Ray Ortega v. Susko Corp., Inc., d/b/a Our Place ( 2013 )

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
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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MEMORANDUM DECISION – NOT FOR PUBLICATION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
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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
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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
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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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