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by: Colin E. Flora
It has taken me a month to find the time to get to it, but today’s discussion is one that I have looked forward to ever since reading the superbly reasoned decision from Judge Robert Altice for the Court of Appeals of Indiana in Hamilton v. Steak’n Shake Operations Inc. That decision sought to apply the relatively recent––October 26, 2016––companion decisions from the Indiana Supreme Court in Goodwin v. Yeakle’s Sports Bar & Grill, Inc. and Rogers v. Martin to facts that, on the surface, seem not too wholly dissimilar to those cases. In each instance, a person was seriously harmed by another while on the property of a third-person. The resulting question was whether the property owner owed a duty to injured person to prevent the harm. Goodwin and Rogers both found no such duty. And that’s where Hamilton comes in: it found a duty.
First, let us look at what happened in Goodwin and Rogers. Let us begin with Goodwin. The facts are simple:
During the late evening hours of August 27 and the early morning hours of August 28, 2010, April Goodwin, Tiffany Randolph, and Javon Washington [ ] were seated at a table, socializing with friends at Yeakle’s Sports Bar and Grill, a small establishment in Marion, Indiana [ ]. Another patron, Rodney Carter, was seated nearby with his wife. At some point Carter thought he heard Washington make a derogatory remark about Carter’s wife. This angered Carter who produced a handgun and fired at Washington. He struck Washington and accidently struck Goodwin and Randolph as well. All three shooting victims survived; and Carter later pleaded guilty to three counts of battery with a deadly weapon.
So the question was whether Yeakle’s owed a duty to the patrons to have prevented them from being shot by Carter. To answer that question, the court looked to the entrenched standard that “[l]andowners have a duty to take reasonable precautions to protect their invitees from foreseeable criminal attacks.” And that opened two new avenues for examination: when is a criminal attack “foreseeable” and who decides that issue?
In many ways the most revolutionary part of Goodwin and the accompanying decision in Rogers, is the answer to that second question. Here, with the citations omitted, is how the court answered it in Goodwin:
At least part of the confusion in this area of the law is grounded in the fact that for most negligence actions foreseeability is a component of proximate causation only. And in the context of evaluating proximate causation our courts have long held that foreseeability is a question of fact for the jury to decide. But in the case before us foreseeability is not only a component of the proximate cause element of negligence, it is also a component of the duty element of negligence as well. And, we repeat for emphasis, whether a duty exists is a question of law for the court to decide.
In sum, because foreseeability is—in this particular negligence action—a component of duty, and because whether a duty exists is a question of law for the court to decide, the court must of necessity determine whether the criminal act at issue here was foreseeable. . . .
We acknowledge the concept of foreseeability as a component of duty is not universally embraced. But as the Supreme Court of Tennessee has observed, “[w]hile there have certainly been able and skillful critiques of the role that foreseeability plays in determining whether a duty exists, the majority of courts continue to use foreseeability as a central component of their analyses.” In like fashion, despite critiques to the contrary, we decline to chart a different course. Instead, we continue to endorse the position that in some negligence actions foreseeability plays a role in the analysis of duty.
Then came the question of whether the shooting in Goodwin was foreseeable. But, instead of using the “totality of the circumstances” analysis that had been used in several cases before, the court pronounced a new analysis. The court determined that it is not enough that an action could be foreseeable in a particular circumstance, reasoning that most all occurrences are to a greater or lesser degree foreseeable. Rather, the court decided, the determinative factor 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.” And the analysis, the court emphasized, is not dependent upon the specific facts of a case. Instead, it “requires a more general analysis of the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence.”
Thus, the court asked is whether the “patron of a bar” being shot inside the bar is probable or likely. The court determined the answer was no:
[W]e 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. To be sure, we doubt there exists a neighborhood anywhere in this State which is entirely crime-free. Thus, in the broadest sense, all crimes anywhere are “foreseeable.” But to impose a blanket duty on proprietors to afford protection to their patrons would make proprietors insurers of their patrons’ safety which is contrary to the public policy of this state. Further such a blanket duty would abandon the notion of liability based on negligence and enter the realm of strict liability in tort which “assumes no negligence of the actor, but chooses to impose liability anyway.” We decline to impose such liability here. In sum we hold that a shooting inside a neighborhood bar is not foreseeable as a matter of law.
The same analysis was applied in half of Rogers. I say half, because Rogers presented two different duties: the duty to protect from injury and the duty to render aid to a social guest. The same analysis as in Goodwin was used. The facts in Rogers are certainly dissimilar to Goodwin. A woman owned a home and, along with her boyfriend, hosted a “house party.” The boyfriend invited a co-worker to the party. At the end of the night, the woman went to bed and her boyfriend got into a fight with his coworker and his co-worker’s significant other. After the fight, the boyfriend woke the woman up, told her the two other men had attacked him, and asked her to help get them to leave.
She got up, walked down to the basement, and saw [coworker’s the significant other] lying motionless on the basement floor with his eyes closed. [She] did not see any injuries to [his] face but did notice [the coworker] had blood on his. She asked if [the significant other] was okay, and [the coworker] and [her boyfriend] checked [his] pulse and confirmed he was breathing. [She] was not concerned and did not call the police or dial 911, assuming that [he] was “just passed out from drinking too much or something.” But she did tell [the coworker] that “if he’s concerned, if he thinks there’s a chance [the significant other has alcohol poisoning], to take him to the hospital and get him checked out."
[She] went back to her room, and [the coworker and her boyfriend] carried [him] upstairs. When [the boyfriend] came to bed, [she] asked him whether [the two men] had left. [The boyfriend] said “no,” and [she] told [him] to make sure he helped [ ] get [the significant other] in the car. Soon after, police arrived, found [the significant other] dead outside the home, and arrested [the boyfriend].
The court set about to answer both duty questions using the same approach as in Goodwin. The question of foreseeability, as framed by the Indiana Supreme Court, was whether the woman, “as a homeowner,” had a duty “to take precautions to prevent a co-host from fighting with and injuring a house-party guest.” The court determined the answer to that question was no: “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; rather, to require a homeowner to take precautions to avoid this unpredictable situation would essentially make the homeowner an insurer for all social guests' safety.”
But the court found that there was still a duty in play, and that duty arose once the woman knew the fight had occurred. “Homeowners should reasonably expect that a house-party guest who is injured on the premises could suffer from an exacerbation of those injuries. Thus, we conclude that [she] owed a duty to her social guest to protect him from the exacerbation of an injury occurring in her home.”
Now we can return to Hamilton. Let us start with what happened:
On or about December 21, 2012, Hamilton, her brother Dustyn, and two friends were patrons at an Indianapolis Steak’n Shake. A server and a cook, who was also acting as the manager, were the only other persons present. Shortly after Hamilton’s group ordered their food, another group of individuals, including Ricky Jackson, entered the Steak’n Shake and sat about ten to twenty feet away. Jackson began to threaten and verbally abuse Hamilton and Dustyn on account of Dustyn’s sexual orientation. Jackson also attempted to goad Dustyn into fighting him and even blocked the door so no one could leave. At one point, Jackson went outside and continued taunting Hamilton and Dustyn by repeatedly pounding on the windows and yelling for Dustyn to come outside and fight him.
The tension between the two groups escalated over the course of approximately thirty minutes. The server was aware of the verbal exchange and the nature of the insults and informed the cook/manager of the confrontation between the groups. Neither of the Steak’n Shake employees took any action to intervene while the groups were seated at their tables, nor did they contact Steak’n Shake’s security agency or the police to defuse the situation.
The confrontation continued to intensify as the two groups made their way toward the cash register. The server and the cook stood behind the counter observing the heated exchange between the groups. Only after it seemed as though a physical altercation was imminent did the cook/manager address the groups, saying several times, “Hey, you guys got to stop it and leave.” None of the individuals heeded the order and moments later, a physical altercation ensued between Jackson and Dustyn inside the Steak’n Shake near the cash register. Hamilton inserted herself into the fray to help her brother and in response to Jackson repeatedly calling her names. After Hamilton hit Jackson in the face, Jackson pulled out a gun and shot Hamilton point blank in the face, causing Hamilton to suffer serious injuries. After the physical confrontation started, the server called for help, and after the gun was fired, the cook ran across the street to a nearby business to summon help.
On first blush, this might seem to be Goodwin all over again: you have one patron of the establishment shooting another. Or, if you extend it a bit further, it could look just like Rogers: you have one invitee on the property getting in a fight with another. So why then did the Court of Appeals find a duty and why do I think the court was right to do so? For that, let’s turn to Judge Altice’s decision.
Here is how he read Goodwin as opposed to the facts before him in Hamilton:
In Goodwin, a patron at a neighborhood bar overheard what he believed was a derogatory comment about his wife. That patron produced a handgun and fired it, striking the offending customer as well as two other customers sitting at a separate table. There was no prelude to the attack, nor was there any involvement of the bar’s staff preceding the verbal exchange and shooting.
Importantly, you should notice, is that Judge Altice recognized that the shooting in Goodwin came out of nowhere. There really was no reason for a bar owner to expect a patron to shoot another patron. But, what if the two patrons had been going at it for an extended period of time with the bar owner seeing every bit of it? Would the analysis just be that a bar owner cannot foresee one patron shooting another? Steak’n Shake certainly contended the answer would be that there still is no duty. But that’s not how the Court of Appeals saw it:
We find Steak’n Shake's position too narrow. While in Goodwin the Court declared that “a shooting inside a neighborhood bar is not foreseeable as a matter of law,” such statement followed the Court’s conclusion that bar owners do not “routinely contemplate that one bar patron might suddenly shoot another.” The bar did not know or have reason to know that the third party would act in such manner. Indeed, the conduct of the third party was sudden and without warning.
So Goodwin was distinguishable, but what about Rogers? The Court of Appeals actually found Rogers instructive, not needing to be distinguished:
In Rogers, however, the Court identified a second situation presented by the facts that required an independent determination as to whether the landowner owed a duty to her invitee. The Court determined once the landowner observed her injured guest lying motionless on the floor, the landowner had a duty to render assistance. The landowner’s knowledge of the guest’s injury was crucial to assessing foreseeability, and in turn, to the determination that the landowner owed a duty. The Court noted that a landowner “should reasonably expect that a house-party guest who is injured on the premises could suffer from an exacerbation of those injuries.”
That is, the homeowner who knows nothing at all about two guests fighting, is the homeowner who owes no duty to social guests to protect them from attack by a co-host. But the homeowner who has knowledge is more than just a homeowner:
As argued by Hamilton, we find that the factual scenario presented is akin to the second situation identified by the Supreme Court in Rogers, wherein the Court redefined the broad type of plaintiff and harm in terms of the landowner’s knowledge that a house-party guest had been injured. The Rogers Court concluded that the landowner’s knowledge that the house-party guest had been injured gave rise to a duty to take precautions to protect the injured guest from exacerbation of those injuries. Similarly, here, Steak’n Shake’s knowledge of the events taking place on its premises gave rise to a duty to take reasonable steps to provide for patron safety.
Here, we define the broad type of plaintiff and the broad type of harm in terms of foreseeability. Hence, the broad type of plaintiff is a restaurant patron who has been subjected to escalating threats and taunts and the broad type of harm is injury resulting after the encounter culminated in physical violence. Steak’n Shake did not have to know the precise harm that would befall its customer, only that there was some probability or likelihood that one of its patrons could be harmed and that the potential harm was serious enough that a reasonable person would have been induced to take precautions to avoid it. An escalating thirty-minute encounter that included verbal threats and taunts, blocking of the exit, and pounding on windows in an effort to incite a physical altercation, all of which Steak’n Shake had knowledge, clearly created some likelihood that one of Steak’n Shake’s patrons could be harmed and that the potential harm could be serious. Given the circumstances, we conclude that Steak’n Shake had a duty as a proprietor to take reasonable steps to provide for patron safety once the raucous behavior came to its attention. This is not to say, however, that Steak’n Shake was negligent, as issues of breach and proximate cause must still be determined by a trier of fact.
And there was one more point made in Hamilton that really cuts through the muck of trying to force logic by analogy of cases. In a footnote, the court added: “To accept Steak’n Shake’s identification of the broad type of plaintiff and broad type of harm would essentially extend immunity to proprietors for any harm to a patron resulting from acts of a third party, criminal or otherwise, regardless of the circumstances.” As I said way back at the start, the standard that “[l]andowners have a duty to take reasonable precautions to protect their invitees from foreseeable criminal attacks” is entrenched into Indiana law. That standard would be moot if Goodwin and Rogers are read more broadly than their facts and corresponding analyses dictate.
Astonishingly, as of the time of writing this post, which is the thirtieth day after the order was issued, neither a petition to transfer nor a petition for rehearing shows on the docket. That is important because the deadline to seek either rehearing or transfer is thirty days after the decision, which would be midnight tonight. It is possible that a petition has been submitted to the Clerk’s office and is awaiting approval before being docketed, that we may not know until midway through next week. I expect transfer will be sought and, unless the Indiana Supreme Court is dead set that Hamilton is way off base, I expect transfer will be denied. The court may eventually draw a line more narrowly than Hamilton, but I do not expect these facts to be the case in which the decide to do so.
The reason the petition for transfer was not showing as of the time of the original posting was that there was a defect in the petition. Following notice of defect, the defect has been cured and the petition to transfer has been accepted as filed.
On May 31, 2018, the unanimous Indiana Supreme Court denied transfer, making this ruling binding authority.
Join us again next time for further discussion of developments in the law.
- Hamilton v. Steak’n Shake Operations Inc., 92 N.E.3d 1166 (Ind. Ct. App. 2018) (Altice, J.), trans. denied.
- Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016) (Rucker, J.).
- Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016) (Rush, C.J.).
*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.