstances surrounding an event.’” Rogers, 63
N.E.3d at 325 (citation omitted). If by rejecting this test we rejected everything it included,
we’d have nothing left to consider. Thus, something must remain, which we’ve said is the
defendant’s knowledge. See id. at 327. Chief Judge Magnus-Stinson, in an opinion cited by
the majority, found that an alleged prior similar incident could have shown the defendant’s
knowledge, and I agree. Doe v. Delta Tau Delta Beta Alpha Chapter, No. 1:16-cv-1480-JMS-DML,
2018 WL 3375016, at *4 (S.D. Ind. July 11, 2018). This conclusion aligns with common sense: if
the same thing happens thirty days in a row, no one will be surprised when it happens on the
thirty-first day. See Rogers, 63 N.E.3d at 325 (citation omitted) (“[C]ourts will find a duty
where, in general, reasonable persons would recognize it and agree that it exists.”).


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insurers of their invitees’ safety, its new requirements take us too far
toward the harm at the other end of the spectrum: providing blanket
immunity to businesses for foreseeable harms that befall their invitees.
See Hamilton v. Steak ‘n Shake Operations, Inc., 92 N.E.3d 1166, 1172 (Ind. Ct.
App. 2018) (recognizing the goal of avoiding both ends of the spectrum),
trans. denied.

   The majority also relies on the particular facts of this case rather than
conducting the more general analysis our precedent requires. When we
look at the broad types of plaintiff and harm as part of the foreseeability
inquiry, we do so “without addressing the specific facts of the
occurrence.” Rogers, 63 N.E.3d at 325. See also Goodwin, 62 N.E.3d at 390–
91. Contrary to this instruction, the majority focuses on the facts
underlying this case. The majority emphasizes the lack of tension in the
bar, noting that “for hours before the fracas, Porterfield and his friend
socialized with bartenders and had no animosity with any other
customers.” Ante, at 11. And it concludes that nothing indicated that the
people involved in the fight “were particularly suited to committing the
specific criminal acts they perpetrated.” Id. In the end, the majority’s
focus on the specific facts of this case does what the majority sets out to
avoid: it “shifts our common law jurisprudence back into a recently
supplanted totality analysis.” Id.2

  In addition to the specific issues already discussed, the majority
opinion more broadly impedes the right to a trial. See Ind. Const. art. 1, §




2That being said, if we do consider the facts, they weigh against granting Cavanaugh’s
summary judgment. As the majority notes, at this stage we must “constru[e] all facts and
reasonable inferences drawn from those facts in favor of Porterfield as the nonmovant.” Ante,
at 4 (citing Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 908, 912–13 (Ind. 2017)).
Taken in that light, the designated evidence shows that, over the course of twenty or thirty
minutes when Cavanaugh’s had security personnel at their exit doors, a conversation between
Andrea Acevedo and Porterfield’s friend, Steven McPherson, escalated first into a shouting
match between McPherson and Porterfield and a group of men (with the men aggressively
approaching McPherson and encircling him) and continued to escalate until the fight broke
out. Even under the heightened standard applied by the majority, “reasonable persons would
recognize [a duty on Cavanaugh’s part] and agree that it exits.” Rogers, 63 N.E.3d at 325
(citation omitted). Thus, summary judgment is inappropriate.


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20 (“In all civil cases, the right of trial by jury shall remain inviolate.”). By
raising the bar for finding a duty, the majority’s opinion will lead to
summary judgments in close cases, impeding Hoosiers’ right to a trial.
And by focusing on the facts in determining whether a duty exists, the
majority takes from the factfinder at trial the ability to consider and weigh
facts. In Hughley v. State, we recognized the importance of trial when we
said, “Indiana consciously errs on the side of letting marginal cases
proceed to trial on the merits, rather than risk short-circuiting meritorious
claims.” 15 N.E.3d 1000, 1004 (Ind. 2014). Today, however, the majority
fails to do the same.


II. Based on our general, common-sense foreseeability
    inquiry, I would find a fight like this one to be
    foreseeable.
   I would conduct a different analysis than the majority and reach the
opposite result. We’ve said that “a landowner has a duty to take
reasonable precautions to protect invitees from foreseeable criminal
attacks,” and the extension of this duty to a situation like that presented in
this case turns on the foreseeability of the criminal act. Rogers, 63 N.E.3d
at 324, 326. “[T]his 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). Foreseeability in this context is meant to be a common-sense
inquiry. See id. (citations omitted) (“[C]ourts will find a duty where, in
general, reasonable persons would recognize it and agree that it exists.”);
Goodwin, 62 N.E.3d at 392 (citation omitted) (stating that this foreseeability
analysis asks “whether there is some probability or likelihood of harm
that is serious enough to induce a reasonable person to take precautions to
avoid it”).

   With these instructions in mind, I would find that the broad type of
plaintiff here is a bar patron, and the broad type of harm here is injury
resulting from a fistfight at the bar’s early morning closing time. While “a
shooting inside a neighborhood bar is not foreseeable as a matter of law,”

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Goodwin, 62 N.E.3d at 394, a closing-time fistfight is. We’ve already
recognized the common-sense notion that “bars can often set the stage for
rowdy behavior.” Id. at 393. Indeed, the fact that bouncers exist and the
commonplace depictions of barfights in popular culture, to name a couple
examples, prove the point. Similarly, I believe that most people would
agree that the combination of such rowdy behavior, alcohol, and late hour
(or early, depending on your perspective) sets the stage for potential
disagreements and physical altercations. Said differently, few people
would be surprised to learn that a run-of-the-mill fistfight broke out right
after a bar closed at 3 a.m. I believe that reasonable people would
recognize the unremarkable nature of a fistfight involving bar patrons at
the bar’s early morning closing time, and they would take precautions to
avoid it. See Rogers, 63 N.E.3d at 325; Goodwin, 62 N.E.3d at 392. Thus, I
would hold that Cavanaugh’s owed a duty to protect Porterfield from this
foreseeable fight, and I would affirm the trial court’s denial of the
summary judgment motion.

  Such a holding is more limited than the majority and Cavanaugh’s fear.
This holding’s precedential value would be limited to cases involving the
same classes of plaintiff and harm identified here; it would not impose a
duty on every bar in the state. And after a duty is found here, Porterfield
would still have to prove the other elements of negligence—breach and
proximate causation of a compensable injury—before Cavanaugh’s could
be held liable. See Rogers, 63 N.E.3d at 321; Goodwin, 62 N.E.3d at 386.
Proving these elements would not be an easy task. To the contrary, when
the facts are no longer viewed in Porterfield’s favor and when
Cavanaugh’s presents evidence of its security practices and actions here, a
jury could easily find that Cavanaugh’s was not responsible for
Porterfield’s injuries. Simply put, allowing this case to proceed falls well
short of imposing liability on Cavanaugh’s or any other bar in the state.

   For these reasons, I respectfully dissent.


David, J., joins.




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