Today’s discussion returns us to a topic we’ve examined with a tremendous amount of regularity, over the past two years: when is a possessor of land—almost invariably a business—liable for the criminal acts of one person on another. We first looked to the matter following the Indiana Court of Appeals’ ruling in Hamilton v. Steak ’n Shake Operations, Inc., which appeared to narrow the scope and harshness of Goodwin v. Yeakle’s Sports Bar & Grill, Inc. and Rogers v. Martin. The key to Goodwin and Rogers was the dictate that in order to establish a duty on the part of a possessor of land to protect an invitee from harm caused by a third person, the harm needed to be foreseeable as established by analyzing whether “(1) the broad type of plaintiff and (2) the broad type of harm” were foreseeable.
In Goodwin, the Indiana Supreme Court ruled that a bar owed no duty to a patron who was suddenly and unexpectedly shot by another patron. The same day, the Indiana Supreme Court also handed down Rogers, concluding that a homeowner owed no duty to protect a party guest from her boyfriend with whom she co-hosted the party. The basis of the conclusion was: “Although house parties can often set the stage for raucous behavior[,] . . . to require a homeowner to take precautions to avoid this unpredictable situation would essentially make the homeowner an insurer for all social guests’ safety.” The homeowner did, however, owe a duty to the injured guest to safeguard him from further harm after discovering him listless.
That takes us to Hamilton, in which the Indiana Court of Appeals recognized a gap left open by Goodwin and Rogers: the non-sudden attack occurring after escalating circumstances known to the proprietor of the establishment. Following Hamilton, the Indiana Court of Appeals built on that opening with Certa v. Steak ’n Shake Operations Inc. As we’ve discussed, like Hamilton, Certa found a duty on the restaurant stemming from escalating tensions between patrons that later spilled outside the restaurant.
On the heels of Hamilton and Certa came a decision from the United States District Court for the Southern District of Indiana, in which Chief Judge Magnus-Stinson determined that a fraternity owed a duty to safeguard a guest from sexual assault by a member who was known by the fraternity to have had a prior allegation of sexual assault. Followed by Buddy & Pals III, Inc. v. Falaschetti, finding a duty owed to an patron who was punched in the jaw while exciting the facility by a drunk patron who had been bounced from the establishment and had tried to get back in.
Not every case that went to the Indiana Court of Appeals found a duty owed by a business to its criminally injured patron. We have addressed a couple of those decisions in prior posts, specifically Cosgray v. French Lick Resort & Casino (discussion) and Rose v. Martin’s Super Markets L.L.C. (discussion). Similar results were also reached in Powell v. Stuber and Jones v. Wilson, both of which were issued before Hamilton.
Review by the Indiana Supreme Court was sought in all but two cases just discussed—Cosgray and Jones are the outliers. And the court denied review in every instance. Questions were certified by Chief Judge Magnus-Stinson, but the Indiana Supreme Court denied consideration of the certified questions. That all changed, however, after the court of appeals ruled that there was a duty owed to the patron in Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield. It is the Indiana Supreme Court’s decision in Cavanaugh that brings us once more to the topic.
Before we jump into our discussion of Cavanaugh, a couple decisions from the past week merit our attention. Crouch v. State and its companion Bowling v. State, from the Indiana Court of Appeals, remind us, while claims against municipalities and individuals, are cognizable under 42 U.S.C. § 1983, claims against the State and its administrative agencies are not, unless it is a claim brought against a state employee in his or her official capacity seeking prospective relief, such as an injunction. And Speedy Wrecker Service, LLC v. Frohman ruled that Indiana Code § 9-22-1-16 permits towing of a vehicle from private property that disrupts ordinary business without need to post notice and wait 24 hours as otherwise required by § 9-22-1-15, which allowed a business that rented parking spaces to immediately tow a vehicle parked in a lot without a valid parking tag.
Now we return to Cavanaugh. Notably, it was a decision on which only three justices signed. The other two justices, Justices David and Goff, dissented. Cutting to the chase, the majority looked favorably on each of the decisions we’ve discussed with the lone exception of the court of appeals’ opinion in Cavanaugh. The majority determined the inferior courts had errantly relied on the fact that numerous prior calls had been placed to police regarding fights in the parking lot of the bar at issue. Such evidence, though useful for determining foreseeability in proximate cause is not appropriate in determining foreseeability for the purpose of establishing duty. Because the particular fight that blinded Cavanaugh occurred “suddenly” without any prior knowledge by the bar of trouble between Cavanaugh’s compatriots and the cohort that led to the injury.
The dissenting opinion, authored by Justice Goff and joined by Justice David, saw things differently. In the esteem of the dissenting justices, the majority opinion “raises the bar of the question of foreseeability in the context of duty by requiring contemporaneous evidence of imminent harm.” The majority opinion, however, notes that it does no such thing; “[i]nstead,  recogniz[ing] that this circumstance—current knowledge of imminent harm—has driven the outcome of Court of Appeals cases applying [the court’s] precedent over the past three years. Concurrent knowledge of imminent harm is a sufficient, not necessary, condition of foreseeability in the duty context.”
The dissent also thought the prior calls to police, though not necessarily determinative, certainly had a proper place in the analysis: “in defining the general categories of plaintiff and harm, prior similar incidents, which show the defendant’s knowledge in the same way that contemporaneous evidence does.” Indeed, the dissent would have utilized what it called common-sense approach and found:
that the broad type of plaintiff here is a bar patron, and the broad type of harm here is injury resulting from a fistfight at the bar’s early morning closing time. While “a shooting inside a neighborhood bar is not foreseeable as a matter of law,” a closing-time fistfight is. We’ve already recognized the common-sense notion that “bars can often set the stage for rowdy behavior.” Indeed, the fact that bouncers exist and the commonplace depictions of barfights in popular culture, to name a couple examples, prove the point. Similarly, I believe that most people would agree that the combination of such rowdy behavior, alcohol, and late hour (or early, depending on your perspective) sets the stage for potential disagreements and physical altercations. Said differently, few people would be surprised to learn that a run-of-the-mill fistfight broke out right after a bar closed at 3 a.m. I believe that reasonable people would recognize the unremarkable nature of a fistfight involving bar patrons at the bar’s early morning closing time, and they would take precautions to avoid it. Thus, I would hold that Cavanaugh’s owed a duty to protect Porterfield from this foreseeable fight, and I would affirm the trial court’s denial of the summary judgment motion.
Such a holding is more limited than the majority and Cavanaugh’s fear. This holding’s precedential value would be limited to cases involving the same classes of plaintiff and harm identified here; it would not impose a duty on every bar in the state. And after a duty is found here, Porterfield would still have to prove the other elements of negligence—breach and proximate causation of a compensable injury—before Cavanaugh’s could be held liable. Proving these elements would not be an easy task. To the contrary, when the facts are no longer viewed in Porterfield’s favor and when Cavanaugh’s presents evidence of its security practices and actions here, a jury could easily find that Cavanaugh’s was not responsible for Porterfield’s injuries. Simply put, allowing this case to proceed falls well short of imposing liability on Cavanaugh’s or any other bar in the state.
So, you ask, which opinion would I have signed onto? It is quite a difficult matter. The majority opinion, I think, is useful in so much as it analyzes the opening recognized in Hamilton and then marches through the other relevant cases in that light. The problem, however, is that the majority opinion seems too narrowly focused on the Hamilton exception and does not give sufficient consideration of whether the dissent is correct that a fight in a bar parking lot during early-morning hours is per se foreseeable.
The dissent, however, is not without problem, chiefly, I think, that it reaches a conclusion I do not see in line with Goodwin. That a patron would shoot another patron with a gun versus doing harm to a patron with a fist, I think is an immaterial distinction. That may be best highlighted by trying to articulate the specific duty at hand. If we adopt the position of the dissent, then the duty may be said to be: A bar owes a duty to protect its patrons from suffering injury in a parking lot from a fist fight occurring in the early-morning hours. But that would not be correct, would it? Let’s take the widely publicized altercation occurring at a White Castle in Indianapolis last spring involving members of the judiciary and two other individuals. There, a fist fight shifted into a shooting. Were that a bar parking lot, might there then have been a duty to protect the patrons only up to the point that a gun was drawn? That appears an unreasonable cessation of a duty. The Supreme Court of the United States tells us that the Second Amendment protects the right to self-defense through use of a firearm. That is to say, firearms are not an unforeseeable addition to fisticuffs. Put simply, I see no basis for determining the existence of the duty by the instrument of the attack.
So, then, you must think I side with the majority. This is a situation in which I find my opinion mirroring that of recently retired Justice Rucker in Patchett v. Lee, wherein he concurred with the majority opinion, writing, “Largely for reasons the majority explains I agree ‘the rationale of Stanley v. Walker applies equally to reimbursements by government payers.’ I write separately however because I continue to believe Stanley was wrongly decided.” In light of Goodwin, I would have signed onto the majority—almost certainly by way of concurrence. The approach taken in Goodwin, however, I think merits revisiting.
Join us again next time for further discussion of developments in the law.
- Hamilton v. Steak ’n Shake Ops. Inc., 92 N.E.3d 1166 (Ind. Ct. App.) (Altice, J.), trans. denied, 102 N.E.3d 289 (Ind. 2018).
- 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) (Ruch, C.J.).
- Certa v. Steak ’n Shake Ops. Inc., 102 N.E.3d 336 (Ind. Ct. App. 2018) (Barteau, S.J.), trans. denied.
- Doe 26 v. Delta Tau Delta Beta Alpha Ch., No. 1:16-cv-1480, 2018 U.S. Dist. LEXIS 115138, 2018 WL 3375016 (S.D. Ind. July 11, 2018) (Magnus-Stinson, C.J.).
- Buddy & Pals III, Inc. v. Falaschetti, 118 N.E.3d 38 (Ind. Ct. App.) (Crone, J.), trans. denied, 124 N.E.3d 60 (Ind. 2019).
- Cosgray v. French Lick Resort & Casino, 102 N.E.3d 895, 901 (Ind. Ct. App. 2018) (Riley, J.), trans. not sought.
- Rose v. Martin’s Super Markets L.L.C., 120 N.E.3d 234 (Ind. Ct. App.) (Robb, J.), trans. denied, 129 N.E.3d 775 (Ind. 2019).
- Powell v. Stuber, 89 N.E.3d 430 (Ind. Ct. App. 2017) (Baker, J.), trans. denied, 102 N.E.3d 289 (Ind. 2018).
- Jones v. Wilson, 81 N.E.3d 688 (Ind. Ct. App. 2017) (Kirsch, J.), trans. not sought.
- Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, 123 N.E.3d 170 (Ind. Ct. App. 2019) (Crone, J.), trans. granted, opinion vacated and superseded, 140 N.E.3d 837 (Ind. 2020).
- Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, 140 N.E.3d 837 (Ind. 2020) (Massa, J.; Goff, J., dissenting).
- Crouch v. State, 147 N.E.3d 1026 (Ind. Ct. App. 2020) (Brown, J.).
- Bowling v. State, 147 N.E.3d 1034 (Ind. Ct. App. 2020) (Brown, J.).
- Speedy Wrecker Service, LLC v. Frohman, 148 N.E.3d 1005 (Ind. Ct. App. 2020) (Robb, J.).
- D.C. v. Heller, 554 U.S. 570 (2008) (Scalia, J.; Stevens, J., dissenting; Breyer, J., dissenting).
- Patchett v. Lee, 60 N.E.3d 1025, 1033-34 (Ind. 2016) (Rucker, J., concurring).
- Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009) (Sullivan, J.; Dickson, J., dissenting).
- 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).
- 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 (June 8, 2018).
- Colin E. Flora, Indiana: Member’s History of Sexual Assault Exposes Fraternity to Liability, Hoosier Litig. Blog (July 13, 2018).
- 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, What Constitutes Spoliation of Evidence in Indiana and What Can be Done?, Hoosier Litig. Blog (May 11, 2018).
- Colin E. Flora, Indiana Supreme Court Holds that Wrongful Death Claim Does Not End With Death of Heirless Sole Beneficiary, Hoosier Litig. Blog (Mar. 8, 2019).
- Colin E. Flora, Indiana Court of Appeals: Fistfights in Parking Lot are Type of Foreseeable “Rowdy Behavior” Sufficient to Make Bar Liable for Injuries to Patrons, Hoosier Litig. Blog (May 3, 2019).
*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.