Today’s discussion takes back to one of the most meaningful and still developing issues in Indiana personal-injury law: the question of under what circumstances does a property owner owe a duty to protect invitees to the property from criminal acts. The law is clear, landowners are not insurers of their invitees’ safety. That does not mean, however, that a landowner is wholly absolved of all responsibility to those who it chooses to allow on its property, even when the injury arises from the criminal conduct of third persons. The catalyst for our return to the topic, is the Indiana Court of Appeals issuance of Singh v. Singh, earlier this week.
As we often do before taking a deep dive on the primary topic of the discussion, we pause to acknowledge a handful of other notable takeaways from Indiana caselaw since our last post. We begin with Humphrey v. Tuck from the Indiana Supreme Court. Humphrey sought to clarify the evidentiary burden upon a defendant at trial in order to entitle it to issuance of a jury instruction on an affirmative defense. The court concluded:
Thus, under Indiana law, the party seeking an instruction need only produce some evidence—a “scintilla”—of each element of the underlying claim or defense. There is an important symmetry here. No party—neither plaintiff nor defendant—need affirmatively prove its claim or defense before the trial court instructs the jury on the issue. The party need only point to some evidence in the record that when viewed most favorably would suffice for a reasonable juror to decide the issue in the party’s favor.
While I generally agree with the court’s analysis and conclusion, I think, the court would have been wise to either define the requirement as a “scintilla” or as “some,” as a scintilla would indicate the most minute particle of measurement and “some” provides no specificity in quantity. Whatever the actual, rather-low threshold is, that the determination is confined to the sound discretion of the trial court and that any alleged error on appeal must be more than harmless, ensures that the boundary between “scintilla” and “some” will rarely, if ever, prove determinative.
Also of note is Franciscan ACO, Inc. v. Newman, which provided insight into what circumstances an adult child may be deemed a dependent for purposes of Indiana’s General Wrongful Death Statute. The case also reminds that an answer to a complaint that admits claims of liability constitutes judicial admissions that entitle the plaintiff to judgment on liability. Joining Newman in the list of notable decisions is Perkins v. Fillio, in which the Indiana Court of Appeals ruled that the same duty to keep a proper lookout that applies to motor-vehicle cases also applies in premises-liability actions and would require a person among livestock to keep a lookout for dangers posed by the animals. And, finally, we look briefly at the unpublished memorandum decision in Hammond v. Gillespie, which shows that even though not explicit in Indiana Appellate Rule 43, the Indiana Court of Appeals prefers that the font of text in footnotes match the font of text in the body of briefs, remaining uniform throughout.
That jaunt into other cases completed, we return to our primary discussion. We most recently discussed the topic of a landowner’s duty in light of the Indiana Supreme Court’s ruling in Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, earlier this year, in which a slim majority (3–2) of the court ruled that a bar did not owe a duty to a patron who was injured in a parking lot brawl with another patron, vacating a contrary opinion from the Indiana Court of Appeals in the process.
Over the last several years, Indiana caselaw has established that a property owner’s duty turns on the foreseeability of the criminal conduct. But, unlike foreseeability in the determination of proximate cause, which is a matter for a jury, when determining whether a duty exists, the question of foreseeability requires the court to consider “the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence.” The Indiana Supreme Court and several panels of the court of appeals have applied foreseeability in this context narrowly and the difference from one case to another can turn on very specific facts. For example, it has been held that it is not foreseeable from the perspective of a bar that one patron would suddenly shoot another patron. But, as we have previously discussed, that analysis changes when a proprietor witnesses a prior disturbance between patrons that ultimately escalates to a shooting. Similarly, a brawl in a parking lot may not be enough, as in Cavanaugh’s, but a patron getting his jaw broken by another unruly patron who had been bounced from a bar was foreseeable.
Singh falls into the category of cases from the court of appeals that have found the specific circumstances at issue sufficient to establish a duty. The criminal act was a stabbing and other physical attacks on a person at a Sikh place of worship, a gurdwara. Two rival groups vied for control of the gurdwara, which led to one group attacking the plaintiff. The plaintiff brought suit against numerous individuals and the gurdwara to recover for his injuries. Finding that there was a duty, the court of appeals wrote:
Here, the designated evidence reveals that, on the weekend prior to the April 15th incident, shouting in the main building disrupted the selection of a new Executive Committee, that the selection process was relocated, that law enforcement was called, and that, when “around eight officers came in,” everybody was asked to leave. After the election, the Committee took steps to avoid further disturbances, including not announcing the committee selection, hiring extra security, and issuing membership termination letters for twelve members.
On the day [Plaintiff] asserts [ ] a Gurdwara Hargobind board member stabbed him, more security guards were present on the premises than on the election Saturday. Signs were posted in the gurdwara that restricted photos or videos because of bad publicity and people becoming argumentative. That day, people carried weapons, which the designated evidence reveals was a normal practice, and carried weapons inside the place of worship, which [Plaintiff]’s designated evidence indicated “was not normally done.” Further, members of the board and committee, including [ ] the president of the Gurdwara Hargobind committee, terminated the memberships of twelve individuals by letter and, in anticipation that certain individuals had not received the notice, hired a Marion County Sheriff’s deputy to hand out the letter the day of the incident and to prevent entrance to the premises. Two of the four designated video recordings, when viewed together, contain footage of [the president] and an entourage escorting [another person] through the temple’s prayer room, as well as of an individual wielding a spear. [The president] can be seen shoving [another person], who turns around and confronts him. Moments afterwards, individuals already inside the prayer hall surround [the two men], and the escort group, other individuals enter the room, a large crowd forms, and several physical skirmishes break out across the prayer hall. It is during this time that the stabbing in question occurs. We note that unlike in Cavanaugh’s, which involved third parties, i.e., a bar patron fighting with another departing bar patron in the parking lot, the present case involves  the president of the Gurdwara Hargobind committee, shoving [another person], which happened seconds before the larger fracas began when [Plaintiff] was allegedly stabbed by a board member.
On these facts, we find that Gurdwara Hargobind had notice of present and specific circumstances that would cause a reasonable person to recognize the risk of an imminent criminal act, and had reason to recognize the probability or likelihood of looming harm on a special day of celebration at which its change in leadership was to be announced and the new Board of Directors was to take charge.
What can we take away from Singh? First, the distinction between sudden attacks and those that result from escalating circumstances that was acknowledged in Cavanaugh’s and had arisen in other appellate decisions seems to clearly apply to Singh. By tracing the surrounding circumstances, the knowledge of persons in charge of the gurdwara, and the known history of events, the court of appeals again shows that knowledge of developing circumstances can be key to the analysis. But, second, there is a much bigger takeaway from Singh: the escalation does not have to be confined to a single day. The court looked back to events that were the weekend prior. And, third, the case shows that knowledge of tension between groups may be enough to foresee that persons may be injured as a result of those groups ultimately turning tensions into physical altercations.
I think Singh is an easily overlooked addition to the ever-growing line of proprietor-duty cases because it is relatively dense in facts but not overly detailed in analysis. But the practice of developing law through caselaw is the application of logic by analogy, comparing one set of circumstances with another to attempt to reach a just and similar result. By looking at what facts the court though important in Singh, we see that the analysis takes into account all facts that would tend to lead a reasonable person in the position of the property owner to foresee the type of harm that ultimately occurred, and it is not confined to a single moment, hour, night, or week.
Join us again next time for further discussion of developments in the law.
- Singh v. Singh, 155 N.E.3d 1197 (Ind. Ct. App. 2020) (Brown, J.).
- Humphrey v. Tuck, 151 N.E.3d 1203 (Ind. 2020) (Slaughter, J.).
- Franciscan ACO, Inc. v. Newman, 154 N.E.3d 841 (Ind. Ct. App. 2020) (Robb, J.), trans. denied.
- Perkins v. Fillio, 155 N.E.3d 626 (Ind. Ct. App. 2020) (May, J.), trans. denied.
- Hammond v. Gillespie, No. 19A-CT-3027, 2020 Ind. App. Unpub. LEXIS 1098 (Ind. Ct. App. Sep. 3, 2020) (unpublished) (May, J.).
- Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, 140 N.E.3d 837 (Ind. 2020) (Massa, J.; Goff, J., dissenting).
- Indiana General Wrongful Death Statute, codified at Ind. Code § 34–23–1–1.
- Colin E. Flora, Indiana Supreme Court Revisits Bar-Owner Liability for Injuries to Patrons, Leaving Caselaw Largely Undisturbed, Hoosier Litig. Blog (May 1, 2020).
- 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).
- 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, 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).
*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.