Amber Cosgrave v. French Lick Resort & Casino d/b/a Blue Sky Casino, LLC ( 2018 )

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.
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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
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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.
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(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
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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.
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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
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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
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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
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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.”)
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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.
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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.
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[19] Affirmed.
[20] May, J. and Mathias, J. concur
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