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

Appellee (Plaintiff below)

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

Appeal from the Lake County Superior Court 

No. 45D04-0710-CT-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 concur.

Justice Goff dissents with separate opinion in which Justice David joins.
Indiana Supreme Court | Case No. 20S-CT-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 the 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,” id. 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 we continue to decline to impose a comprehensive 

“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

One 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. At

the 3 a.m. closing time, the men, along with the rest of the bar’s clientele,
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left the bar for the parking lot. Halfway across the lot, they fought with

some other departing customers. The details of the 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 owed 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 court, “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 the Court of Appeals

affirmed, 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) (Supreme 
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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 not affect the 

threshold legal question of whether Cavanaugh’s owed Porterfield any 

duty. Because the 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 to “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, id. at 323–24. But foreseeability 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

“involves a lesser inquiry,” requiring a court, as a threshold legal matter,

to evaluate “the broad type of plaintiff and harm involved, without regard
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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 focusing “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.3d at 392 (quotation omitted).

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

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

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

Just over three years ago, this Court adopted and applied 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—was 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 the 
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house-party guest. But when the homeowner discovered that 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, 320.

When evaluating the broad class of plaintiff and broad type of harm in 

these cases, we acknowledged a key factor is whether the landowners

knew or had reason to know about any present and specific circumstances

that would cause a reasonable person to recognize 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); id. (observing

that, before the guest was found dead outside 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, that 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”). In the years

since Goodwin and Rogers, courts have thoughtfully applied this

framework, finding duty only when landowners 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, condition of foreseeability in the duty context.
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When an angry restaurant customer brandished a gun and shot another

patron, for 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 as 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 blocking

“the door so no one could leave.” Id. She then saw the initiator run outside

and pound on the windows, yelling 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 another 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 the 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 served both groups, was quickly told

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

fight. Id. The waitress then saw the groups exchange “dirty looks and

finger pointing while inside the restaurant.” Id. The waitress told “her
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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 drunken 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. Before 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 challenging another 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. After a bouncer “punched him in the eye and slammed the

door” in his face as he tried to re-enter, the bouncers 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 before this assault, another sophomore’s
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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. Because “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, the fraternity

had reason to recognize the probability or likelihood of looming harm

when it hosted another 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 scene, and tried to steal his car. 

Id. at 431. Without knowing of any impending harm, the bar could not 

foresee that “a criminal attack in [its] 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 this unforeseeable criminal attack. Id.

A wrestling promotor had no reason to anticipate an “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. When the promoter did not know of any 
Indiana Supreme Court | Case No. 20S-CT-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 694–95.

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 visitors

unexpectedly raping 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 door 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 exacerbation 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. Unlike 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. The skirmish occurred suddenly
Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020 Page 11 of 13

and without warning: for hours before the fracas, Porterfield and his

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 340–41 (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 they

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 substitutes evidence of the bar’s past 

raucousness 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 shifts our 

common law jurisprudence back into a recently supplanted totality 

analysis and risks fabricating a duty when harm is merely “sufficiently 

likely.” Id. at 392 (quotation omitted). A landowner’s present knowledge, 

however, more conclusively elevates 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 agree 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). Imposing a comprehensive “duty 

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

unexpected criminal acts like the one committed in this “particular 

scenario,” however, does just that. Goodwin, 62 N.E.3d at 394. Because we 
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will not “abandon the notion 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, considering the broad type of plaintiff, the broad 

type of harm, and whether the landowner 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. We reverse and remand with 

instructions for the trial 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, Indiana
Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020 Page 13 of 13

ATTORNEY FOR AMICUS CURIAE

INDIANA TRIAL LAWYERS ASSOCIATION

Gabriel 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 impede the 

right to trial. I would resolve this case differently—focusing on the 

general, common-sense nature of this foreseeability inquiry—and find that 

Cavanaugh’s owed Porterfield a duty.

I. The majority’s approach elevates the standard for 

foreseeability as a part of duty and improperly 

focuses on the facts of the case, impeding the right 

to a trial.

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 involves an evaluation of (1) the broad type 

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

316, 325 (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). 

Contemporaneous evidence—such as escalating tensions—may inform

the lesser, threshold determination of foreseeability, but nothing about 
Indiana Supreme Court | Case No. 20S-CT-88 | March 3, 2020 Page 2 of 5

this 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 10–11. 

More important than the problem with adding the contemporaneousness

requirement, though, is the fact that requiring an imminent harm conflicts 

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

whether a harm is foreseeable. Rogers, 63 N.E.3d at 326; Goodwin, 62 

N.E.3d at 388. But the 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 requirements of contemporaneous 

evidence and imminent harm elevate the bar for foreseeability in the 

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

while I agree with the majority that businesses should not become

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 consideration, 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. But the majority and at 

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

consideration of prior 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-thecircumstances 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 it included,

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

defendant’s knowledge. See id. at 327. Chief Judge Magnus-Stinson, in an opinion cited by 

the majority, found that an alleged prior similar incident could have shown 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 conclusion aligns with common sense: if 

the same thing happens thirty days 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 Supreme Court | Case No. 20S-CT-88 | March 3, 2020 Page 3 of 5

insurers of their invitees’ safety, its new requirements take us too far 

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

immunity to businesses for foreseeable harms that befall their invitees. 

See Hamilton v. Steak ‘n Shake Operations, Inc., 92 N.E.3d 1166, 1172 (Ind. Ct. 

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

trans. denied. 

The 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 types of plaintiff and harm as part of the foreseeability 

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

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 11. And it concludes that nothing indicated that the 

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

specific 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. art. 1, § 

2 That being said, 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 first 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 majority, “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 Supreme Court | Case No. 20S-CT-88 | March 3, 2020 Page 4 of 5

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 determining 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 

proceed 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 this 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 that 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 Goodwin, 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 Supreme Court | Case No. 20S-CT-88 | March 3, 2020 Page 5 of 5

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 unremarkable 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 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. 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, 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.

For these reasons, I respectfully dissent.

David, J., joins.