                                                                                  FILED
                                                                             Apr 30 2019, 10:08 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEYS FOR APPELLANT                                         ATTORNEY FOR APPELLEE
      Christopher D. Cody                                             A. Leon Sarkisian
      Georgianna Q. Tutwiler                                          Sarkisian Law Offices
      Hume Smith Geddes Green & Simmons, LLP                          Merrillville, Indiana
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Cavanaugh’s Sports Bar &                                        April 30, 2019
      Eatery, Ltd.,                                                   Court of Appeals Case No.
      Appellant-Defendant,                                            18A-CT-1814
                                                                      Interlocutory Appeal from the
              v.                                                      Lake Superior Court
                                                                      The Honorable Bruce D.
      Eric Porterfield,                                               Parent, Judge
      Appellee-Plaintiff                                              Trial Court Cause No.
                                                                      45D04-0710-CT-288



      Crone, Judge.


                                               Case Summary
[1]   Shortly after closing time, several patrons of Cavanaugh’s Sports Bar & Eatery,

      Ltd. (“Cavanaugh’s”), became involved in an altercation in Cavanaugh’s

      parking lot, and patron Eric Porterfield was injured. Porterfield filed a personal

      injury action, claiming that Cavanaugh’s was negligent in failing to take

      Court of Appeals of Indiana | Opinion 18A-CT-1814 | April 30, 2019                              Page 1 of 9
      reasonable care for his safety against criminal attacks in its parking lot. In this

      interlocutory appeal, Cavanaugh’s challenges the denial of its motion for

      summary judgment. Finding that Cavanaugh’s failed to establish as a matter of

      law that it did not owe Porterfield a duty to protect him from criminal activity

      in its parking lot, we affirm the denial of summary judgment.


                                   Facts and Procedural History
[2]   The facts most favorable to Porterfield as the nonmoving party are as follows.

      At 3:00 a.m. on Sunday, December 10, 2006, Cavanaugh’s closed for the night.

      At the time, the bar was crowded, and Cavanaugh’s employees directed the

      patrons to the exits. One of those patrons, Porterfield, had been at

      Cavanaugh’s with his friend Steven McPherson. Porterfield did not consume

      any alcohol, but McPherson did. When they reached Cavanaugh’s parking lot,

      McPherson made a comment to a female patron, to which her boyfriend and

      his companions, also patrons, took umbrage. Porterfield turned and saw

      McPherson surrounded by the boyfriend and his friends. An altercation

      ensued, and Porterfield suffered a serious eye injury.


[3]   Porterfield filed a personal injury action against Cavanaugh’s, claiming that

      Cavanaugh’s was negligent in failing to take reasonable care for his safety as an

      invitee/patron. Several years later, Cavanaugh’s filed a motion for summary

      judgment accompanied by designated materials, claiming that as a matter of

      law it owed no duty to protect Porterfield.




      Court of Appeals of Indiana | Opinion 18A-CT-1814 | April 30, 2019          Page 2 of 9
[4]   Porterfield designated several exhibits in opposition to summary judgment.

      Plaintiff’s Exhibits 2 through 6 comprise reports of five police runs to

      Cavanaugh’s during the eleven months preceding the current incident. All the

      reports involve incidents of reported fisticuffs outside Cavanaugh’s shortly after

      closing time. Exhibit 7 includes excerpts from the deposition of Schererville

      Police Department Corporal Michael A. Vode, who testified that each police

      run record sets out regularly recorded and conducted activities of his

      department. Ind. Evidence Rule 803(8)(A). Two days before the summary

      judgment hearing, Cavanaugh’s filed a motion to strike, claiming that the police

      reports contained inadmissible hearsay. The court did not rule on the motion at

      that time.


[5]   The trial court conducted a hearing and issued an order denying Cavanaugh’s

      summary judgment motion. As part of its order, the trial court stated that it did

      not consider the police run reports in making its decision and found

      Cavanaugh’s motion to strike moot. This interlocutory appeal ensued.

      Additional facts will be provided as necessary.


                                       Discussion and Decision
[6]   Cavanaugh’s claims that the trial court erred in denying its motion for summary

      judgment. We review a court’s ruling on a summary judgment motion de

      novo, applying the same standard as the trial court. Hughley v. State, 15 N.E.3d

      1000, 1003 (Ind. 2014). In conducting our review, we consider only those

      matters that were designated to the trial court during the summary judgment


      Court of Appeals of Indiana | Opinion 18A-CT-1814 | April 30, 2019         Page 3 of 9
      stage. Biedron v. Anonymous Physician 1, 106 N.E.3d 1079, 1089 (Ind. Ct. App.

      2018), trans. denied (2019).


[7]   Summary judgment is appropriate if the designated evidence shows that there is

      no genuine issue as to any material fact and that the moving party is entitled to

      judgment as a matter of law. Hughley, 15 N.E.3d at 1003; Ind. Trial Rule

      56(C). The moving party bears the onerous burden of affirmatively negating an

      opponent’s claim. Hughley, 15 N.E.3d at 1003. Then, if “the moving party

      satisfies this burden through evidence designated to the trial court, the non-

      moving party may not rest on its pleadings, but must designate specific facts

      demonstrating the existence of a genuine issue for trial.” Biedron, 106 N.E.3d at

      1089 (quoting Broadbent v. Fifth Third Bank, 59 N.E.3d 305, 311 (Ind. Ct. App.

      2016), trans. denied).


[8]   In determining whether issues of material fact exist, we neither reweigh

      evidence nor judge witness credibility. Peterson v. Ponda, 893 N.E.2d 1100, 1104

      (Ind. Ct. App. 2008), trans. denied (2009). Rather, we must accept as true those

      facts established by the designated evidence favoring the nonmoving party. Brill

      v. Regent Commc’ns, Inc., 12 N.E.3d 299, 309 (Ind. Ct. App. 2014), trans. denied.

      “Any doubt as to any facts or inferences to be drawn therefrom must be

      resolved in favor of the non-moving party.” Goodwin v. Yeakle’s Sports Bar &

      Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). The party that lost in the trial court

      bears the burden of persuading us that the trial court erred. Biedron, 106 N.E.3d

      at 1089.



      Court of Appeals of Indiana | Opinion 18A-CT-1814 | April 30, 2019          Page 4 of 9
[9]    Porterfield’s action against Cavanaugh’s is a negligence action. To prevail on a

       negligence claim, the plaintiff must demonstrate “(1) duty owed to plaintiff by

       defendant; (2) breach of duty by allowing conduct to fall below the applicable

       standard of care; and (3) compensable injury proximately caused by defendant’s

       breach of duty.” Goodwin, 62 N.E.3d at 386 (quoting King. v. Ne. Sec., Inc., 790

       N.E.2d 474, 484 (Ind. 2003)). “The duty, when found to exist, is the duty to

       exercise reasonable care under the circumstances.” Stump v. Ind. Equip. Co., 601

       N.E.2d 398, 402 (Ind. Ct. App. 1992), trans. denied (1993).


[10]   Cavanaugh’s maintains that it owed no duty as a matter of law to protect

       Porterfield against an after-hours criminal assault in its parking lot.

       “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 Rest. v. Bartolini, 799 N.E.2d 1048, 1052 (Ind. 2003). This

       includes protecting invitees from reasonably foreseeable criminal acts. Id. at

       1053. In fact, “[w]here a premises liability claim is based on activities on the

       land [rather than a condition of the land], foreseeability is the critical inquiry in

       determining whether the landowner’s duty of reasonable care extends to the

       particular circumstances at issue.” Certa v. Steak ‘n Shake Operations Inc., 102

       N.E.3d 336, 340 (Ind. Ct. App. 2018) (quoting Rogers v. Martin, 63 N.E.3d 316,

       325 (Ind. 2016)), trans. denied. The issue of “whether a duty exists is a question

       of law for the court to decide.” Goodwin, 62 N.E.3d at 389. “[A]s a component

       of duty, foreseeability must be determined by the court[.]” Id. at 390.




       Court of Appeals of Indiana | Opinion 18A-CT-1814 | April 30, 2019           Page 5 of 9
[11]   “[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 (quoting Satterfield v. Breeding Insulation Co., 266

       S.W.3d 347, 367 (Tenn. 2008)). This involves a “more general analysis of the

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

       actual occurrence.” Id. at 393 (quoting Goldsberry v. Grubbs, 672 N.E.2d 475,

       479 (Ind. Ct. App. 1996), trans. denied (1999)). The Goodwin analysis

       acknowledges the well-established public policy that proprietors are not

       “insurers of their patrons’ safety.” Id. at 394.


[12]   Cavanaugh’s relies on our supreme court’s decision in Goodwin as support for

       its argument that it had no duty to protect Porterfield against the harm suffered.

       In Goodwin, one bar patron thought he overheard another patron making a

       derogatory remark about his wife. 62 N.E.3d at 385. In his anger, he pulled

       out a handgun and fired at the other patron, striking him and his two

       companions. Id. The Goodwin court acknowledged that “although bars can

       often set the stage for rowdy behavior,” bar owners do not “routinely

       contemplate that one bar patron might suddenly shoot another.” Id. at 393-94.

       As such, the Goodwin court held “that a shooting inside a neighborhood bar is

       not foreseeable as a matter of law.” Id. at 394.


[13]   Goodwin is similar to this case in some respects. Both cases involve the same

       broad type of plaintiff, a bar patron/invitee. Both Goodwin and this case

       involve harm related to an activity on the land, a criminal attack. Nevertheless,
       Court of Appeals of Indiana | Opinion 18A-CT-1814 | April 30, 2019         Page 6 of 9
       in analyzing foreseeability, i.e., the probability or likelihood of the criminal

       attack, we must look at the nature of the attack. Goodwin involved the sudden

       shooting of bar patrons by another patron inside the bar. This case involves a

       fistfight between bar patrons in the parking lot just after closing. We believe

       that the distinction between a shooting and a fistfight is pivotal when examining

       foreseeability within the context of duty. See Certa, 102 N.E.3d at 341 (even in

       the broader context of determining duty, “what the landowner knew or had

       reason to know is a pivotal consideration in determining foreseeability[.]”).


[14]   Cavanaugh’s correctly distinguishes this case from those in which there was

       designated evidence of mounting tensions between groups of patrons during

       their time inside the bar/restaurant. See, e.g., 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 restaurant employees observed

       escalating tensions between two groups of patrons and did not intervene or

       contact security or police, and plaintiff was shot inside restaurant), trans. denied.

       Here, the tensions began and rapidly escalated after the patrons were outside the

       building just after Cavanaugh’s had closed. In this sense, this case is more akin

       to Certa, where a physical altercation in the parking lot escalated to the point

       where one patron eventually struck another patron with her vehicle. 102

       N.E.3d at 337-38. However, in Certa, a witness came inside and informed

       restaurant personnel about the first altercation. Id. Another panel of this Court

       reversed summary judgment for the restaurant, finding that the restaurant had a

       duty to take steps to avoid further violence. Id.

       Court of Appeals of Indiana | Opinion 18A-CT-1814 | April 30, 2019            Page 7 of 9
[15]   In contrast, here, no evidence was designated to indicate that Cavanaugh’s had

       express notice concerning tensions between Porterfield and the perpetrators.

       Nonetheless, the designated evidence shows that the altercation occurred

       immediately after the Saturday night/Sunday morning crowd had been herded

       out of Cavanaugh’s at its 3:00 a.m. closing time. See Appellant’s App. Vol. 2 at

       67 (designated excerpt from Porterfield’s deposition describing the scene

       moments before altercation as “a lot of people going out” into parking lot as

       Cavanaugh’s personnel sought to clear the building). From what we can tell,

       an exchange of words quickly escalated to physical violence. Cavanaugh’s

       designated expert characterized the incident as “an instantaneous and

       unforeseeable event because the actions occurred after the parties left

       Cavanaugh’s.” Id. at 127. To the extent that this reasoning suggests that

       incidents beginning outside the four corners of the building fall outside the

       scope of the proprietor’s duty to patrons, we find it overly simplistic.


[16]   We believe that parking lot fistfights at closing time are generally within the

       type of “rowdy behavior” that bar owners should contemplate, Goodwin, 62

       N.E.3d at 393-94, and that, in particular, Cavanaugh’s history of reported

       incidents gave it reason to contemplate further such incidents in its own parking

       lot. To say that a bar owner’s duty to protect its patrons extends only to

       herding them through the exits at closing time is to essentially immunize the bar

       owner for violence that ensues between patrons immediately thereafter in its

       parking lot. We do not believe that the Goodwin court intended so broad a

       sweep of the pendulum, especially where the bar has a documented history of


       Court of Appeals of Indiana | Opinion 18A-CT-1814 | April 30, 2019         Page 8 of 9
       similar incidents on its grounds. This is not to say that Cavanaugh’s breached

       its duty to Porterfield; that will be a determination for the trier of fact once

       presented with evidence of the detailed circumstances of this case. We simply

       conclude that Cavanaugh’s has failed to establish as a matter of law that it

       owed no duty to protect Porterfield. Accordingly, we affirm the trial court’s

       denial of Cavanaugh’s motion for summary judgment.


[17]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CT-1814 | April 30, 2019           Page 9 of 9
