Today, we once more travel the increasingly well-worn path of examining the question of when a business proprietor owes a duty to patrons to prevent harm caused by activities on the premises. We last discussed the topic following the Indiana Supreme Court’s opinion in Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield. The primary question in this area of law is whether the harm that befell the patron was sufficiently foreseeable for a duty to attach. Cavanaugh’s was an important development not because the case did much to alter the landscape of emerging caselaw but, rather, because it put a stamp of approval by the Indiana Supreme Court on an important development that had arisen in decisions from the Indiana Court of Appeals. Chiefly that while a proprietor may not foresee a “sudden” attack by one patron on another, the circumstances leading up to the attack may be sufficient such that it was not in fact sudden, making it foreseeable.
This week, the Indiana Court of Appeals once more addressed the issue in Bojak’s Bar & Grille v. Henry, which will serve as our primary focus. Before we delve into Bojak’s, we pause to look very quickly at a decision from the Eighth Circuit that provides a useful example for persons opposing summary judgment in actions arising from injuries caused by uneven sidewalks. Shanner v. United States was a Federal Tort Claims Act applying Arkansas tort law. In reversing the district court’s entry of summary judgment for the defendant on the assertion that the uneven condition of the sidewalk was an open-and-obvious danger, the Eighth Circuit recognized:
In resolving the obviousness question in favor of the Government, the District Court relied on the fact that, after the incident, both Mr. Shanner and the investigating police officer were able to identify the uneven portion of the sidewalk. During the pendency of this appeal, the Supreme Court of Arkansas has clarified that whether a hazard is identifiable in a targeted after-the-fact search is not dispositive of whether the hazard would have been obvious to someone exercising ordinary caution in the conduct of his or her normal activities. Although the after-the-fact examination in Elder was conducted by an expert, not a layperson, the status of the examiner is not decisive. It defies experience and common sense to hold a person exercising ordinary care while going about his or her normal activities to the same epistemic standard as someone who is searching for the cause of an accident after it has taken place.
Because after-the-fact recognition of the uneven sidewalk is not dispositive of what would have been apparent to a reasonable person “exercising ordinary perception, intelligence, and judgment,” and the Shanners produced evidence that the uneven sidewalk would not have been apparent to such a person, the District Court erred in granting summary judgment to the Government on that issue.
Given that the federal summary-judgment standard is much more defendant friendly than Indiana’s, this decision may prove highly useful to injured Hoosiers facing similar challenges.
Returning to Bojack’s, in order to understand the court’s conclusion, we must start with the underlying facts:
At some point approximately a week prior to August 19, 2018, Marcus Henry and his friends were involved in a verbal altercation with Keith Knura and Knura’s friends over a hat. On August 19, 2018, both Henry and Knura were at BoJak’s, a bar located in Franklin, with their respective friends.
Upon arriving at BoJak’s, Henry and his friends informed BoJak’s security about their prior altercation with Knura. Despite never having had any issues with Knura being violent in the past, BoJak’s security observed the two groups throughout the night, and “everything appeared to be fine.” The two groups interacted without incident throughout the evening. However, believing that the groups required extra attention, in the time that both groups were at the bar, BoJak’s security checked on the groups “more than ten times” and kept a “constant watchful eye.” At some point towards the end of the evening, Knura physically assaulted and injured Henry when he “sucker punched” Henry, hitting him multiple times in the head before running away.
After suit was filed, the bar moved for summary judgment, arguing that it owed no duty because the sucker punch was unforeseeable. The trial court denied the motion but permitted immediate interlocutory appellate review. The Court of Appeals focused in on just two of the controlling decisions: Goodwin v. Yeakle’s Sports Bar & Grill, Inc. and Hamilton v. Steak’n Shake Operations Inc. Somewhat surprisingly, the court did not mention Cavanaugh’s.
Goodwin was the Indiana Supreme Court decision from 2016 that largely reshaped the landscape of foreseeability for such claims and required resolution of the foreseeability to be based not on the specific persons at issue but the broad type of plaintiff involved and broad type of harm. Hamilton recognized the “sudden” distinction that was memorialized in Cavanaugh’s. Specifically, Hamilton found that a restaurant could be held liable where there was a build-up to a fight that was observed by the restaurant’s employees.
Applying the principles of Hamilton, the Court of Appeals affirmed the denial of summary judgment:
As was the case in Goodwin and Hamilton, the question presented herein is whether a duty exists. If a duty exists, the trial court properly denied summary judgment; if a duty does not exist, summary judgment should have been granted. We believe that given the facts in this case, which are more akin to those in Hamilton than those in Goodwin, BoJak’s owed a duty to Henry and, as such, the trial court properly denied BoJak’s motion for summary judgment.
The incident in this case was not an unforeseeable sudden act that occurred without warning. The designated evidence clearly establishes that BoJak’s staff knew of prior tension between the two groups and had specifically been warned of an altercation that had occurred between the two groups the week before. BoJak’s security felt the two groups required extra attention, checking on them more than ten times and keeping a “constant watchful eye.” We conclude that these facts are sufficient to create a duty for BoJak’s to take reasonable steps to provide for Henry’s safety while on the premises. This is not to say, however, that BoJak’s was negligent, as issues of breach and proximate cause must still be determined by a trier of fact.
Ultimately BoJak’s is yet another reminder that the question of duty really is one taken from all of the surrounding circumstances and assessing whether the proprietor should have known that harm may be inflicted upon the patron by a third-party. It also stands as a reminder to not overly rely on Goodwin as the landscape of caselaw has done a great deal to expand our understanding of Goodwin since it was handed down.
Join us again next time for further discussion of developments in the law.
- Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, 140 N.E.3d 837 (Ind. 2020) (Massa, J.; Goff, J., dissenting).
- Bojak’s Bar & Grille v. Henry, 170 N.E.3d 264 (Ind. Ct. App. 2021) (Bradford, C.J.).
- Shanner v. United States, 998 F.3d 822 (8th Cir. 2021) (Pitlyk, J.) (applying Arkansas law).
- Dollar Gen. Corp. v. Elder, 2020 Ark. 208, 600 S.W.3d 597 (Ark. 2020) (Hudson, 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.
- Colin E. Flora, Indiana Supreme Court Revisits Bar-Owner Liability for Injuries to Patrons, Leaving Caselaw Largely Undisturbed, Hoosier Litig. Blog (Apr. 26, 2013).
- Colin E. Flora, Indiana Court Explains Meaningful Difference Between State & Federal Summary Judgment Standard, Hoosier Litig. Blog (Dec. 13, 2013).
- 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).
*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, client or otherwise, should act or refrain from acting on the basis of any content included herein without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.