Cavanaugh's Sports Bar & Eatery, Ltd. v. Eric Porterfield , 123 N.E.3d 170 ( 2019 )


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  •                                                                                   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
    

Document Info

Docket Number: Court of Appeals Case 18A-CT-1814

Citation Numbers: 123 N.E.3d 170

Judges: Crone

Filed Date: 4/30/2019

Precedential Status: Precedential

Modified Date: 10/19/2024