Indiana Court of Appeals: Fistfights in Parking Lot are Type of Foreseeable “Rowdy Behavior” Sufficient to Make Bar Liable for Injuries to Patrons

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by: Colin E. Flora

     Once more, we return to a topic that has garnered a tremendous amount of attention from Indiana appellate courts in recent years: whether a business owed a duty to a person injured on or near the premises by criminal acts of a third-party. We last discussed the issue in January, when the Court of Appeals of Indiana held that a bar owed a duty to a patron whose jaw was broken by another person who had been bounced from the bar for unruly and violent behavior.

     This week, the court of appeals took the issue up once more in Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield. Yet again, the facts set us in early-morning hours among intoxicated persons:

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.

Porterfield sought to recover for his injuries from the bar. The case proceeded to the bar’s motion for summary judgment, which was denied by the trial court. On appeal, the bar argued that it was entitled to summary judgment because it did not owe a legally cognizable duty to Porterfield.

     Under well-established Indiana law, “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”, including “protecting invitees from reasonably foreseeable criminal acts.” The type of liability at issue stems from the business’s control of the premises on which the injury occurred. But, unlike actions resulting from injury due to a condition on the premises, this type of injury is one suffered due to an activity on the premises. As the court recognized, “[w]here a premises liability claim is based on activities on the land [rather than a condition on the land[, foreseeability is the critical inquiry in determining whether the landowner’s duty of reasonable care extends to the particular circumstances at issue.” In this setting, Indiana law currently dictates that foreseeability is a question of law to be decided by the court, not the jury.

     The specific question to determine foreseeability is “whether there is some probability or likelihood of harm that is serious enough to induce a reasonable person to take precautions to avoid it.” Dating back to the Indiana Supreme Court’s 2016 ruling in Goodwin v. Yeakle’s Sports Bar & Grill, Inc., Indiana courts apply a “more general analysis of the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence.” In Goodwin, a bar patron was suddenlyshot by another patron. The Indiana Supreme Court ruled that the bar did not owe that patron a duty. In subsequent rulings by the Court of Appeals of Indiana, the Goodwin conclusion has been interpreted as turning largely on the fact that the shooter acted suddenly, depriving the bar of sufficient information to make the action foreseeable.

     The Cavanuagh’s Sports Bar court has found an additional notable distinction: “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.” That distinction was important because it was not a case, like another that had come before the court of appeals, in which the injuries followed “mounting tensions between groups of patrons during their time inside the bar/restaurant.” Instead, the circumstances “began and rapidly escalated after the patrons were outsidethe building just after Cavanaugh’s had closed.” That was more like the circumstances in Certa v. Steak ‘n Shake Operations Inc., where a physical altercation in the parking lot escalated to the point where one patron eventually struck another patron with her vehicle. Still, Certa was not on all-fours with Cavanaugh’s Sports Bar because Certa included a witness going inside the restaurant and informing personal about an altercation that later led to serious injuries to a patron.

     Ultimately the case came down to the distinction the court of appeals started with: a gun shot vs. a fistfight:

We believe that parking lot fistfights at closing time are generally within the type of “rowdy behavior” that bar owners should contemplate, 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 similar incidents on its grounds.

     There was one final important takeaway from the case: the court rejected a per se rule that the events needed to begin or otherwise take place inside the business. Specifically, the court wrote, “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.”

     It is an important ruling for persons injured by actions caused by unruly bar patrons and provides a new wrinkle in the assessment of when a business owes a duty to protect its patrons from criminal acts of third-parties.

     Join us again next time for further discussion of developments in the law.

Sources

Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, ---N.E.3d---, No. 18A-CT-1814, 2019 Ind. App. LEXIS 194 (Ind. Ct. App. Apr. 30, 2019) (Crone, J.).

Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016) (Rucker, J.).

Hamilton v. Steak ‘n Shake Operations Inc., 92 N.E.3d 1166 (Ind. Ct. App. 2018) (Altice, J.), trans. denied.

Certa v. Steak ‘n Shake Operations Inc., 102 N.E.3d 336 (Ind. Ct. App. 2018) (Barteau, S.J.), trans. denied.

Colin E. Flora, Indiana: Bar Owed Duty to Patron Whose Jaw Was Broken by a Drunken Patron Who Had Been Bounced from the Bar, Hoosier Litig. Blog (Jan. 25, 2019).

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).

*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.