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by: Colin E. Flora
Returning to a topic we discussed on several occasions this past summer, last week’s decision in Buddy & Pals III, Inc. v. Falaschetti from the Court of Appeals of Indiana gives us an opportunity to once more examine under what circumstances a business may be held liable for criminal attacks suffered by a patron.
Before we delve into Buddy & Pals, two other recent cases from the Indiana Court of Appeals merit mention. On New Year’s Eve, the court handed down Speaks v. Rao, which rejected an attempt to distinguish “medical negligence” from “medical malpractice.” Also of note was Crawfordsville Town & Country Home Center, Inc. v. Cordova, holding that a renter of equipment satisfied its duty to warn by providing the manufacturer’s warning to persons renting the equipment even though the warnings were in English and the persons renting the equipment spoke Spanish:
In this case, warnings were given by the manufacturer and were clearly visible on the aerial lift. Cordova cites no authority that Indiana law imposes a duty to provide bilingual warnings on a product or that the “reasonable warning” requirement includes an obligation to provide bilingual warnings. Other courts considering this issue have analyzed whether the product was specifically marketed to non-English speakers, and there is no evidence of such here.
We conclude that the [Ford Motor Co. v. Rushford] analysis is more applicable and persuasive here. Under Rushford, Town & Country had no duty to provide additional warnings to Cordova. In Rushford, the seller had no obligation to provide additional warnings regarding the airbags even though it was aware of the plaintiff’s short stature. Town & Country, similarly, had no obligation to provide Cordova with additional warnings regardless of Cordova’s limited English skills.
Returning now to our main discussion, we must start with the underlying facts of Buddy & Pals. On a January night, a patron awaited his girlfriend to finish working at a promotional event at the bar. Another patron, there with his fiancée, became intoxicated after knocking back numerous drinks for three hours. After witnessing another man talking to his fiancée, the second patron became unruly and was forcibly removed from the establishment by bouncers. The second patron tried to break free from the bouncers to attack the man who had spoken to his fiancée. The second patron was taken out of the front of the bar, but later tried to enter through the back. His attempts at reentry were frustrated by another bouncer, who “punched him in the eye and slammed the door.” The second patron returned to the front of the building. Confusing the first patron for the man who had talked to his fiancée, the second patron punched the first as he exited the bar via the front door. The punch broke the patron’s jaw.
The first patron filed suit against his attacker and the bar. The bar, asserting that it owed the patron no duty to protect him from the criminal acts of the other patron, sought summary judgment. The motion was denied and the matter was presented to the Indiana Court of Appeals on interlocutory appeal.
The argument turned on interpretation of the Indiana Supreme Court’s ruling in Goodwin v. Yeakle’s Sports Bar & Grill, Inc.
In Goodwin, one bar patron thought he overheard another patron making a derogatory remark about his wife. In his anger, he pulled out a handgun and fired at the other patron, striking him and his two companions.Reasoning that bar owners do not “routinely contemplate that one bar patron might suddenly shoot another[,]” our supreme court held “that a shooting inside a neighborhood bar is not foreseeable as a matter of law.”
Despite the superficial similarities between Goodwin and Buddy & Pals, the court found the two situations distinguishable.
Because the theory of liability arose from premises liability for activity on the land, the “critical inquiry” was whether the attack was foreseeable to the bar. Unlike the shooting in Goodwin, “this is the type of ‘rowdy behavior . . . that bar owners routinely contemplate.’” Notably, the court found that conclusion reinforced by “[t]he fact that Buddy & Pals had several bouncers on duty inside the bar and an off-duty officer patrolling the parking lot . . . .” As a result, the court found the case analogous to Certa v. Steak’n Shake Operations Inc. and Hamilton v. Steak’n Shake Operations Inc.
We have discussed both Certa and Hamilton in prior posts. In each case, an incident was precipitated by a buildup of which the restaurant was aware, as opposed to the almost instantaneous act of drawing and discharging a firearm in Goodwin. Just like Certa and Hamilton the patron in Buddy & Pals was engaged in a prolonged incident that was known to the business. The court of appeals found that distinction determinative:
We find this case more akin to the Steak ‘n Shake cases, where employees observed escalating agitation among patrons, had reason to anticipate that a physical altercation might ensue, and therefore had a duty to take reasonable steps to protect the patrons.
“[W]hat the landowner knew or had reason to know is a pivotal consideration in determining foreseeability[.]” Here, Buddy & Pals, through its bouncers, knew that Bailey — a large, angry, and visibly inebriated patron — had vigorously resisted them as they attempted to defuse the tensions between him and the man who shoved him. The bouncers also knew that he had approached the back entrance again after being ejected, prompting one of the bouncers to punch him and slam the door. They also anticipated that he would go around the building to the front entrance, which precipitated Joe's warning to the bouncers up front.
In sum, Buddy & Pals, through its bouncers, knew that Bailey was a loose cannon who was not taking his ejection well and was in a fighting mood. As such, Buddy & Pals had a duty to take precautions to protect its other patrons, including Falaschetti, from further violent attacks by Bailey on the bar’s premises.
Because a duty existed, summary judgment was properly denied. Whether that duty was breached is a matter for trial.
This decision, along with Ceta, Hamilton, and the Southern District of Indiana’s ruling in Jane Doe No. 62 v. Delta Tau Delta Beta Alpha Chapter stand as strong reminders to not read Goodwin too broadly. When the conduct of an unruly patient is sufficiently prolonged such that the establishment has become aware of the threat posed by him to other patrons, a duty attaches for the establishment to act. That, I think, is the clearest statement of the rule articulated by those four cases.
Join us again next time for further discussion of developments in the law.
Buddy & Pals III, Inc. v. Falaschetti, No. 18A-CT-1811, 2019 Ind. App. LEXIS 20, 2019 WL 255392 (Ind. Ct. App. Jan. 18, 2019) (Crone, J.).
Speaks v. Rao, No. 18A-CT-131, 2018 Ind. App. LEXIS 505, 2018 WL 6837777 (Ind. Ct. App. Dec. 31, 2018) (Robb, J.).
Crawfordsville Town & Country Home Ctr., Inc. v. Cordova, No. 18A-CT-314, 2019 Ind. App. LEXIS 29 (Ind. Ct. App. Jan. 24, 2019) (Tavitas, J.).
Ford Motor Co. v. Rushford, 868 N.E.2d 806 (Ind. 2007) (Rucker, J.).
Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016) (Rucker, J.).
Certa v. Steak’n Shake Operations Inc., 102 N.E.3d 336 (Ind. Ct. App. 2018) (Barteau, S.J.).
Hamilton v. Steak’n Shake Operations Inc., 92 N.E.3d 1166, 1167 (Ind. Ct. App. 2018) (Altice, J.), trans. denied.
Jane Doe No. 62 v. Delta Tau Delta Beta Alpha Chptr, No. 1:16-cv-01480-JMS-DML, 2018 U.S. Dist. LEXIS 115138 (S.D. Ind. July 11, 2018) (Magnus-Stinson, C.J.).
Colin E. Flora,Indiana: Member’s History of Sexual Assault Exposes Fraternity to Liability, Hoosier Litig. Blog(July 13, 2018).
Colin E. Flora,Further Considering When a Proprietor Owes a Duty to a Patron to Protect Him from the Criminal Acts of Another, Hoosier Litig. Blog(June 8, 2018).
Colin E. Flora,When Does a Proprietor Owe a Duty to Stop One Patron from Shooting Another? Indiana Court of Appeals Weighs In, Hoosier Litig. Blog(Apr. 6, 2018).
*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.