                                                                         FILED
                                                                   May 09 2018, 7:40 am

                                                                         CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Matthew D. Barrett                                        Jeffrey L. Hansford
Logansport, Indiana                                       Curtis P. Moutardier
                                                          Boehl Stopher & Graves, LLP
                                                          New Albany, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Amber Cosgray,                                            May 9, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          59A01-1710-CT-2512
        v.                                                Appeal from the Orange Circuit
                                                          Court
French Lick Resort & Casino                               The Honorable Steven L. Owen,
d/b/a Blue Sky Casino, LLC,                               Judge
Appellee-Defendant.                                       Trial Court Cause No.
                                                          59C01-1512-CT-330



Riley, Judge.




Court of Appeals of Indiana | Opinion 59A01-1710-CT-2512 | May 9, 2018                      Page 1 of 12
                                STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, Amber Cosgray (Cosgray), appeals the trial court’s grant of

      Appellee-Defendant’s, French Lick Resort & Casino d/b/a Blue Sky Casino,

      LLC (French Lick Resort), motion for summary judgment, concluding that

      French Lick Resort did not owe a duty to Cosgray, an invitee, to protect her

      from a criminal attack by an unknown assailant.


[2]   We affirm.


                                                     ISSUE
[3]   Cosgray presents us with one issue on appeal, which we restate as: Whether

      the trial court properly concluded that French Lick Resort did not owe Cosgray

      a duty as a matter of law to protect her from a criminal attack by an unknown

      assailant while on French Lick Resort’s premises.


                      FACTS AND PROCEDURAL HISTORY
[4]   On December 7, 2013, Cosgray, along with her employer, Greg Pomasl

      (Pomasl), attended a work-related Christmas party at the hotel/casino owned

      and operated by French Lick Resort, at French Lick, Indiana. Cosgray and

      Pomasl arrived at the hotel around 2:00 p.m. and checked into their rooms.

      Cosgray was in Room 1504 and Pomasl’s room was nearby. At the time of

      check-in at the hotel, all guests were given a key card, which is placed in a key

      card holder and which includes the following safety instructions:


              1. Don’t answer the door to your guest room without verifying
                 who it is. If the person claims to be an employee, call the
      Court of Appeals of Indiana | Opinion 59A01-1710-CT-2512 | May 9, 2018   Page 2 of 12
             front desk and ask if someone from their staff is supposed to
             have access to your room and for what purpose.


        2. Keep your room key with you at all times and don’t
           needlessly display it in public. Should you misplace it, please
           notify the front desk immediately.


        3. Close the door securely whenever you are in your room and
           use all of the locking devices provided.


        4. Check to see that any sliding glass doors or windows and any
           connecting room doors are locked.


        5. Don’t invite strangers to your room.


        6. Be aware of potential phone scams and prank calls to your
           guest room. Hotel employees will never request credit card or
           personal information over the phone, nor will they advise a
           guest to damage hotel property.


        7. Place all valuables in the guest room safe.


        8. When returning to your hotel late in the evening, be aware of
           your surroundings, stay in well-lighted areas and use the main
           entrance.


        9. Take a few moments and locate the nearest exit that may be
           used in the event of an emergency.


        10. If you see any suspicious activity, notify the hotel operator or
            a staff member.




Court of Appeals of Indiana | Opinion 59A01-1710-CT-2512 | May 9, 2018         Page 3 of 12
      (Appellant’s Amended App. Vol. II, p. 96). All guest room doors at the French

      Lick Resort are equipped with three separate locking devices. The first security

      lock automatically locks the door upon closing. The second device is a

      deadbolt located near the doorknob which a guest has to manually turn to

      provide additional security. The third security device is a rasp safety lock which

      a guest simply flips over the closed door.


[5]   After checking into her room, Cosgray joined her co-employees in the bar area

      of the casino for drinks and dinner. The dinner ended between 8:00 and 9:00

      p.m., after which everyone went to their room to change before going to the

      casino. While at the casino, Cosgray played the slot machines for a while and

      then joined other colleagues in the bar area for dancing. After consuming two

      or three beers and two additional mixed drinks, Cosgray “felt the effects of the

      alcohol.” (Appellant’s Amended App. Vol. II, p. 74). At approximately 2:00

      a.m., Cosgray walked back to her hotel room. Because Pomasl intended to join

      her in her room after he cashed-in his chips at the casino, Cosgray propped her

      room door open by flipping the rasp lock through the door jamb, preventing the

      door from completely closing. After changing into sweatpants, Cosgray fell

      asleep on the bed while waiting for Pomasl.


[6]   About two hours later, Cosgray, laying on her stomach, awoke with her

      sweatpants and underwear pulled down and an unknown man on top of her,

      vaginally penetrating her. The unknown assailant never said anything and

      Cosgray did not make any noise. After approximately six minutes, the male left



      Court of Appeals of Indiana | Opinion 59A01-1710-CT-2512 | May 9, 2018   Page 4 of 12
      the room, and Cosgray locked the door. Law enforcement later identified

      Cosgray’s assailant as Javier Urbano Uribe (Uribe). 1


[7]   The criminal investigation later determined that French Lick Resort’s

      employee, Summer Andrews (Andrews), had invited Uribe onto the hotel and

      casino’s property. Andrews was employed in customer service, serving food

      and beverages to French Lick Resort’s guests at the casino. Due to inclement

      weather conditions, French Lick Resort had provided Andrews with a hotel

      room. At the conclusion of her shift on December 8, 2013, Andrews clocked

      out at 1:13 a.m. and left the premises. She visited a local bar where she

      befriended Uribe and invited him back to her room at the French Lick Resort.

      After accompanying Uribe into the hotel, and prior to arriving at her room,

      Andrews rebuked Uribe’s advances and left him alone near Cosgray’s room.


[8]   On December 4, 2015, Cosgray filed a Complaint for damages against French

      Lick Resort, claiming negligence, vicarious liability, and negligent infliction of

      emotional distress. On May 9, 2017, French Lick Resort filed a motion for

      summary judgment and designation of evidence, to which Cosgray responded

      on July 10, 2017. After conducting a hearing, the trial court granted summary

      judgment to French Lick Resort, concluding in pertinent part:


              This [c]ourt does now find that, in general, resorts and hotels do
              not routinely contemplate that an invitee might rape another



      1
       On December 10, 2013, the State filed an Information, charging Uribe with rape and burglary. Uribe pled
      guilty to the charge of rape on April 3, 2017.

      Court of Appeals of Indiana | Opinion 59A01-1710-CT-2512 | May 9, 2018                        Page 5 of 12
               invitee, nor do they contemplate that an invitee will voluntarily
               leave their doors open and unlocked all night. In addition, it
               would be unreasonable to hold a hotel or resort responsible for a
               rape occurring on its premises, especially given the circumstances
               of the case before the [c]ourt. [French Lick Resort] does not have
               a blanket duty to [Cosgray] to protect her from any and all
               criminal attacks. Thus[,] the [c]ourt finds that in this case, as a
               matter of law, it is unforeseeable by [French Lick Resort], that
               [Cosgray] would be sexually assaulted in her room that she
               intentionally left unlocked and that it would be unreasonable to
               require that French Lick Resort should have taken any further
               precautions to avoid such an attack.


       (Appellant’s Amended App. Vol. II, p. 15).


[9]    Cosgray now appeals. Additional facts will be provided if necessary.


                                DISCUSSION AND DECISION
                                              I. Standard of Review


[10]   In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       must determine whether there is a genuine issue of material fact and whether

       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. A fact is ‘material’ for summary judgment purposes if

       it helps to prove or disprove an essential element of the plaintiff’s cause of


       Court of Appeals of Indiana | Opinion 59A01-1710-CT-2512 | May 9, 2018     Page 6 of 12
       action; a factual issue is ‘genuine’ if the trier of fact is required to resolve an

       opposing party’s different version of the underlying facts. Ind. Farmers Mut. Ins.

       Group v. Blaskie, 727 N.E.2d 13, 15 (Ind. 2000). The party appealing the grant

       of summary judgment has the burden of persuading this court that the trial

       court’s ruling was improper. First Farmers Bank & Trust Co., 891 N.E.2d at 607.

       When the defendant is the moving party, the defendant must show that the

       undisputed facts negate at least one element of the plaintiff’s cause of action or

       that the defendant has a factually unchallenged affirmative defense that bars the

       plaintiff’s claim. Id. Accordingly, the grant of summary judgment must be

       reversed if the record discloses an incorrect application of the law to the facts.

       Id.


[11]   We observe that, in the present case, the trial court entered findings of fact and

       conclusions of law in support of its judgment. Special findings are not required

       in summary judgment proceedings and are not binding on appeal.

       AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

       App. 2004). However, such findings offer this court valuable insight into the

       trial court’s rationale for its review and facilitate appellate review. Id.


                                                    II. Analysis


[12]   To recover in negligence, Cosgray must establish: (1) a duty on the part of

       French Lick Resort to conform its conduct to a standard of care arising from its

       relationship with Cosgray; (2) a failure on the part of French Lick Resort to

       conform its conduct to the requisite standard of care; and (3) an injury to


       Court of Appeals of Indiana | Opinion 59A01-1710-CT-2512 | May 9, 2018        Page 7 of 12
       Cosgray proximately caused by the breach. Jones v. Wilson, 81 N.E.3d 688, 692

       (Ind. Ct. App. 2017).


[13]   In this case, the threshold inquiry is whether French Lick Resort owed a duty to

       its invitee, Cosgray, to protect her from a criminal attack by an unknown

       assailant while she was in her room on French Lick Resort’s premises with her

       room door intentionally left unlocked. Necessary to our analysis is

       consideration of two Indiana Supreme Court cases, which “redrew the premises

       liability landscape.” Hoosier Mountain Bike Ass’n v. Kaler, 73 N.E.3d 712, 716

       n.4 (Ind. Ct. App. 2017). The decisions in Rogers v. Martin, 63 N.E.3d 316 (Ind.

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

       carefully synthesized years of “less than perfectly lucid” caselaw on premises

       liability law in Indiana. Goodwin, 62 N.E.3d at 387. Reviewing the applicable

       precedents, Goodwin and Rogers initially observed that a landowner has a

       general duty to exercise reasonable care for the invitee’s protection while the

       invitee is on the premises. Rogers, 63 N.E.3d at 320. However, our supreme

       court continued that “although landlords owe invitees a well-established ‘duty

       to protect,’ courts must look at one critical element before extending that duty

       to cases where an invitee’s injury occurs not due to a dangerous condition of the

       land but due to some harmful activity on the premises. That element is

       foreseeability.” Id. at 324. That is, while landowners have a duty to take

       reasonable precaution to protect their invitees from criminal attacks by third

       parties, there is a foreseeability component in that analysis, requiring the trial




       Court of Appeals of Indiana | Opinion 59A01-1710-CT-2512 | May 9, 2018     Page 8 of 12
       court to decide, in the context of duty, whether the criminal act was foreseeable.

       See Jones, 81 N.E.3d at 693.


[14]   In its decisions, our supreme court distinguished the foreseeability component

       in the context of duty from the foreseeability component in the context of

       proximate cause, stating: “‘[T]he foreseeability component of proximate cause

       requires an evaluation of the facts of the actual occurrence, while foreseeability

       as a component of duty involves a lesser inquiry which requires a more general

       analysis of the broad type of plaintiff and harm involved, without regard to the

       facts of the actual occurrence.’” 2 Goodwin, 62 N.E.3d at 391 (quoting Goldsberry

       v. Grubbs, 672 N.E.2d 475, 479 (Ind. Ct. App. 1996), trans. denied); see also

       Rogers, 63 N.E.3d at 325 (foreseeability in duty context is a general threshold

       determination that “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”). The

       Goodwin court further clarified the trial court’s task when determining whether a

       criminal act was foreseeable:


                But because almost any outcome is possible and can be foreseen,
                the mere fact that a particular outcome is “sufficiently likely” is
                not enough to give rise to a duty. Instead, for purposes of
                determining whether an act is foreseeable in the context of duty
                we assess “whether there is some probability or likelihood of


       2
         In reaching this decision, the Goodwin court specifically rejected the totality of the circumstances test when
       analyzing the foreseeability analysis in the context of duty. See Goodwin, 62 N.E.3d at 389 (“[W]e now
       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.”)

       Court of Appeals of Indiana | Opinion 59A01-1710-CT-2512 | May 9, 2018                               Page 9 of 12
               harm that is serious enough to induce a reasonable person to take
               precautions to avoid it.


       Goodwin, 62 N.E.3d at 392.


[15]   Distinguishing Goodwin, Cosgray claims that “[t]he broad type of patron at a

       small neighborhood bar typically stays for a short period of time to drink

       beverages and socialize. On the other hand, the broad type of patron at issue in

       the present case stays for an exceedingly longer period of time to play casino

       games, drink, socialize, and then sleep overnight in guest rooms.” (Appellant’s

       Br. p. 16). In Goodwin, the plaintiff was socializing at a bar when another

       patron became angry, produced a handgun, and shot the plaintiff. Goodwin, 62

       N.E.3d at 392. In its analysis of the bar’s duty, our supreme court noted:


               The broad type of plaintiff here is a patron of a bar and the harm
               is the probability or likelihood of a criminal attack, namely: a
               shooting inside a bar. But even engaging in a ‘lesser inquiry’ we
               conclude that although bars can often set the stage for rowdy
               behavior, we do not believe that bar owners routinely
               contemplate that one bar patron might suddenly shoot another.


       Id. at 393. See also Martin, 63 N.E.3d at 326 (“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.”); Jones, 81 N.E.3d at 694-95 (The random criminal attack in

       the parking lot on a paying spectator at a wrestling match was not foreseeable

       and therefore no duty was owed); Powell v. Stuber, 89 N.E.3d 430, 434 (Ind. Ct.

       Court of Appeals of Indiana | Opinion 59A01-1710-CT-2512 | May 9, 2018   Page 10 of 12
       App. 2017) (No duty was owed to the patron of a bar who “pursued his

       assailants and grabbed onto the vehicle as it was being driven away.”), reh’g

       denied.


[16]   Here, Cosgray’s injuries resulted from the conduct of a third person. Under the

       foreseeability test outlined in Goodwin and Rogers—examining the broad type of

       plaintiff and the broad type of harm, without consideration of the actual facts—

       we find that the sexual criminal attack on Cosgray by another invitee in a room

       left intentionally unlocked was not normally to be expected, and thus not

       foreseeable, and therefore French Lick Resort did not owe a duty to Cosgray.


[17]   Cosgray encourages this court to take into consideration the “ongoing history of

       assaults and batteries involving injury and a prior reported rape” and the

       specific security measures to impose a duty on French Lick Resort.

       (Appellant’s Br. p. 16). However, Cosgray’s inclination to incorporate the

       totality of the circumstances into our consideration of the duty element is no

       longer applicable since our supreme court decision in Goodwin and Martin. See

       Goodwin, 62 N.E.3d at 392 (The totality of the circumstances test “is ill-suited to

       determine foreseeability in the context of duty.”). Accordingly, we affirm the

       trial court’s summary judgment for French Lick Resort.


                                              CONCLUSION
[18]   Based on the foregoing, we conclude that French Lick Resort did not owe

       Cosgray a duty as a matter of law to protect her from a criminal attack by an

       assailant while on French Lick Resort’s premises.

       Court of Appeals of Indiana | Opinion 59A01-1710-CT-2512 | May 9, 2018   Page 11 of 12
[19]   Affirmed.


[20]   May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Opinion 59A01-1710-CT-2512 | May 9, 2018   Page 12 of 12
