Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                            FILED
regarded as precedent or cited before any                Jan 29 2013, 9:30 am
court except for the purpose of
establishing the defense of res judicata,                        CLERK
                                                               of the supreme court,
collateral estoppel, or the law of the case.                   court of appeals and
                                                                      tax court




ATTORNEYS FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

STEVEN J. SERSIC                                JULIE R. MURZYN
KEVIN C. SMITH                                  RANDALL J. NYE
Smith Sersic                                    O’Neill, McFadden & Willett
Munster, Indiana                                Dyer, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RAY ORTEGA,                                     )
                                                )
       Appellant-Plaintiff,                     )
                                                )
              vs.                               )       No. 45A03-1205-CT-219
                                                )
SUSKO CORPORATION, INC.,                        )
D/B/A OUR PLACE,                                )
                                                )
       Appellee-Defendant.                      )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Jeffrey J. Dywan, Judge
                             Cause No. 45D11-1011-CT-205



                                     January 29, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
       In this case, an unknown individual fired a gun through the rear door of a tavern.

A bullet struck Ray Ortega, the plaintiff in this case, and another individual. Ortega filed

suit against Susko Corporation, d/b/a/ Our Place (Our Place), claiming that Our Place was

liable in damages for the injuries he sustained from his wound because Our Place

breached its duty to protect him from the foreseeable shooting.

       Ortega presented his case to a jury, and at the close of his case-in-chief, Our Place

moved for judgment on the evidence, asserting that Ortega failed to present sufficient

evidence to support an inference that the shooting was foreseeable. The trial court

granted Our Place’s motion, observing, among other things, that Ortega failed to produce

any evidence that Our Place should have anticipated that an unknown person would fire a

gun through the open rear door of the tavern. We affirm the trial court’s judgment.

                                          FACTS

       Our Place is a small neighborhood bar in North Hammond that is owned and

managed by Michael Susko. The customers of Our Place mostly live in the vicinity and

are retirees. Susko works approximately six hours every day and employs one bartender

per shift.

       Susko routinely kept both the front and back doors of Our Place propped open

during nice weather. On April 30, 2010, Our Place opened at 3:00 p.m., and Susko

worked until midnight. As Susko was preparing to go to the tavern’s office to sleep, he

asked someone to check the door and told the bartender, Rachel Szymborski, to get him if

she needed anything.

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      At approximately 1:45 a.m., Ortega walked into the tavern. About fifteen other

customers were at the bar, and “everyone seemed fine.” Tr. p. 300. Ortega had been in

Our Place on prior occasions and was a member of a dart team. Ortega had never

witnessed any violence or seen anything that he considered to be a threat.

      After staying at the bar for about an hour, Ortega went to the restroom and then

planned to leave.    Ortega noticed that some of the patrons were arguing, but the

disagreement never became physical. Ortega did not see any weapons, and there did not

seem to be any threat of violence.

      However, at approximately 2:30 a.m., someone fired multiple gunshots into the

tavern from outside the back door. Ortega was shot as he exited the restroom. Another

individual was shot while sitting on a barstool.      At some point, Ortega heard the

bartender say that she saw someone stick a hand through the back door and open fire.

Susko was asleep in the office when the shooting occurred.

      A subsequent police investigation could not determine who shot the two men or

the motive for the shooting. Susko had no idea why someone would randomly and

unexpectedly commit such an act.        Susko was unaware of any shootings in the

neighborhood prior to this incident, and he had no personal knowledge of anyone using

or threatening to use a gun at the tavern before the incident. There also had been no

previous problems associated with back door access to the tavern.

      On April 24, 2010, Hammond Police Chief Brian Miller received a tip that there

was going to be a “gang party” at Our Place. Tr. p. 37. Chief Miller did not warn Susko

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about this information, and there is no evidence that a gang party ever took place. There

was no showing that Ortega was a gang member or that the shooting was gang related.

No motive for the shootings was ever established, and the gunman was never

apprehended.

       Susko was aware of only one fight at the tavern “a long time ago” that involved an

incident where he was punched while attempting to call the police. Id. at 207-08, 212,

246. One of the customers had been a “regular” at Our Place since 2008, and she had

never seen any fights or other acts of violence. Id. at 249.

       On September 20, 2010, Ortega filed a complaint against Our Place. Ortega

claimed, among other things, that he was a business invitee of the tavern. As a result,

Ortega claimed that Our Place owed him and all business invitees a duty of care to

provide a reasonably safe environment. Ortega alleged that when he was shot, Our Place

breached this duty by failing to provide proper security to protect its customers and by

failing to protect him from a reasonably foreseeable criminal assault that resulted in his

injuries. Ortega claimed that Our Place’s negligence and breach of duty were the direct

and proximate cause of his injuries.

       A jury trial commenced on February 21, 2012. After Ortega presented his case-in-

chief, Our Place moved for a judgment on the evidence under Indiana Trial Rule 50,

claiming that Ortega failed to present sufficient evidence to support an inference that the

shooting was foreseeable. The trial court granted Our Place’s motion and issued an

order, which provided:

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       There is no evidence of prior shootings, or threats of shootings at the
       Defendant’s tavern. There is no evidence that the shooter was in the tavern
       on the night in question, or at any other time. There is no evidence that the
       Defendant had any knowledge that the shooter was anywhere near the
       tavern. There is no evidence that the shooter had any relationship
       whatsoever with the shooting. There is no evidence that the tavern had any
       knowledge that the shooter had a gun, or that the tavern had even the
       opportunity to learn that the shooter had a gun. There is no evidence that
       the shooter had made threats to the Plaintiff or anyone else in the tavern
       before the shooting, or had acted in such manner as to put a reasonable
       person on notice of the potential for violence. There is no evidence that the
       Plaintiff, or any other customer in the tavern, felt that the shooter was a
       danger to themselves or anyone in the tavern, or that such concerns were
       made known to the Defendant.

       Considering this evidence as required under the standard to be applied
       under TR 50, the evidence fails to demonstrate or to support an inference
       that this shooting was foreseeable to Susko Corporation. Judgment must be
       entered for the Defendant and the case taken from the jury’s consideration.

Appellant’s App. p. 5.

       Ortega now appeals.

                             DISCUSSION AND DECISION

                                  I. Standard of Review

       When challenging the grant of a motion for judgment on the evidence, our

standard of review is the same that governs the trial court in making its decision. Peru

Sch. Corp. v. Grant, 969 N.E.2d 125, 132 (Ind. Ct. App. 2012), trans. denied. Judgment

on the evidence is properly granted when all or some of the issues in a case tried before a

jury are not supported by sufficient evidence. Id. A party may move for such judgment

on the evidence after the plaintiff’s case in chief or after all the evidence in the case has

been presented and before judgment. Ind. Trial Rule 50(A). We will examine only the

                                             5
evidence and the reasonable inferences that may be drawn therefrom that are most

favorable to the non-movant, and the motion should be granted only where there is no

substantial evidence to support an essential issue in the case. Peru Sch. Corp., 969

N.E.2d at 132. If there is evidence that would allow reasonable people to differ as to the

result, judgment on the evidence is improper. Id.; see also T.R. 50(A).

                                 II. Ortega’s Contentions

       Ortega argues that the trial court erred in granting Our Place’s motion for

judgment on the evidence because Ortega contends that he presented ample evidence that

Our Place knew, or should have known, that the shooting was foreseeable. Thus, Ortega

argues that the trial court’s function “was simply to instruct the jury and allow them to

decide whether the defendant has breached its duty to . . . [him].” Appellee’s Br. p. 6.

       We note that although proprietors owe a duty to use reasonable care to protect

business invitees from injuries that are caused by other patrons and guests on the

premises, our Supreme Court has held that this duty “only extends to harm from conduct

of third persons that, under the facts of a particular case, is reasonably foreseeable to the

proprietor.” Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1052 (Ind. 2003).

Additionally, while reasonable foreseeability is ordinarily a question of fact for the jury

to decide, in the context of duty, which is a question of law, reasonable foreseeability is

determined by the court. Kroger v. Plonski, 930 N.E.2d 1, 7 (Ind. 2010).

       Foreseeability is determined by application of the totality of the circumstances

test, where “a Court considers all the circumstances surrounding an event including the

                                             6
nature, condition, and location of the land, as well as prior similar incidents to determine

whether a criminal act was foreseeable.” Delta Tau Delta v. Johnson, 712 N.E.2d 968,

972 (Ind. 1999). A substantial factor in the determination of duty is the number, nature,

and location of prior similar incidents, but the lack of prior similar incidents will not

preclude a claim where the land owner knew or should have known that the criminal act

was foreseeable. Id. at 973. Indeed, foreseeability can be proven by means of evidence

that the proprietor was on notice of the presence of an unruly customer, or that a fight

might ensue. Paragon, 799 N.E.2d 1048, 1052 (Ind. 2003).

       In Delta Tau Delta, our Supreme Court held that a sexual assault on a college

student was foreseeable based on two specific similar incidents of sexual assault at the

same fraternity chapter house. In addition, the month before this sexual assault occurred,

the fraternity was provided with information concerning rape and sexual assault on

college campuses, including notice that the group most likely to commit rape on the

college campus was a fraternity. Id. at 973-74.

       However, in Merchants Nat’l Bank v. Simrell’s Sports Bar & Grill, Inc., 741

N.E.2d 383 (Ind. Ct. App. 2000), it was determined that a tavern did not owe a patron

who was shot a duty to protect him from the criminal act of another customer. It was

determined that there was no evidence of any prior or similar shooting incidents outside

the tavern that would have alerted the business to the likelihood that a shooting would

occur. Also, evidence of prior fights outside the tavern was insufficient to show that the



                                             7
shooting was foreseeable. Id. at 387-88. Thus, we concluded that the trial court properly

entered summary judgment for the tavern.

       In this case, there is no evidence of prior shootings or threats of prior shootings at

Our Place before the one that occurred on May 1, 2010. Ortega did not present any

evidence about the identity of the shooter or that the gunman was even in Our Place on

the night of the shooting. As noted by the trial court in its order, there was no evidence

that the gunman was in any way connected to the tavern, and there was also no evidence

that Susko or anyone else associated with Our Place had any knowledge or suspicion that

anyone in the vicinity had a gun. In other words, Ortega did not present evidence of an

altercation that could have alerted Our Place to any hostility that involved the customers.

There was nothing to alert Susko that anyone in or near Our Place had the propensity to

commit this shooting.

       In short, Ortega failed to present sufficient evidence to support an inference,

without undue speculation, that the shooting was foreseeable to Our Place. As a result,

we conclude that the trial court properly granted Our Place’s motion for judgment on the

evidence.

       The judgment of the trial court is affirmed.

RILEY, J., and BARNES, J., concur.




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