October, 2023
What duties do landowners owe to customers and patrons of their establishments? What about the criminal acts of a third-party: is a landowner also responsible for those? These are questions that local business owners face on a frequent basis when they are confronted with situations that produce unique challenges.
As a general rule, landowners must exercise reasonable care to protect customers from foreseeable harm but they are not the insurers of the customer’s safety. Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016). However, business owners may face issues that are unforeseeable such as the criminal actions of one of their customers against another customer. What is expected of them in that situation? The Indiana Supreme Court addressed this issue in a case during 2020.
In Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, a fight broke out in the parking lot of a bar at 3 A.M. and an individual was severely injured. 140 N.E.3d 837, 838 (Ind. 2020). The bar owner was sued and the plaintiff alleged that the owner failed to exercise reasonable care to protect him from the criminal actions of a third party. The bar owner moved for summary judgment but that motion was denied. The Indiana Supreme Court reviewed the trial court’s decision to deny summary judgment and ultimately disagreed with the trial court.
The Indiana Supreme Court found that the attack was unforeseeable because there was absolutely no indication or sign of hostility while the patrons were inside the bar. While reversing the lower court’s ruling, the Indiana Supreme Court emphasized that the bar owner had no reason to suspect that the assailants would behave violently up until the point when the fight broke out.
However, there are cases in which a criminal act committed by a third party can be found to be foreseeable. In Hamilton v. Steak ‘n Shake Operations Inc., 92 N.E.3d 1166 (Ind. Ct. App. 2018), trans. denied., Amber Hamilton, the plaintiff, was shot by another patron during a physical altercation inside a local Steak ‘n Shake restaurant. Hamilton alleged that Steak ‘n Shake was negligent in protecting her from the criminal act of another customer. The trial court cited Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016) and Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016) when granting summary judgment in favor of Steak ‘n Shake and determined that the restaurant did not owe Hamilton a duty to protect her from unforeseeable criminal acts.
Hamilton appealed the trial court’s decision. The Court of Appeals considered whether Steak ‘n Shake owed a duty to the plaintiff and whether summary judgment was proper. In holding that the restaurant did owe a duty to the plaintiff, the Court assessed foreseeability in the context of duty and “whether there is some probability or likelihood of harm that is serious enough to induce a reasonable person to take precautions to avoid it.” Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 367 (Tenn. 2008).
The Indiana Supreme Court’s prior decisions provide clarity on the issue of foreseeability. In Goodwin and Rogers, the Indiana Supreme Court had set forth the test to evaluate foreseeability relating to the duty a landowner owes to an invitee: “foreseeability is a general threshold determination that involves an evaluation of (1) the broad type of plaintiff and (2) the broad type of harm.” To determine whether this duty, as a matter of law, extends to the criminal act at issue in a particular scenario, the critical inquiry is to determine whether the attack was foreseeable, considering the broad type of plaintiff, the broad type of harm, and whether the landowner had reason to expect any imminent harm. Cavanaugh’s Sports Bar & Eatery, Ltd., 140 N.E.3d at 844.
The Court in Hamilton likened the factual scenario to that of Rogers, to show that Steak ‘n Shake’s knowledge of the events unfolding on its premises gave rise to the duty to take reasonable steps to ensure the safety of the patrons. The escalating nature of the events leading up to the shooting gave notice that there was a probability of a customer being harmed and that a reasonable person would be inclined to avoid that situation. These events included a thirty-minute argument with verbal threats and inflammatory taunts, the prevention of patrons from leaving the establishment, and the pounding of windows to incite a physical fight. Hamilton, 92 N.E.3d at 1167. Accordingly, the trial court’s order of summary judgment was reversed and the case was remanded to the lower court for the jury to determine issues of breach and proximate cause.
In summary, landowners generally only owe a duty to exercise reasonable care to protect patrons from foreseeable harm, but the landowner can owe a duty to protect their patrons from the criminal acts of a third-party in certain circumstances, as discussed above. Whether that higher duty of care exists involves a highly fact-sensitive inquiry. If the landowner has knowledge of an escalating situation that creates the possibility of a patron being harmed, a duty to protect may exist. However, each case is different and the duty hinges on unique factual circumstances.
It is important to seek legal counsel from an Indiana attorney in a situation like this. The Premises Liability Team at Norris Choplin Schroeder L.L.P. can walk you through this process.
