                                                                        FILED
                                                                    Feb 28 2019, 9:00 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEES
Andrew Lucas                                             J. Thomas Vetne
Martz and Lucas, LLC                                     Janet G. Horvath
Valparaiso, Indiana                                      Jones Obenchain, LLP
                                                         South Bend, Indiana
Benjamin D. Fryman
Schwerd Fryman & Torrenga, LLP
Valparaiso, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Rose as Special                                  February 28, 2019
Administrator of the Estate of                           Court of Appeals Case No.
Rachelle L. Godfread, deceased,                          18A-CT-1654
Appellant-Plaintiff,                                     Appeal from the St. Joseph
                                                         Superior Court
        v.                                               The Honorable Steven L.
                                                         Hostetler, Judge
Martin’s Super Markets L.L.C.,                           Trial Court Cause No.
Martin’s Super Markets of                                71D07-1601-CT-15
Elkhart East L.L.C., Martin’s
Super Markets of Elkhart L.L.C.,
and Martin’s Super Markets Inc.,
Appellees-Defendants.



Robb, Judge.




Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019                       Page 1 of 19
                                 Case Summary and Issue
[1]   Rachelle Godfread was killed when a man began shooting inside a Martin’s

      Super Market (the “Store”) in Elkhart, Indiana. Anthony Rose, as special

      administrator of Godfread’s estate (the “Estate”), sued the Store1 for negligence.

      The parties filed cross motions for summary judgment. The trial court entered

      final judgment granting the Store’s motion for summary judgment and denying

      the Estate’s. The Estate appeals, raising two issues for our review that we

      consolidate and restate as one: whether the trial court erred in granting

      summary judgment to the Store on the issue of duty. Concluding the Store, as a

      matter of law, did not have a duty to Godfread either before or after the

      shooting began, we affirm.



                             Facts and Procedural History                                 2




[2]   In the late evening of January 15, 2014, Shawn Bair entered the Store and

      proceeded to walk around without a basket or a cart. Bair retrieved only a

      single bottle of soda but he did stop to ask two Store employees where another

      item was located. He primarily talked or texted on his phone as he walked the




      1
       The complaint named Martin’s Super Markets L.L.C., Martin’s Super Markets of Elkhart East L.L.C.,
      Martin’s Super Markets of Elkhart L.L.C., and Martin’s Super Markets Inc., as defendants.
      2
       The Estate’s appendix includes a complete transcript of the summary judgment hearing which is not
      necessary and is in fact, precluded by the Appellate Rules. See Ind. Appellate Rule 50(F) (“Because the
      Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties should not reproduce any
      portion of the Transcript in the Appendix.”).

      Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019                           Page 2 of 19
      aisles. Such behavior was not unusual for Bair, who had visited the Store on

      several other occasions.


[3]   Approximately forty minutes after his arrival, Bair pulled a gun from beneath

      his coat and shot and killed Krystal Dikes, a Store employee, as she stocked

      shelves in aisle 3. Jodi Beaver, another Store employee, came to investigate the

      commotion and found Dikes on the floor. As Beaver fled toward the front of

      the store, Bair shot at her but missed. Bair continued walking the store,

      stopping at the end of aisle 17. Godfread was at the opposite end of aisle 17

      with her back to Bair. Bair shot her in the back and she fell to the ground. As

      Godfread tried to sit up, Bair walked to her and shot her in the head at point-

      blank range, killing her. Sixty-four seconds had elapsed from the first shot.


[4]   Dan Zimmer, a Store employee working security/loss prevention that night,

      was at the Store’s entrance when he heard the first shot. As he ran toward the

      sound, Beaver rounded a corner running toward him, yelling, “He’s

      shooting[!]” Appellant’s Corrected Appendix, Volume 2 at 159. Zimmer

      turned back, ushered everyone at the front of the store outside, and called 911.

      Police arrived within two minutes and forty-three seconds of Bair’s first shot.

      Bair was shot and killed by police roughly five minutes after he had begun

      shooting.


[5]   The Estate filed this negligence action against the Store on January 13, 2016,

      alleging the shooting was foreseeable and that the Store had a duty to take

      action to protect Godfread after the shooting began. In March 2018, the Estate


      Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019    Page 3 of 19
filed a motion for summary judgment along with its designation of evidence,

seeking a determination that the Store had a duty to protect Godfread as a

matter of law because an active shooter situation was foreseeable. The Estate

designated evidence that in September 2012, the Store’s corporate office had

circulated to store managers, assistant store managers, closing managers, and

security officers a memo titled “Active Shooter Protocol” that was drafted by its

head of security and human resources department. The memo stated:


        Attached you will find a fact sheet, a couple of laminated pocket
        cards and a DVD on Active Shooter Protocol. Please review this
        material with your assistant store manager, all closing managers
        and anyone working security. Please have each person sign the
        bottom of this memo verifying they have reviewed the material.


        We hope this is information you will never need to use, but given
        current events across the country, much that you see on the
        news, we want to make these materials available to you. This is
        good knowledge for all of us to have in our work and personal
        lives as we visit public establishments.


Id. at 119. The fact sheet, pocket cards, and DVD themselves were not among

the evidence designated by the Estate. The Estate also designated the

deposition of Zimmer and John Kimmey, who was the closing manager the

night of the shooting. Zimmer stated that the Store did not provide him any

training for an active shooter situation and that he had not seen the pocket

cards or DVD distributed with the September 2012 memo. Kimmey also stated

that he had never seen the pocket cards or DVD and that on the date of the

shooting, he was not familiar with the term “active shooter.” Kimmey testified

Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019   Page 4 of 19
      at his deposition that to his knowledge, no announcements were made in-store

      about the situation as it unfolded. Kimmey encountered Bair in an aisle of the

      store after Godfread was shot, and Bair had his gun pointed at him when police

      entered and shot Bair.


[6]   In April, the Store filed its own motion for summary judgment arguing that the

      shooting was unforeseeable and therefore it did not owe Godfread a duty as a

      matter of law. After hearing argument on the parties’ respective motions, the

      trial court issued its order denying the Estate’s motion for summary judgment

      and granting the Store’s:


              When presented with a set of circumstances so clearly analogous
              to those of Goodwin [v. Yeakle’s Sports Bar & Grill, 62 N.E.3d 384,
              394 (Ind. 2016)], a trial court has an absolute and important
              obligation to follow established precedent. As a sudden shooting
              inside a neighborhood bar is not foreseeable as a matter of law, it
              must be held that a sudden shooting inside a supermarket is
              similarly not foreseeable as a matter of law.


              The shootings that occurred on that unfortunate evening of
              January 15, 2014, were terrible and tragic. However, based on
              the controlling precedent, the Court has no choice but to rule
              that, as a matter of law, [the Store] owned [sic] no duty to protect
              Ms. Godfread from being shot. [The Store’s] Summary
              Judgment Motion must therefore be granted, and [the Estate’s]
              Motion for Summary Judgment must be denied.


              ***


              The Court hereby grants the Summary Judgment Motion filed by
              [the Store], and denies [the Estate’s] Summary Judgment

      Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019      Page 5 of 19
              Motion. As the summary judgment granted in favor of [the
              Store] resolves all of the claims asserted in the Complaint, and
              there being no just reason for delay, this Order constitutes a final
              judgment of this Court.


      Appealed Order at 7. The Estate now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[7]   When reviewing the grant or denial of summary judgment, we apply the same

      test as the trial court: summary judgment is appropriate only if the designated

      evidence shows there is no genuine issue of material fact and the moving party

      is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Sedam v. 2JR

      Pizza Enterps., LLC, 84 N.E.3d 1174, 1176 (Ind. 2017). “A fact is ‘material’ if its

      resolution would affect the outcome of the case, and an issue is ‘genuine’ if a

      trier of fact is required to resolve the parties’ differing accounts of the truth, or if

      the undisputed material facts support conflicting reasonable inferences.”

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


[8]   Our review is limited to those facts designated to the trial court, T.R. 56(H),

      and we construe all facts and reasonable inferences drawn from those facts in

      favor of the non-moving party, Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind.

      2013). On appeal, the non-moving party carries the burden of persuading us the

      grant of summary judgment was erroneous. Hughley, 15 N.E.3d at 1003. A

      grant of summary judgment will be affirmed if it is sustainable upon any theory

      Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019         Page 6 of 19
       supported by the designated evidence. Miller v. Danz, 36 N.E.3d 455, 456 (Ind.

       2015).


[9]    The fact that the parties have filed cross motions for summary judgment does

       not alter our standard of review, as we consider each motion independently to

       determine whether the moving party is entitled to judgment as a matter of law.

       Berkshire Hathaway Homestate Ins. Co. v. Basham, 113 N.E.3d 630, 633 (Ind. Ct.

       App. 2018). Finally, although the trial court stated it was “not making findings

       of fact in deciding the motions,” Appealed Order at 2, the trial court

       nonetheless recited an extensive factual background for the case and engaged in

       a lengthy analysis and discussion leading to its decision, see id. at 2-3. A trial

       court’s order such as this offers insight into the rationale for the judgment and

       facilitates appellate review but is not binding on this court. Biedron v.

       Anonymous Physician 1, 106 N.E.3d 1079, 1089 (Ind. Ct. App. 2018), trans.

       denied.


                                     II. Summary Judgment
[10]   To prevail on the negligence claim, the Estate must show: 1) the Store owed a

       duty to Godfread; 2) the Store breached that duty by allowing its conduct to fall

       below the applicable standard of care; and 3) the Store’s breach of duty

       proximately caused a compensable injury to Godfread. Smith v. Walsh Constr.

       Co. II, LLC, 95 N.E.3d 78, 84 (Ind. Ct. App. 2018), trans. denied. The element of

       duty is generally a question of law to be determined by the court, whereas the

       elements of breach and proximate cause generally present questions of fact to be


       Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019       Page 7 of 19
       determined by the factfinder. Id. Thus, whether the Store owed a duty to

       Godfread is amenable to determination by summary judgment because it is a

       question of law. Id. at 85.


[11]   In its motion, the Estate contended “it was foreseeable that an active shooter

       situation would occur on the night in question and that [the Store’s] direct

       actions [or inactions] further created a duty to protect [Godfread].” Appellant’s

       Corrected App., Vol. 2 at 22. Specifically, the Estate argued that the Store

       contemplated an active shooter situation at least sixteen months before this

       incident when it issued its “Active Shooter Protocol” memo and therefore this

       shooting was foreseeable. Id. at 21. The Estate also argued that the Store’s

       action “or lack of appropriate action” in the sixty-four seconds between the first

       shot in the store and the shot that killed Godfread created a duty to protect

       Godfread, pursuant to Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016). Id. at 23. In

       its cross-motion, the Store argued the shooting inside its store was not

       foreseeable as a matter of law, comparing this case to Goodwin v. Yeakle’s Sports

       Bar and Grill, Inc., 62 N.E.3d 384, 392 (Ind. 2016). The Store further contends

       that once the shooting began, it had no additional duty to assist Godfread until

       it knew she had been injured, and by the time it knew of her injury, it was too

       late to help her.


[12]   Essentially, the parties’ arguments raise two separate time frames and distinct

       sets of facts as relevant for determining whether the Store owed a duty to

       Godfread: first, whether the Store had a duty to anticipate the shooting and

       take reasonable precautions to protect Godfread from harm before the shooting

       Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019      Page 8 of 19
       began, and second, whether the Store had a duty to protect Godfread after the

       shooting began. We address each particular situation in turn.


                                      A. Before the Shooting Began
[13]   The duty a landowner owes to an invitee is well-established by Indiana

       premises liability law: a landowner must exercise reasonable care for the

       invitee’s protection while the invitee is on the premises. Rogers, 63 N.E.3d at

       320. When a physical injury occurs as a result of a dangerous condition on the

       premises, the Restatement (Second) of Torts section 343 accurately describes

       the landowner-invitee duty.3 Id. at 322-23. However, injuries can also occur

       due to dangerous activities on the premises unrelated to the premises’ condition,

       and landowners owe their invitees the general duty of reasonable care under

       those circumstances, as well. Id. at 323. Specifically, landowners and business

       proprietors owe a duty to their business invitees to “use reasonable care to

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

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

       2003). The “critical element” in deciding whether a duty should be extended to




       3
           Restatement (Second) of Torts section 343 (1965) provides:

                  A possessor of land is subject to liability for physical harm caused to his invitees by a
                  condition on the land if, but only if, he
                  (a) knows or by the exercise of reasonable care would discover the condition, and should
                  realize that it involves an unreasonable risk of harm to such invitees, and
                  (b) should expect that they will not discover or realize the danger, or will fail to protect
                  themselves against it, and
                  (c) fails to exercise reasonable care to protect them against the danger.



       Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019                                 Page 9 of 19
       a case in which an invitee’s injury occurs due to some harmful activity on the

       premises is foreseeability. Rogers, 63 N.E.3d at 324.


[14]   Foreseeability as a component of duty is evaluated differently than

       foreseeability in the context of proximate cause: whereas foreseeability for

       purposes of proximate cause requires an evaluation of the facts of the actual

       occurrence, foreseeability for purposes of duty is a threshold determination that

       requires a more general analysis of the broad type of plaintiff and harm

       involved, without regard to the specific facts of the occurrence. Cosgray v.

       French Lick Resort & Casino, 102 N.E.3d 895, 900 (Ind. Ct. App. 2018). “[F]or

       purposes of determining whether an act is foreseeable in the context of duty we

       assess whether there is some probability or likelihood of harm that is serious

       enough to induce a reasonable person to take precautions to avoid it.”

       Goodwin, 62 N.E.3d at 392 (quotation omitted).


[15]   As the trial court noted, the facts of this case are similar to those in Goodwin;

       therefore, we begin our analysis with that case. There, one bar patron thought

       he overheard another patron make a disparaging remark about his wife. In

       anger, he pulled out a handgun and fired at the other patron, striking him and

       his two companions. All three survived and sued the bar for negligence,

       alleging the bar failed to provide security for its patrons, failed to search the

       patron for weapons, and failed to warn them that the patron was armed and

       dangerous. The bar filed a motion for summary judgment arguing the patron’s

       acts were unforeseeable and the bar therefore had no duty to anticipate and

       prevent the patron’s conduct. The trial court agreed and entered summary

       Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019      Page 10 of 19
       judgment on the bar’s motion. Noting this issue “has created confusion at

       every level of our judiciary[,]” the Court of Appeals reversed, declaring that

       “reasonable foreseeability is not part of the analysis with respect to the [b]ar’s

       duty.” 28 N.E.3d 310, 311 (Ind. Ct. App. 2015). Acknowledging that “[f]or a

       period of at least over the past two decades or so our case law has been less than

       perfectly lucid in explaining how a court determines whether a duty exists in the

       context of a negligence claim[,]”our supreme court granted transfer. 62 N.E.3d

       at 387.


[16]   After discussing the previous analytical frameworks Indiana courts had used for

       determining whether a landowner owes an invitee a duty to take reasonable

       care to protect the invitee from foreseeable third-party criminal attacks, the

       court pivoted away from those formulations and set forth a new standard for

       determining the reasonable foreseeability of harm. The court first noted, as we

       have done above, see supra ¶¶ 13-14, that in these kinds of cases, foreseeability is

       a component of duty as well as a component of proximate cause. Id. at 389.

       However, whereas the foreseeability component of proximate cause requires an

       evaluation of the facts of the actual incident, 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 391

       (quoting Goldsberry v. Grubbs, 672 N.E.2d 475, 479 (Ind. Ct. App. 1996), trans.

       denied). In other words, a court looks at foreseeability globally for the purpose

       of determining whether the category of negligent conduct at issue is sufficiently

       likely to result in the kind of harm suffered such that a duty—and thus


       Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019     Page 11 of 19
       liability—may be imposed on the negligent party. See id. (quoting Strahin v.

       Cleavenger, 603 S.E.2d 197, 207 (W.Va. 2004)). Once a duty and a breach have

       been established, a jury looks at foreseeability narrowly to determine whether a

       particular plaintiff’s injury was reasonably foreseeable in light of a particular

       defendant’s conduct. See id.


[17]   With that framework in mind, the court turned to the facts of the case and, after

       reviewing the designated evidence, determined:


               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. . . . [W]e 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 patron’s safety which is contrary to the public
               policy of this state. 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. 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 393-94 (citations omitted); see also Powell v. Stuber, 89 N.E.3d 430, 434

       (Ind. Ct. App. 2017) (holding no duty was owed by a bar to a patron where the

       broad type of harm was “the probability or likelihood of a criminal attack being

       extended when the victim confronts his assailants, placing himself at risk of

       Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019     Page 12 of 19
       further injury”), trans. denied; but see Buddy & Pals III, Inc. v. Falaschetti, No. 18A-

       CT-1811 at *3 (Ind. Ct. App. Jan. 18, 2019) (holding bar did have a duty to

       protect a bar patron from being assaulted by another “pugnacious patron” who

       had been ejected from the bar for fighting, because the bar, “through its

       bouncers, knew that [the ejected patron] was a loose cannon who was not

       taking his ejection well and was in a fighting mood” and this is the type of

       rowdy behavior that bar owners do routinely contemplate, distinguishing

       Goodwin), trans. pending.


[18]   Applying the Goodwin analysis to this case, the broad type of plaintiff here is a

       customer in a grocery store and the broad type of harm is the probability or

       likelihood of being shot by a third person while in the store. The Estate urges

       us to consider the “Active Shooter Protocol” memo the Store sent to its

       managers over a year before this incident as evidence that it had, in fact,

       contemplated an active shooter incident and this incident was therefore

       foreseeable. In Cosgray, the court determined a resort had no duty to protect a

       hotel guest from a criminal attack by an unknown assailant while she was in her

       room with her door intentionally left unlocked and ajar. 102 N.E.3d at 901.

       The hotel guest had asked the court to consider an “ongoing history of assaults

       and batteries and a prior reported rape” and the specific safety measures and

       warnings in place at the resort in its analysis of whether there was a duty. Id.

       The court rejected this “inclination to incorporate the totality of the

       circumstances into our consideration of the duty element” given that Goodwin

       specifically rejected that test. Id.; see also Goodwin, 62 N.E.3d at 389 (“[W]e now


       Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019        Page 13 of 19
       recognize that although the ‘totality of the circumstances’ test is useful in

       determining foreseeability in the context of proximate causation, it is

       inappropriate when analyzing foreseeability in the context of duty.”).

       Similarly, factoring the memo into the equation here is akin to evaluating the

       totality of the circumstances. We, like the court in Cosgray, decline to do so.4


[19]   Several cases have applied the Goodwin framework in situations where the

       landowner was aware of a threat of injury. In Certa v. Steak ‘n Shake Operations,

       Inc., 102 N.E.3d 336 (Ind. Ct. App. 2018), trans. denied, two groups of people

       butted heads outside a Steak ‘n Shake restaurant, continued being antagonistic

       to each other inside the restaurant, and ultimately came to blows outside the

       restaurant, resulting in one person being run over by a car. The injured person

       sued Steak ‘n Shake, which was granted summary judgment by the trial court.

       We identified the broad type of plaintiff as a restaurant patron and the broad

       type of harm as injury caused by a third party and, being “mindful that Steak ‘n

       Shake did not have to know the precise harm that its customer would suffer,

       only that there was some probability or likelihood of harm that was serious

       enough to induce a reasonable person to take precautions to avoid it[,]” we

       reversed the trial court’s grant of summary judgment because Steak ‘n Shake’s

       knowledge of events occurring on its premises gave rise to a duty to take

       reasonable steps to provide for the customer’s safety. Id. at 341; see also



       4
        We also note that holding otherwise—that is, that having a protocol to address dangerous situations
       automatically means the situation is foreseeable—would discourage landowners from having such a protocol
       and could possibly lead to greater harm as no one would be prepared to take appropriate action.

       Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019                        Page 14 of 19
       Hamilton v. Steak ‘n Shake Operations, Inc, 92 N.E.3d 1166, 1167 (Ind. Ct. App.

       2018) (reversing summary judgment for restaurant on issue of duty where

       despite restaurant employees observing escalating tensions between two groups

       of customers over a period of thirty minutes, they did not intervene or call

       security or police, and a customer was shot inside the restaurant), trans. denied.


[20]   Here, the shooter was in the store for forty minutes before he drew his gun, but

       he did nothing during that time to draw attention to himself or betray his

       intentions. He interacted normally with store employees and aroused no

       suspicion based upon what he was wearing or what he was doing. Zimmer

       noted that the shooter had come into the store on several prior occasions and

       would walk around for extended periods of time, leaving without incident.

       Therefore, seeing him on the security cameras raised no alarms for Zimmer.

       Unlike the situations in Certa, Hamilton, and Falaschetti, the Store had no

       knowledge of events on its premises that would lead it to contemplate that a

       regular customer acting in his customary manner would suddenly pull out a gun

       and shoot at employees and other customers. If a bar, which is inherently an

       establishment that “can often set the stage for rowdy behavior,” has no duty to

       a patron who was suddenly shot by another patron, Goodwin, 62 N.E.3d at 393,

       then it is difficult to see how a grocery store, which has no similar reputation for

       rowdiness or confrontation, could expect such harm to befall an invitee on its

       premises.


[21]   As the court noted in Goodwin, all criminal activity is foreseeable to a certain

       degree, see id. at 394, and it is a sad reality of this day and age that a shooting

       Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019      Page 15 of 19
       can occur anywhere at any time. But that does not mean that every store, yoga

       studio, and movie theatre is required to provide protection for its patrons at all

       times on the chance that a madman will choose to open fire in its public space,

       nor does it mean that proactively preparing for such a possibility in a broad way

       makes any given incident foreseeable. Thus, we agree with the trial court that

       although the shooting was “terrible and tragic[,]” Appealed Order at 7, as a

       matter of law, the Store had no duty to Godfread before the shooting began.


                                   B. After the Shooting Began
[22]   Next, the Estate claims that the Store’s duty once the shooting began should be

       analyzed pursuant to a case decided the same day as Goodwin: Rogers v. Martin,

       63 N.E.3d 316. In Rogers, the supreme court applied the Goodwin framework to

       a situation where two guests at a house party, Jerry Chambers and Paul

       Michalik, got into a fistfight with Brian Brothers, one of the hosts of the party,

       in the wee hours of the morning. Brothers woke Rachel Martin, his co-host,

       girlfriend, and the owner of the house, and asked for her help getting Chambers

       and Michalik to leave. Martin found Chambers with blood on his face and

       Michalik face down on the basement floor with his eyes closed. Because

       Michalik was breathing and had no visible injuries, Martin assumed he had

       passed out from drinking. Martin instructed Chambers to take Michalik to the

       hospital if he was concerned but did not call the police or dial 911 herself before

       going back to bed. Brothers and Chambers carried Michalik upstairs and soon

       after, police found Michalik dead on the front lawn. Michalik’s estate and

       Chambers sued Martin, claiming, in part, that she was negligent because she

       Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019    Page 16 of 19
       failed to render aid to Michalik after she saw him unconscious on the floor.

       The trial court granted Martin’s motion for summary judgment and on appeal,

       this court concluded summary judgment was improper, holding Martin owed

       Michalik a duty to render aid and questions of fact remained as to whether she

       had breached that duty. See Rogers v. Martin, 48 N.E.3d 318, 323-25 (Ind. Ct.

       App. 2015). Our supreme court granted Martin’s petition for transfer.


[23]   On transfer, the court separately addressed the “two particular situations”

       raised by this factual scenario. 63 N.E.3d at 326. As to the first situation—

       whether Martin owed a duty to take reasonable precautions to protect Michalik

       from the harm that occurred during the fight—the court held that it was not

       reasonably foreseeable to a homeowner that a party co-host would fight with

       and injure an invited guest and therefore, the homeowner was not required to

       take precautions to avoid this “unpredictable situation.” Id. As to the second

       situation—whether Martin owed a duty to protect Michalik from the

       exacerbation of his injuries after finding him unconscious in her home—the

       court held 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 therefore, homeowners have a duty to render assistance once they

       have knowledge of the injury. Id. at 327. Accordingly, the court held that

       summary judgment for Martin was improper on the negligence claim, while

       noting the ultimate question of whether Martin breached that duty and whether

       Michalik’s death was a natural and probable cause of Martin’s conduct were

       questions of fact to be decided by the fact-finder. Id.


       Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019   Page 17 of 19
[24]   Relying on Rogers, the Estate argues that the law “distinguishes between the

       initial, sudden, criminal act and what occurs after the landowner knows of the

       threat.” Corrected Brief of Appellant at 15. In making its argument, the Estate

       points in part to “admissions” by the Store that it owed Godfread a duty for the

       sixty-four seconds between the first shot and Godfread’s death. Id. at 16.

       Indeed, the Store acknowledged in its Memorandum in Support of Summary

       Judgment that it had an obligation “to call for help once it knew she’d been

       injured on the property.” Appellant’s Corrected App., Vol. 2 at 146. However,

       this is not an admission that it had a duty in this case for the sixty-four seconds

       after the shooting began, as it is qualified by the phrase “once it knew she’d been

       injured[.]” Id. (emphasis added). Instead, this is merely restating a general

       point the Store made earlier in its Memorandum when it observed, “For Rogers

       to apply, [it] must’ve had actual knowledge that Godfread was injured and then

       did nothing. . . . [The Store], in fact, had no idea Godfread had been shot until

       after the police arrived and ended the nightmare.” Id.


[25]   The duty in Rogers was not premised on Martin’s anticipation or knowledge of

       the fight, but on her knowledge of an injury caused by the fight. She then had a

       corresponding duty to protect against exacerbation of that injury in her home.

       See 63 N.E.3d at 327 (“Martin did, however, have a duty to protect Michalik

       after she found him lying unconscious”) (emphasis added). As stated in Hamilton,

       Martin’s “knowledge of the guest’s injury was crucial to assessing foreseeability,

       and in turn, to the determination that [she] owed a duty.” 92 N.E.3d at 1172.

       Here, the Store had knowledge for a brief period of time that a person in the

       Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019     Page 18 of 19
       store was shooting a gun but had no knowledge of Godfread’s injury until it

       was too late to offer her assistance. With no knowledge of Godfread’s injury,

       the Store had no duty to take action to prevent exacerbation of those injuries.



                                               Conclusion
[26]   Ultimately, it was not reasonably foreseeable for a grocery store to expect death

       by gunfire to befall a customer and therefore, the Store had no duty to Godfread

       prior to the shooting. And, because the Store did not have knowledge of

       Godfread’s injury in time to offer her assistance, the Store had no duty to

       protect her from exacerbation of her injuries. The trial court appropriately

       granted summary judgment to the Store and therefore, the trial court’s

       judgment is affirmed.


[27]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-1654 | February 28, 2019    Page 19 of 19
