You Have A Right To Recovery

Further Considering When a Proprietor Owes a Duty to a Patron to Protect Him from the Criminal Acts of Another

On Behalf of | Jun 8, 2018 | Firm News

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Although the Court of Appeals was largely quiet this week—even a quiet week still has sixteen decisions—last week produced several important rulings that merit discussion. The three most notable were each civil tort cases. Although this post will only focus on Certa v. Steak ‘n Shake Operations Inc., we will briefly discuss two other cases from this week.

Medical Malpractice: Maintaining Records

The first other decision is Henderson v. Kleinman, which shows that regardless of the best of intentions and millennia of legal development, injustices can still be mandated by law. But it also reminds us that those injustices can be and should be remedied. Henderson was a medical malpractice case subject to Indiana’s Medical Malpractice Act. As such, it was subject to the medical-review-panel procedure. The panel found that the doctor violated the standard of care for maintaining records “and that the lack of documentation makes it impossible for the panel to decide whether the evidence supports or does not support a conclusion that the Defendant failed to comply with the appropriate standard of care in his treatment of the Plaintiff.”

The case then progressed to the trial court and the doctor sought summary judgment, submitting an affidavit of an expert concluding that the doctor’s “care . . . was within the applicable standard of care notwithstanding his extremely poor recordkeeping[.]” The plaintiff responded only by relying on the panel’s conclusion. In many cases, that may have been enough, but, as the Indiana Court of Appeals wrote, “This is an extremely unusual case.” With the panel only having found that the record keeping was insufficient but making no finding as to the negligence resulting in the plaintiff’s injury, there was no contrary evidence on that point and summary judgment was affirmed.

The concurring opinion of Judge Najam summarized the injustice afoot and the need for legislative revision to prevent it in the future:

I concur, but write separately to emphasize the injustice caused by Dr. Kleinman’s failure to maintain adequate and accurate medical records, which prevented the Medical Review Panel from rendering an opinion on the merits of Henderson’s medical malpractice claim. As our Supreme Court has acknowledged, “the ‘[m]aintenance of health records by providers’ is . . . closely entwined with health care and . . . records in general are . . . important to a medical review panel’s assessment of whether the appropriate standard of care was met.” It should follow, then, that a health care provider’s failure to maintain documentation of a patient’s treatment sufficient to enable a Medical Review Panel to form an opinion on alleged medical malpractice would support a claim against the provider. I urge our Legislature to amend the Act to provide that health care providers have an affirmative duty to maintain adequate and accurate medical records and that a violation of that duty could support a prima facie medical malpractice claim.

A health care provider’s failure to maintain adequate and accurate medical records is the functional equivalent of spoliation of evidence. While our courts do not recognize an independent tort claim for first party spoliation of evidence, “[i]n Indiana, the exclusive possession of facts or evidence by a party, coupled with the suppression of the facts or evidence by that party, may result in an inference that the production of the evidence would be against the interest of the party which suppresses it.” Such an inference could defeat a summary judgment motion.

Here, Dr. Kleinman had exclusive control over the creation of Henderson’s medical records, which evidence was a necessary predicate for her medical malpractice claim. The inadequacy of those records is akin to the suppression of evidence and supports an inference that adequate medical records would have been against Dr. Kleinman’s interest. As the majority observes, it would be reasonable to assert that a health care provider has an affirmative duty to maintain adequate and accurate records. Such a duty is wholly meaningless without a consequence for a failure to comply. Here, the Medical Review Panel’s inability to evaluate Henderson’s malpractice claim due to a “lack of documentation” should be sufficient to withstand Dr. Kleinman’s summary judgment motion. Nonetheless, we must strictly construe the Act, and because Henderson did not designate any evidence to show that Dr. Kleinman’s conduct fell below the applicable standard of care, I am compelled to agree with the majority that summary judgment for Dr. Kleinman is required.

Lay Opinion Evidence at Summary Judgment

Our next case, D.H. v. Whipple, stems from particularly heinous circumstances. There, a minor was molested by her maternal grandmother’s husband and a claim was brought against the grandmother for negligent supervision and an assumed duty to protect the child. I’ll note that it may seem somewhat odd to sue a family member, but this is often necessary to reach homeowner’s insurance that can provide coverage.

Fortunately, the horrid details are not what we are focused on here. Instead, our focus is on the admissibility of evidence in support or opposition of a motion for summary judgment. It is a topic we touched on last month. us further insight into the issue:

In ruling on a motion for summary judgment, a trial court may only consider material deemed appropriate by Indiana Trial Rule 56(E). . . .

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The affidavit requirements of Trial Rule 56(E) are mandatory and a court considering a summary judgment motion should disregard inadmissible information contained in supporting or opposing affidavits.The party offering the affidavit into evidence bears the burden of establishing its admissibility.

At the summary judgment hearing, Mary alleged that Detective Sanderson’s speculations were based solely on inadmissible hearsay and violated the Indiana Dead Man’s Statute. . . .

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[W]e do not view Deputy Sanderson’s “impression” statement as improper opinion testimony. Mary seemingly confines this argument to one instance: that it was Detective Sanderson’s “impression that, prior to December 20, 2009, Robert B. Whipple informed Mary Whipple that he that he molested a child.” Opinion testimony by a lay witness is limited to those opinions rationally based on some combination of the witness’s own personal observation, knowledge, and past experience.“Lay witness opinion testimony must not only be based on the personal perception of the witness, it also must be ‘rationally’ based on that perception. Thus, speculation or testimony based on improper inferences is inadmissible.”

Here, Mary argues that Detective Sanderson does not have personal knowledge that “prior to December 20, 2009,” Robert informed Mary that he molested a child. In context, immediately preceding that statement, Detective Sanderson stated that “Robert E. Whipple informed me that he had told his wife Mary Whipple that he had molested a girl in the past.” Thus, the issue becomes only whether Robert told Mary that information prior to December 20, 2009—the date of the first molestation underlying Appellants’ cause of action.

In Satterfield v. State, our supreme court explained:

Helpful opinions are not exclusive to experts or skilled witnesses. Any witness “not testifying as an expert”—whether an ordinary lay witness or a skilled witness—may testify “in the form of an opinion” if it is “(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or determination of a fact in issue.” “The requirement that the opinion be ‘rationally based’ on perception simply means that the opinion must be one that a reasonable person could normally form from the perceived facts,” which are facts received “directly through any of the [witness’s own] senses[.]” And the witness’s opinion is “helpful” “if the testimony gives substance to facts, which were difficult to articulate.”

Here, Detective Sanderson’s “impression” is both rationally based on his perception and helpful to a clear understanding of his testimony. Indeed, even absent an express statement, there are countless context clues in the course of a conversation from which the recipient of information can determine, or at least opine, the order in which events occurred. Mary argues, however, that this “impression” is not rational considering Mary’s and Robert’s subsequent testimony—referring to the fact that both Mary and Robert denied having any such conversation. But this is no matter. As noted above, a statement is rational if a reasonable person could form the opinion from the perceived facts and we need not look to other testimony to determine whether the opinion is consistent. Therefore, . . . Detective Sanderson’s “impression” would [ ] be admissible evidence for the trial court’s evaluation on summary judgment.

Property Owner’s Liability for Criminal Acts of Another

That takes us to our primary focus for today, Certa v. Steak ‘n Shake Operations, Inc. This case and its analysis should remind you of a case we discussed two months ago that, as luck would have it, was also against Steak ‘n Shake: Hamilton v. Steak ‘n Shake Operations Inc. In Hamilton, the question was whether Steak ‘n Shake could be held liable for not taking actions to protect a patron after a prolonged period of threats and escalating violence from another patron resulted in a gunshot to the face of a victim. The Court of Appeals of Indiana held that it could be as it did owe a duty in that circumstance.

Certa provided different facts, but a similar outcome. It began with a night out for Mr. Certa and a couple. They arrived at a Steak ‘n Shake in Lafayette, Indiana and saw an argument between a man and a woman. The man pushed the woman against a wall and Certa separated the two “and told the man not to put his hands on the woman.” A third person with the man and woman told Certa to stay out of it and he joined his friends in the restaurant, informing an “employee that there was a physical altercation occurring outside the restaurant. The employee indicated that he would take care of the situation[.]”

The three persons involved in the argument outside also entered the restaurant and were seated. The third person from outside told the server, who happened to be her aunt, that Certa and his friends were intoxicated and that “she just had a feeling that they were going to start an argument or a fight.” After both groups finished and paid their bill, Certa remarked to the server, “If I go out there and that girl runs her mouth[,] the sh**t’s going to hit the fan.”

When Certa exited the restaurant, he saw one of the women from the other group punching his friend. He “ran back into the restaurant and told the employees to call the police.” When he again walked outside, he saw his other friend was now in an altercation. He ran behind the vehicle occupied by the other persons to try and get the plate number. At that time, the driver threw the car in reverse and backed over him.

Before the court was the question of whether Steak ‘n Shake owed a duty to Certa to protect him from the criminal actions over the other persons. Like Hamilton, the starting point for the court was analysis of the Indiana Supreme Court’s recent decisions in Goodwin v. Yeakle’s Sports Bar & Grill, Inc. and Rogers v. Martin. Surprisingly, the Certacourt made no mention of Hamilton. Perhaps the panel was unaware of the decision or, more likely, the panel did not want to base its ruling upon a case in which transfer to the Indiana Supreme Court was being sought. (Two days after the Certawas handed down, the Indiana Supreme Court denied transfer in Hamilton).

Under Goodwin and Rogers, the component of the premises liability duty analysis that is foreseeability presents the question of whether the “broad type of plaintiff and harm involved” was foreseeable, “without regard to the facts of the actual occurrence.” In Certa, the court found:

Application of the broad type of plaintiff and harm analysis is not as narrow as Steak ‘n Shake suggests. In this analysis, foreseeability is the “critical inquiry,” and this inquiry acknowledges that the landowner-invitee duty to protect is not limitless; rather, some harms are so unforeseeable that a landowner has no duty to protect an invitee against them. Yet, even given the “lesser inquiry” that is the broad plaintiff/harm analysis, the court considered what the landowner knew or had reason to know as it concerned the injured party in both Goodwin and Rogers when determining the foreseeability of these events. This approach is consistent with the Restatement (Second) of Torts § 344 cmt. f, which provides, “[s]ince the possessor [of land] is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur.”

For example, in Goodwin, the court acknowledged that bar owners do not “routinely contemplate that one bar patron might suddenly shoot another.” Use of the word “suddenly” indicates that this was an unexpected occurrence relative to the landowner/bar owner. Likewise, in Rogers, the court called the fight an “unpredictable situation” and stated that hosts of parties do not “routinely physically fight guests whom they have invited.” Again, the court’s language reflects the unanticipated nature of the fight vis-à-vis the landowner/homeowner. Finally, with regard to the second issue of duty in Rogers, the court decided that the landowner/homeowner’s knowledge that the guest had been injured gave rise to a duty to protect the guest from exacerbation of the injury occurring in her home. Thus, what the landowner knew or had reason to know is a pivotal consideration in determining foreseeability which Steak ‘n Shake disregards in its analysis.

Accordingly, as did our supreme court in Goodwin and Rogers, we apply the broad type of plaintiff and the broad type of harm analysis and determine the foreseeability of the events with consideration of what Steak ‘n Shake knew or had reason to know. The broad type of plaintiff is a restaurant patron, and the broad type of harm is injury caused by a third party. In determining the foreseeability, we are mindful that Steak ‘n Shake did not have to know the precise harm that its customer would suffer, only that there was some probability or likelihood of harm that was serious enough to induce a reasonable person to take precautions to avoid it. Steak ‘n Shake knew that a heated encounter that began outside the restaurant between two groups of intoxicated people spilled into the restaurant. The Steak ‘n Shake server was told by her niece that she feared a fight would ensue, and the groups exchanged dirty looks and finger pointing while inside the restaurant. In addition, the Steak ‘n Shake server specifically informed her manager that the two groups might be trouble. Further, Certa indicated to the Steak ‘n Shake server that he would retaliate if Gillham engaged him in the parking lot. Given these circumstances, we conclude that Steak ‘n Shake’s knowledge of the events on its premises in this case gave rise to a duty to take reasonable steps to provide for Certa’s safety as a patron of its establishment.

Like Hamilton, the Certa panel focused on the unexpected and sudden occurrences in Goodwin and Rogers to distinguish them from a series of escalating events. With transfer denied in Hamilton, it appears likely that the same result will be reached in Certa, thereby establishing the two cases as interpretations of Goodwin and Rogers binding on all lower courts.

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


*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.