I N T H E 

# Indiana Supreme Court

Supreme Court Case No. 20S- CT -88



## Cavanaugh ’s Sports Bar & Eatery, Ltd.

Appellant (Defendant below)



### –v–



## Eric Porterfield

Appell e e (Plaintiff below)

Argued: October 22, 2019 | Decided: March 3, 2020

Appeal from the Lake County S uperior Court

No. 45D04- 0 710 -C T -288

The Honorable Bruce D. Parent, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 18A- CT -1814

Opinion by Justice Massa

Chief Justice Rush and Justice Slaughter con cur.

Justice Goff dissents with separate opinion in which Justice David joins.Indiana Suprem e Court | Ca se No. 20S

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- 88 | March 3, 2020 Page 2 of 13 

### Massa, Justice.

Eric Porterfield sued Cavanaugh ’ s Sports Bar & Eatery for negligence

after a sudden fight in the bar ’ s parking lot at closing time left him

grievously injured

. Cavanaugh ’ s moved for summary judgment, arguing

that it owed Porterfield no duty because the incident was unforeseeable.

After t he trial court denied the motion

, our Court of Appeals

, in an

interlocutory appeal, affirmed

.

Landowners must “ take reasonable precautions to protect invitees from

foreseeable criminal attacks. ” Rogers v. Martin

, 63 N.E.3d 316, 326 (Ind.

2016) ( citation omitted)

. Ascertaining whether this duty extends to “the

criminal act at issue

, ” Goodwin v. Yeakle's Sports Bar & Grill, Inc. , 62 N.E.3d

384, 389 (Ind. 2016)

, in a “particular scenario

, ” Rogers , 63 N.E.3d at 320

, hinges on the foreseeability of the attack, requiring “ a general threshold

determination that involves an evaluation of (1) the broad type of plaintiff

and (2) the broad type of harm

, ” i d. at 325

. When considering these

categories, courts should determine whether the defendant knew or had

reason to know of any present and specific circumstance that would cause

a reasonable person to recognize the probability or likelihood of imminent

harm.

Under the criminal act at issue in this particular scenario, Cavanaugh’s

owed no duty to protect its patron from the sudden parking lot brawl

when no evidence shows that Cavanaugh’s knew the fight was

impending

. Because w e continue to decline to impose a c omprehensive

“duty on proprietors to afford protection to their patrons” from

unpredictable criminal attacks, Goodwin , 62 N.E.3d at 394, we reverse and

remand.



## Facts and Procedural History

O ne December night

, Eric Porterfield and a friend visited two

nightspots

, stopping at a strip club before heading to Cavanaugh ’ s Sports

Bar & Eatery

. In the crowded but calm Cavanaugh ’ s, the two men

socialized with bartenders and had no disputes with anyone in the bar

. A t

the 3 a.m

. closing time, the men

, along with the rest of the bar ’ s clientele

,Indiana Suprem e Court | Ca se No. 20S

- CT

- 88 | March 3, 2020 Page 3 of 13 left the bar for the parking lot

. Halfway across the lot

, t hey fought with

some other depart ing customers

. The details of th e incident are unclear,

but Porterfield sustained terrible injuries that rendered him permanently

blind

.

Porterfield sued the bar for negligence

, alleging that Cavanaugh ’ s

breached its duty to protect him when the bar was “ located in an area of

criminal activity

, ” was “ known, or should have been known by

[Cavanaugh ’ s], to be frequented by persons with a propensity to engage

in criminal conduct

, ” and “ has experienced criminal activity for years

prior to the attack on Porterfield. ” Appellant ’ s App. Vol. II

, pp. 55

– 56.

Cavanaugh ’ s moved for summary judgment, maintaining that it owe d no

duty to Porterfield because it “ cannot be held responsible for the

unforeseeable criminal acts ” of third parties. Id.

, p.46. Porterfield,

however, argued that the fray was foreseeable because police were called

to Cavanaugh ’ s five times in the year preceding the clash to respond to

fights “ in the parking area, between 3:00 a

. m. and 3:30 a.m. ” Id.

, p.116.

Although it “ did not consider ” Porterfield ’ s evidence supporting that

the bar was historically dangerous

, the trial court nevertheless denied

summary judgment

. Id.

, p.33. To the trial c ourt, “ there simply were not

enough agreed material facts presented ” for it to decide whether

Cavanaugh ’ s owed Porterfield a duty. Id.

, p. 32. On interlocutory appeal,

Cavanaugh ’ s continued to argue that it had no duty to protect Porterfield

because it “ did not see any taunting, arguing, or other contentious

communication between Porterfield and any other patrons while he was

in their establishment

. ” Appellant ’ s Br. at 16

– 17. But t he Court of Appeals

affirm ed, holding that “ parking lot fistfights at closing time are generally

within the type of ‘ rowdy behavior ’ that bar owners should contemplate. ”

Cavanaugh ’ s Sports Bar & Eatery, Ltd. v. Porterfield

, 123 N.E.3d 170, 174 (Ind.

Ct. App. 2019) ( quoting Goodwin

, 62 N.E.3d at 393

– 94 ), vacated

. Indeed, the

panel went on, the “ history of reported incidents ” at Cavanaugh ’ s “ gave it

reason to contemplate further such incidents in its own parking lot. ” Id.

Cavanaugh ’ s sought transfer

, which we now grant. See Ind. App. R.

57(H)( 2 ) (“ The Court of Appeals has entered a decision in conflict with a

decision of the Supreme Court on an important issue. ”) ; (H) (5) (SupremeIndiana Suprem e Court | Ca se No. 20S

- CT

- 88 | March 3, 2020 Page 4 of 13 Court “ precedent is

. . . in need of clarification

. . . in some specific

respect. ”)

.



## Standard of Review

Cavanaugh ’ s contends the trial court erred by denying it summary

judgment. At this stage

, we use “ the same standard as the trial court:

summary judgment is appropriate only when the designated evidence

shows no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. ” Rogers

, 63 N.E.3d at 320 (citing Ind. Trial

Rule 56(C)). To be sure, the parties contest the specifics of the parking

- lot

encounter. But , as discussed below, that disagreement does n o t affect the

threshold legal question of whether Cavanaugh’s owed Porterfield any

duty. Because t he designated evidence shows no genuine issue of material

fact

, we must determine whether Cavanaugh ’ s was entitled to judgment

as a matter of law

, construing all facts and reasonable inferences drawn

from those facts in favor of Porterfield as the nonmovant. Ryan v. TCI

Architects/Engineers/Contractors, Inc.

, 72 N.E.3d 908, 912

– 13 (Ind. 2017). We

review this legal question de novo

, affording no deference to the trial

court ’ s resolution

. Id.



## Discussion and Decision

Porterfield , under our premises liability jurisprudence, accuses

Cavanaugh ’ s of breaching its duty “ to take reasonable precautions to

protect [him] from foreseeable criminal attacks. ” Rogers

, 63 N.E.3d at 326.

To determine whether this well

- established duty extends t o “the criminal

act at issue,” Goodwin , 62 N.E.3d at 389, in a “particular scenario,” Rogers

,

63 N.E.3d at 326, the “critical inquiry” is to answer whether the criminal

attack was foreseeable

, i d. at 32 3

– 24

. But f oreseeability in this context

— as

a component of duty

— is evaluated differently than foreseeability in

proximate cause determinations : while the latter foreseeability analysis

requires a factfinder to evaluate the specific facts from the case

, the former

“ i nvolves a lesser inquiry

, ” requiring a court, as a threshold legal matter,

to evaluate “ the broad type of plaintiff and harm involved, without regardIndiana Suprem e Court | Ca se No. 20S

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- 88 | March 3, 2020 Page 5 of 13 to the facts of the actual occurrence. ” Goodwin

, 62 N.E.3d at 393 (citation

omitted) ; see generally id. at 392 (rejecting a prior

- used totality test because

it “focuses on the particular facts of the case rather than a broader

inquiry” and “is ill

- suited to determine foreseeability in the context of

duty”). By f ocusing “ on the general class of persons of which the plaintiff

was a member and whether the harm suffered was of a kind normally to

be expected

, ” Rogers

, 63 N.E.3d at 325

, courts must “ assess whether there

is some probability or likelihood of harm that is serious enough to induce

a reasonable person to take precautions to avoid it, ” not merely that harm

is “ sufficiently likely

, ” Goodwin

, 62 N.E. 3 d at 392 (quotation omitted)

. “[B]ecause almost any outcome is possible and can be foreseen,” id. , t his

ensure s “ that landowners do not become the insurers of their invitees ’

safety ,” Rogers

, 63 N.E.3d at 324 (quotation omitted)

.

Just over t hree years ago, t his Court a dopted and a pplied these

principles in companion cases handed down on the same day

. First,

because bar owners don ’ t “ routinely contemplate that one bar patron

might suddenly shoot another, ” we held that a bar owed no duty to a

patron who was unexpectedly shot by another. Goodwin

, 62 N.E.3d at 394

. Expressly rejecting the injured patron’s request to consider prior police

reports and evidence of the character of the neighborhood, this Court

emphasized that foreseeability in the duty context is not to be “ premised

on the facts of [a] particular case. ” Id. at 392, 393. This historical

evidence

— while appropriate to consider when assessing foreseeability at

the proximate

- cause stage

— wa s inappropriate to contemplate in the

“ lesser inquiry ” concerning duty. Id. at 393. Ultimately, no present

knowledge informed the landowner that any sudden harm was

impending, and the restaurant didn’t owe the patron a duty to protect him

from the “criminal act at issue.” Id. at 394

, 389

.

And second, a homeowner owed not duty to protect a party guest

suddenly attacked by a co

- host because hosts don ’ t “ routinely physically

fight guests whom they have invited

. ” Rogers

, 63 N.E.3d at 326. “ 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. ” Id. No duty to protect from the unexpected fight was owed to theIndiana Suprem e Court | Ca se No. 20S

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- 88 | March 3, 2020 Page 6 of 13 house

- party guest

. But when the homeowner discovered th at guest listless

in her basement, she owed a duty “ to protect him from the exacerbation of

an injury occurring in her home ” because she should have reasonably

expected that his injuries could worsen. Id. at 327. Unlike the other two

circumstances we examined that day

, “ reasonable persons would

recognize a duty ” when the host in this “ particular scenario ” knew the

guest was injured

. Id. at 327, 32 0

.

W hen evaluating the broad class of plaintiff and broad type of harm i n

these cases

, we acknowledged a key factor is whether the landowner s

knew or had reason to know about any present and specific circumstance s

that would cause a reasonable person to recogn ize the probability or

likelihood of imminent harm

. See Goodwin , 62 N.E.3d at 385 (noting that,

just before the barroom shooting, all the parties were separately

“socializing” at “the small establishment”); Rogers , 63 N.E.3d at 319

( remarking that the homeowner observed that her co

- host was

, before

attacking a house

- party guest, “ just ‘ being normal, ’ and it was not obvious

to her that he had ‘ a buzz going ’ ” from drinking alcohol ); i d. ( observing

that, before the guest was found dead outsi de her home, the homeowner

saw him “lying motionless on the basement floor with his eyes closed”). If

landowners had reason to know of any imminent harm , th at harm was, as

a matter of law, foreseeable in the duty context. See , e.g.

, id. at 327 ( holding

that it was foreseeable “ that a house

- party guest who is injured on the

premises could suffer from an exacerbation of those injuries ” ). I n the years

since Goodwin and Rogers

, courts have thoughtfully applied this

framework , finding duty only when landowner s had this

contemporaneous knowledge. 1

1 The dissent asserts that the Court “ raises the bar of the question of foreseeability in the

context of duty by requiring contemporaneous evidence of imminent harm.” Post

, at 1. Not

so , and not always . Instead, we recognize that this circumstance

— current knowledge of

imminent harm

— has driven the outcome of Court of Appeals cases applying our precedent

over the past three years . Concurrent knowledge of imminent harm is a sufficient , not

necessary, condi tion of foreseeability in the duty context.Indiana Suprem e Court | Ca se No. 20S

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- 88 | March 3, 2020 Page 7 of 13 When an angry restaurant customer brandished a gun and shot another

patron

, f or example, a duty to protect arose when a late

- night restaurant ’s

staff presently knew of increasing hostilities between two groups.

Hamilton v. Steak ‘n Shake Operations Inc. , 92 N.E.3d 1166 (Ind. Ct. App.

2018), trans. denied

. Before the shooting, a waitress at the restaurant

watched a s a member of one group

, immediately upon entering

, began

taunting a member of the other group about his perceived sexual

orientation. Id. at 1167. The waitress saw these taunts turn to threats

, witnessing the group hounding the targeted man to fight and block i ng

“t he door so no one could leave

. ” Id. She then saw the initiator run outside

and poun d on the windows, yell ing for the target of his ridicule “ to come

outside and fight him. ” Id. She told “ the cook/manager of the

confrontation between the groups

, ” which “ continued to intensify as the

two groups made their way toward the cash register. ” Id. at 1167, 1168.

With both the waitress and cook/manager watching, a fight broke out near

the register , with the instigator drawing a gun and shooting a member of

the other group “point blank in the face.” Id. at 1168. Just as “ the

landowner ’ s knowledge that the house

- party guest had been injured gave

rise to a duty to take precautions to protect the injured guest from

exacerbation of those injuries ” in Rogers

, the restaurant ’s knowledge of the

“escalating thirty

- minute encounter that included verbal threats and

taunts, blocking of the exit, and pounding on windows in an effort to

incite a physical altercation ” gave it “ a duty to take reasonable steps to

provide for patron safety

. ” Id. at 1173.

When a n other patron at a different location of the same restaurant

threw his car into reverse and purposefully backed over another customer

while driving

, the Court of Appeals again found a duty because of the

restaurant’s contemporaneous knowledge of escalating tensions between

groups

. Certa v. Steak ‘n Shake Operations Inc. , 102 N.E.3d 336 (Ind. Ct. App.

2018), trans. denied

. Before th e collision

, a waitress saw a heated encounter

between two groups of intoxicated people spill into the restaurant from

outside

. Id. at 341. The waitress, who serv ed b oth groups

, was quickly told

by a relative in one of the parties that she feared the two sides would

f ight

. Id. The waitress then saw the groups exchang e “ dirty looks and

finger pointing while inside the restaurant

. ” Id. T he waitress told “ herIndiana Suprem e Court | Ca se No. 20S

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- 88 | March 3, 2020 Page 8 of 13 manager that the two groups might be trouble ,” with the customer who

eventually drove over the other later telling her that he “ would retaliate ”

if the dispute spilled back into the parking lot. Id. Because “ what the

landowner knew or had reason to know is a pivotal consideration in

determining foreseeability

, ” the restaurant ’ s knowledge of the escalating

tensions between the particular groups “ gave rise to a duty to take

reasonable steps to provide for ” the injured patron ’ s safety. Id. at 341.

When a drunk en bar patron smashed another customer ’ s jaw in a bar ’ s

front parking lot

, our Court of Appeals again found a duty owed when

the bar had reason to recognize the probability or likelihood of imminent

harm. Buddy & Pals III, Inc. v. Falaschetti , 118 N.E.3d 38 (Ind. Ct. App.

2019), trans. denied

. B efore the offending punch landed

, the bar ’ s bouncers

knew the patron had imbibed “ numerous alcoholic beverages over a

three

- hour period

. ” Id. at 40. After he consumed these drinks, bouncers

saw the man shoved to the ground after challeng ing a nother man he saw

“ talking to his fiancée

. ” Id. A bouncer then put the man “ in a chokehold, ”

from which he “ forcibly tried to pull away ” to confront the man who had

shoved him

. Id. This bouncer , while clutching the man, heard him

describe himself as “ a danger ” to the bouncer and “ everyone in his way

. ”

Id. Bouncers then ejected him through a back door, heaving him to the

pavement

. Id. A fter a bouncer “ punched him in the eye and slammed the

door ” in his face as he tried to re

- enter , t he b ouncers discussed that he

“ might try to re

- enter through the front entrance. ” Id. Again, because

“‘ what the landowner knew or had reason to know ’” plays an important

role in determining foreseeability at this preliminary stage

, the bar “ had a

duty to take precautions to protect its other patrons

. . . from further

violent attacks . . . [by a] loose cannon who

. . . was not taking his ejection

well and was in a fighting mood. ” Id. at 42

– 43 (quoting Certa

, 102 N.E.3d

at 341).

And when a college student sexually assaulted his inebriated

sophomore party guest in his fraternity house

, the Southern District found

a duty owed when the “ fraternity knew or should have known of [ ] prior

allegations ” of sexual assault against the member

. Doe v. Delta Tau Delta

Beta Alpha Chapter

, No. 1:16

- cv

- 1480, 2018 WL 3375016, at *4 (S.D. Ind. July

11, 2018). A year

- and

- a

- half b e fore th is assault, another sophomore ’ sIndiana Suprem e Court | Ca se No. 20S

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- 88 | March 3, 2020 Page 9 of 13 friend told four of this member ’ s fraternity brothers that he had sexually

assaulted her during a similar alcohol

- fueled event while she was

“ blacked out or possibly unconscious

. ” Id. at * 2. These fraternity brothers

were bound, by their fraternity’s code of conduct, to “confront members

of this Fraternity who ” violated the code, which compelled respecting

“the dignity of all persons” and barred the “sexual[ ] abuse [of] any

human being.” Id. at *3. Be cause “ a defendant ’ s actual knowledge is an

appropriate consideration in determining foreseeability and the existence

of any duty owed

, ” the fraternity’s awareness , through its members, of the

accusations of sexual assault against this particular member gave it a duty

to protect the “ invitee to a social fraternity event ” from his assault at the

party

. Id. at *4. Like the restaurants and bar discussed above, t he fraternity

had reason to recognize the probability or likelihood of looming harm

when it hosted an other spirited gathering and left the very member it

knew was accused of sexual assault unhindered to assault another

drunken party guest

.

But without notice of present and specific circumstances that would

cause a reasonable person to recognize the risk of an imminent criminal

act

, our Court of Appeals has consistently held since Goodwin and

Rogers

— until now

— that landowners cannot foresee these sudden attacks.

A bar had no reason to expect thieves in its parking lot crushing a

patron with their getaway car as he dashed after them

. Powell v. Stuber

, 89

N.E.3d 430, 434 (Ind. Ct. App. 2017), trans. denied

. Before this chase,

without the bar ’ s knowledge, the thieves had punched the patron

, taken

his keys and wallet, fled, returned to the sce ne, and tried to steal his car

.

Id. at 431. Without knowing of any impending harm, the bar could n ot

foresee t hat “a criminal attack in [ it s ] parking lot would be extended when

the victim pursue [d] the assailants

. ” Id. at 434. The bar owed the patron no

duty to protect him against t his unforeseeable criminal attack. Id.

A wrestling promotor had no reason to anticipate a n “unknown

assailant

, ” without warning

, attacking a spectator outside a rented

building at a county fairgrounds when she left during a match to retrieve

medication from her car

. Jones v. Wilson

, 81 N.E.3d 688, 692, 694

– 95 (Ind.

Ct. App. 2017), trans. not sought

. W hen the promoter did not know of anyIndiana Suprem e Court | Ca se No. 20S

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- 88 | March 3, 2020 Page 10 of 13 waiting threat

, the “ random criminal attack .

. . inflicted on [the spectator]

was not normally to be expected, and thus not foreseeable” Id. at 69 4

– 9 5.

The promoter owed the spectator no duty to protect her against this

unforeseeable criminal attack. Id. at 695.

A hotel had no reason to predict one of its worker ’ s visitor s

unexpectedly r aping a hotel guest after she covertly propped open her

door and fell asleep on her bed

. Cosgray v. French Lick Resort & Casino

, 102

N.E.3d 895, 901 (Ind. Ct. App. 2018), trans. not sought

. “[E]xamining the

broad type of plaintiff and the broad type of harm, without consideration

of the actual facts

, ” the Court of Appeals found the attack “ in a room left

intentionally unlocked was not normally to be expected, and thus not

foreseeable” when the hotel had no notice of any present danger to its

guest when she secretly left her hotel room d oor ajar

. Id

. at 900

– 01

. The

hotel owed the guest no duty to protect her against this unforeseeable

criminal attack. Id.

A supermarket had no reason to envision a shooter with a concealed

weapon , after spending forty minutes perusing the store, suddenly

opening fire and killing a customer. Rose v. Martin ’ s Super Markets L.L.C.

,

120 N.E.3d 234, 244 (Ind. Ct. App. 2019 ), trans. denied

. Despite the “sad

reality

. . . that a shooting can occur anywhere at any time, . . . it was not

reasonably foreseeable for a grocery store to expect death by gunfire to

befall a customer” when it had no warning of the coming tragedy. Id. at

242, 244. And , unlike in Rogers

— where a homeowner had a duty to help a

guest once she knew about his injury

— it was unforeseeable that the

critically injured customer could suffer further harm after being shot

when the store didn’t know about the “ injury in time to offer her

assistance .” Id. at 244. The store owed the customer no duty to protect her

from exacerba tion of her injuries and no duty to protect her from this

unforeseeable criminal attack. Id.

And Cavanaugh’s had no reason to foresee a bar patron blinding

another during a sudden parking lot fight. U nlike the cases where courts

have found a duty when a landowner knew or should have known about

likely looming harm

, Porterfield does not show that Cavanaugh’s had any

reason to believe the fight would occur . T he skirmish occurred suddenlyIndiana Suprem e Court | Ca se No. 20S

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- 88 | March 3, 2020 Page 11 of 13 and without warning : f or hours before the fracas, Porterfield and h is

friend socialized with bartenders and had no animosity with any other

customers. Indeed, no evidence suggests any tension in the bar before the

fight. Cf. Hamilton , 92 N.E.3d at 1173 ( holding fight foreseeable when

restaurant knew of “ [a]n escalating thirty

- minute encounter ” between

specific groups ) ; Certa , 102 N.E.3d at 34 0

– 4 1 ( holding fight foreseeable

when restaurant knew “patrons had engaged in a verbal altercation and

was aware of the potential for escalation of the conflict”)

. And the bar had

no reason to think that Porterfield , his assailants

, or any of their affiliates

were particularly suited to committing the specific criminal acts the y

perpetrated

. Cf. Buddy & Pals , 118 N.E.3d at 43 (holding fight foreseeable

when bar knew patron “ was not taking his ejection [for fighting] well and

was in a fighting mood”); Delta Tau Delta , 2018 WL 3375016 , at *4 ( holding

sexual assault foreseeable when “fraternity knew or should have known

of the prior allegations ” of sexual assault against particular member)

.

By pointing to police runs made to the bar during the year before the

quarrel, Porterfield improperly substitute s evidence of the bar’s past

rauc ousness for contemporaneous knowledge of imminent harm

. We

repeat , this type of historical evidence, while “appropriate in evaluating

foreseeability in the context of proximate cause,” should play no role

when we evaluate “foreseeability as a component of duty.” Goodwin

, 62

N.E.3d at 393. Considering prior reports of the bar’s unruliness shift s our

common law jurisprudence back into a recently supplanted totality

analysis and risk s fabricating a duty when harm is merely “sufficiently

likely

. ” Id. at 392 (quotation omitted)

. A landowner ’ s present knowledge,

however, more conclusively elevate s the knowledge of risk to “some

probability or likelihood of harm,” id. , allowing courts to continue to find

a duty when “reasonable persons would recognize it and ag ree that it

exists,” Rogers , 63 N.E.3d at 325

.

Although businesses must exercise reasonable care to protect their

patrons from foreseeable harms , they aren’t “the insurers of their invitees’

safety.” Id. at 324 ( quotation omitted)

. I mposing a comprehensive “duty

on proprietors to afford protection to their patrons” from sudden and

unexpected criminal act s like the one committed in this “ particular

scenario

, ” however, do es just that. Goodwin , 62 N.E.3d at 394. Because weIndiana Suprem e Court | Ca se No. 20S

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- 88 | March 3, 2020 Page 12 of 13 will not “abandon the no tion of liability based on negligence and enter the

realm of strict liability,” id.

, Cavanaugh’s owed Porterfield no duty to

protect him against this unforeseeable criminal attack

.



## Conclusion

Landowners must “take reasonable precautions to protect invitees from

foreseeable criminal attacks.” Rogers , 63 N.E.3d at 326. 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 , c onsidering the broad type of plaintiff, the broad

type of harm, and whether the landowne r had reason to expect any

imminent harm

. Because we hold that the criminal attack at issue here was

unforeseeable, the duty of Cavanaugh’s to protect Porterfield did not

extend to this particular scenario. W e reverse and remand with

instructions for the t rial court to enter summary judgment for

Cavanaugh’s

.



### Rush, C .J., and Slaughter

, J., concur.

Goff

, J., dissents with separate opinion in which Justice David joins.

A TTORNEYS FOR APPELLANT

Christopher D. Cody

Georgianna Q. Tutwiler

Hume Smith Geddes Green & Simmons, LLP

Indianapolis, Indiana

Michael E. Tolbert

Tolbert & Tolbert, LLC

Gary, Indiana

ATTORNEYS FOR APPELLEE

A. Leon Sarkisian

Sarkisian Law Offices

Merrillville, IndianaIndiana Suprem e Court | Ca se No. 20S

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- 88 | March 3, 2020 Page 13 of 13 ATTORNEY FOR AMICUS CURIAE

INDIANA TRIAL LAWYERS ASSOCIATION

Gabri el A. Hawkins

Cohen & Malad, LLP

Indianapolis

, Indiana

### Goff, J., dissenting.

I respectfully dissent from the Court’s opinion granting summary

judgment to Cavanaugh’s. While I appreciate the majority’s thorough

review of recent caselaw concerning foreseeability in the context of duty, I

disagree with it in two primary respects. First

, the majority adds new

requirements to our foreseeability inquiry

, elevating the standard to

impose a duty. Second, the majority focuses on the particular facts of this

case, contrary to the standard provided by precedent. Both problems

cause issues on their own, but , more broadly, they combine to imped e the

right to trial. I would resolve this case differently

— focusing on the

general, common

- se nse nature of this foreseeability inquiry

— and find that

Cava naugh’s owed Porterfield a duty.



## I. T he m ajority’s a pproach e levates the s tandard for

f oreseeability as a pa rt of d uty and i mproperly

f ocuses on the f acts of the c ase

, i mpeding the r ight

to a t rial

.

The majority raises the bar of the question of foreseeability in the

context of duty by requiring contemporaneous evidence of imminent

harm. See ante

, at 6, 9

. Foreseeability in this context “is a general

threshold determination that inv olves an evaluation of (1) the broad type

of plaintiff and (2) the broad type of harm.” Rogers v. Martin , 63 N.E. 3d

316, 32 5 (Ind. 2016)

. We ’ve called this determination “a lesser inquiry ”

than that in the context of proximate cause

. Goodwin v. Yeakle’s Sports Bar

and Grill, Inc. , 62 N.E.3d 384, 390 (Ind. 2016) ( citation omitted)

.

C ontemporaneous evidence

— such as escalati ng tensions

— may inform

the lesser, threshold determination of foreseeability, but nothing aboutIndiana Suprem e Court | Ca se No. 20S

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- 88 | March 3, 2020 Page 2 of 5

t h is determination requires that evidence

. 1 In other words, the presence of

contemporaneous evidence can help show that a criminal act was

foreseeable, but the absence of that evidence should not be the

determining factor to conclude that a criminal act was unforeseeable.

Although the majority says it agrees with this point, ante

, at 6 n.1, it backs

away from the point when it relies on the alleged absence of

contemporaneous evidence to find this fistfight unforeseeable, id. at 1 0

– 11

. More important than the problem with adding the contemporaneous ness

requirement , though, is the fact that requ iring an imminent harm conflicts

with the basic inquiry we undertake at this step. Our task is to determine

whether a harm is foreseeabl e

. Rogers , 63 N.E.3d at 326; Goodwin , 62

N.E.3d at 388. But t he majority’s new requirement that a harm be

imminent involves a tougher standard because foreseeable harms are not

always imminent. For example, it’s foreseeable that land in a floodplain

will flood, but such a flood may not be imminent during a drought.

Ultimately, the majority’s new requirement s of contemporaneous

evidence and imminent harm elevate the bar for foreseeability in the

context of duty, making a lesser inquiry into something greater. And

w hile I agree with the majority that businesses should not be come

1 In conducting this foreseeability analysis, we consider the defendant’s knowledge, see Rogers

, 63 N.E.3d at 327, so it makes sense to consider (but not require) contemporaneous evidence of

observed escalation, see , e.g.

, Certa v. Steak ‘n Shake Operations, Inc. , 102 N.E.3d 336, 341 (Ind.

Ct. App. 2018)

, trans. denied

. It makes less sense to exclude from cons ideration

, in defining the

general categories of plainti ff and harm , prior similar incident s, which show the defendant’s

knowledge in the same way that contemporaneous evidence does. But t he majority and at

least one panel of our Court of Appeals interpret Goodwin and Rogers as prohibiting

consideration of pri or similar incidents

. Ante

, at 11; Cosgray v. French Lick Resort & Casino , 102

N.E.3d 895, 901 (Ind. Ct. App. 2018)

, trans. not sought

. However, I’m not as sure that Goodwin

and Rogers meant to throw the baby out with the bathwater. The rejected totality

- of

- the

circumstances test “considers ‘all of the circumstances surrounding an event

. ’” Rogers , 63

N.E.3d at 325 (citation omitted ). If by rejecting this test we rejected everything i t included

, we’d have nothing left to consider. Th us, something must remain , which we’ve said is the

defendant’s knowledge. See i d. at 327. Chief Judge Magnus

- Stinson, in an opinion cited by

the majority , found that a n alleged prior similar incident could have show n the defendant’s

knowledge, and I agree. Doe v. Delta Tau Delta Beta Alpha Chapter , No. 1:16

- cv

- 1480

- JMS

- DML

, 2018 WL 3375016, at * 4 (S.D. Ind. July 11, 2018). This conclusi on aligns with common sense: if

the same thing happens thirty day s in a row, no one will be surprised when it happens on the

thirty

- first day. See Rogers , 63 N.E.3d at 325 (citation omitted) ( “[ C] ourts will find a duty

where, in general, reasonable persons would recognize it and agree that it exists.” ).Indiana Suprem e Court | Ca se No. 20S

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insure rs of their invitees’ sa fety

, its new requirement s take us too far

toward the harm at the other end of the spectrum: providing blanket

immunity to businesses f or foreseeable harms that befall their invitees.

See Hamilton v. Steak ‘n Shake Op erations , Inc.

, 92 N.E.3d 1166, 1172 ( Ind. Ct.

App. 2018) ( recognizing the goal of avoiding both ends of the spectrum )

,

trans . denied

.

T he majority also relies on the particular facts of this case rather than

conducting the more general analysis our precedent requires. When we

look at the broad type s of plaintiff and harm as part of the foreseeability

inquiry, we do so “without addressing the specific facts of t he

occurrence.” Rogers , 63 N.E.3d at 325. See also Goodwin , 62 N.E.3d at 390

–

91. Contrary to this instruction, the majority focuses on the facts

underlying this case. The majority emphasizes the lack of tension in the

bar, noting that “for hours before the fracas, Porterfield and his friend

socialized with bartenders and had no animosity with any other

customers.” Ante

, at 1 1

. And it concludes that nothing indicated that the

people involved in the fight “were particularly suited to committing the

spec ific criminal acts they perpetrated.” Id. In the end, the majority’s

focus on the specific facts of this case does what the majority sets out to

avoid : it “shifts our common law jurisprudence back into a recently

supplanted totality analysis.” Id

. 2

In addition to the specific issues already discussed, the majority

opinion more broadly impedes the right to a trial. See Ind. Const. a rt. 1, §

2 That being sa id, if we do consider the facts , they weigh against granting Cavanaugh’s

summary judgment. As the majority notes, at this stage we must “constru[e] all facts and

reasonable inferences drawn from those facts in favor of Porterfield as the nonmovant.” Ante

,

at 4 (citing Ryan v. TCI Architects/Engineers/Contractors, Inc.

, 72 N.E.3d 908, 912

– 13 (Ind. 2017)).

Taken in that light, the designated evidence shows that, over the course of twenty or thirty

minutes when Cavanaugh’s had security personnel at their exit doors, a conversation between

Andrea Acevedo and Porterfield’s friend, Steven McPherson

, escalated fi rst into a shouting

match between McPherson and Porterfield and a group of men (with the men aggressively

approaching McPherson and encircling him) and continued to escalate until the fight broke

out. Even under the heightened standard applied by the majo rity, “reasonable persons would

recognize [a duty on Cavanaugh’s part] and agree that it exits.” Rogers , 63 N.E.3d at 325

(citation omitted). Thus, summary judgment is inappropriate.Indiana Suprem e Court | Ca se No. 20S

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20 (“In all civil cases, the right of trial by jury shall remain inviolate.”). By

raising the bar for finding a duty, the majority’s opinion will lead to

summary judgments in close cases, impeding Hoosiers’ right to a trial.

And by focusing on the facts in determini ng whether a duty exists, the

majority takes from the factfinder at trial the ability to consider and weigh

facts. In Hughley v. State , we recognized the importance of trial when we

said, “Indiana consciously errs on the side of letting marginal cases

pro ceed to trial on the merits, rather than risk short

- circuiting meritorious

claims.” 15 N.E.3d 1000, 1004 (Ind. 2014). Today, however, the majority

fails to do the same.



## II. Based on our general, common

- sense foreseeability

inquiry, I would find a fight like th is one to be

foreseeable

.

I would conduct a different analysis than the majority and reach the

opposite result. We’ve said that “ a landowner has a duty to take

reasonable precautions to protect invitees from foreseeable criminal

attacks, ” and the extension of this duty to a situation like th at presented in

this case turns on the foreseeability of the criminal act. Rogers , 63 N.E.3d

at 324, 326. “ [T]his foreseeability analysis should focus on the general

class of persons of which the plaintiff was a member and whether the

harm suffered was of a kind normally to be expected

— without addressing

the specific facts of the occurrence.” Id. at 325 (citing Good win , 62 N.E.3d

at 388

– 89). Foreseeability in this context is meant to be a common

- sense

inquiry. See id. (citations omitted) (“[C]ourts will find a duty where, in

general, reasonable persons would recognize it and agree that it exists.”);

Goodwin , 62 N.E .3d at 392 (citation omitted) (stating that this foreseeability

analysis asks “whether there is some probability or likelihood of harm

that is serious enough to induce a reasonable person to take precautions to

avoid it”).

With these instructions in mind , I would find 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,”Indiana Suprem e Court | Ca se No. 20S

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Goodwin , 62 N.E.3d at 394, a closing

- time fistfight is. We’ve already

recognized the common

- sense notion that “bars can often set the stage for

rowdy behavior.” Id. at 393. 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 unremarkab le nature of a fistfight involving bar patrons at

the bar’s early morning closing time, and they would take precautions to

avoid it. See Rogers

, 63 N.E.3d at 325 ; Goodwin , 62 N.E.3d at 392

. Thus, I

would hold that Cavanaugh’s owed a duty to protect Porte rfield 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 th e

same classes of plaintiff and harm identified here ; i t 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 c ould

be held liable

. See Rogers

, 63 N.E.3d at 321; Goodwin , 62 N.E.3d at 386.

Proving these elements would not be an easy task

. To the contrary, w hen

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 Cavan a ugh’s was not responsible for

Porterfield’s injuries

. Simply put, allowing this case to proceed falls well

short of imposing liability on Ca vanaugh’s or any other bar in the state.

For these reasons, I respectfully dissent.



### David, J., joins.