Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 1 of 15

IN THE

Court of Appeals of Indiana

Vance Tolbert, individually and on behalf of Lucas Tolbert,

Appellants-Plaintiffs

v.

Redbones, Inc.,

Appellee-Defendant

June 19, 2024

Court of Appeals Case No.

23A-CT-1857

Appeal from the Daviess Circuit Court

The Honorable Gregory Smith, Judge

Trial Court Cause No.

14C01-2105-CT-307

Opinion by Judge Riley

Judges Brown and Foley concur.
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 2 of 15

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellants-Plaintiffs, Vance Tolbert (Vance), individually and on behalf of 

Lucas Tolbert (Tolbert) (collectively, the Tolberts), appeal the trial court’s 

partial summary judgment in favor of Appellee-Defendant, Redbones, Inc. 

(Redbones).

[2] We affirm.

ISSUE

[3] The Tolberts present this court with two issues, which we consolidate and 

restate as follows: Whether genuine issues of material fact exist as to whether 

Redbones owed Tolbert a duty of care.

FACTS AND PROCEDURAL HISTORY

[4] Redbones is an Indiana corporation operating a bar and grill in Montgomery, 

Daviess County, Indiana. This case stems from a fight which occurred on 

Redbones’ business premises during the early morning of September 27, 2020, 

between Tolbert and Tyler Ross (Ross). Prior to coming to Redbones, Tolbert 

had attended a wedding and a reception where alcohol had been served. After 

the reception, Tolbert was driven to Redbones by a friend. Tolbert was visibly 

and obviously intoxicated when he arrived at Redbones. Angela Graber 

(Graber) was the only Redbones employee working that night at the bar. 

Graber is a licensed bartender who had worked for Redbones for over twenty 
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 3 of 15

years. Graber informed Tolbert that he would not be served any alcohol and 

that he should get a ride home. Tolbert assured Graber that he was fine, but he 

was seen with his head on the bar by other patrons. A number of people from 

the wedding party arrived, and the socializing continued. 

[5] Ross had been at Redbones earlier in the evening, left to attend a party, but 

returned to Redbones. Ross and Tolbert were at Redbones at the same time for 

thirty minutes to an hour without any interaction or hostility. Neither was 

acting aggressively toward other bar patrons. At the time of the fight, there 

were around eight patrons left in the bar, as most of the wedding party had left 

or were waiting outside for a party bus to pick them up. Music was playing in 

the bar, and Ross and others were watching a professional basketball game on 

the television. Ross and Tolbert were seated apart from each other at 

Redbones’ horseshoe shaped bar, with other patrons and empty chairs between 

them. Ross made a comment about an announcement that appeared on the 

television for a social justice movement, which prompted Tolbert to lift his head 

from the bar and pronounce his support for the movement. The two men had a 

back-and-forth about this topic for approximately a minute and a half and then 

continued talking with raised voices for approximately another minute and a 

half, after which Tolbert got up from his barstool and approached Ross. The 

men exchanged up to five shoves, although the record is unclear who shoved 

first. Ross then punched Tolbert once. Tolbert was subsequently taken to the 

hospital and treated for grave injuries to his head. 
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[6] On May 12, 2021, the Tolberts filed their Complaint sounding in an intentional 

tort claim as to Ross and premises liability claims as to Redbones.1

 The 

Tolberts alleged that Redbones had a duty to use ordinary care and diligence to 

keep and maintain its premises secure and reasonably safe for its patrons and, 

more specifically, that Redbones had a duty to exercise reasonable care to 

protect its patrons from the danger of reasonably foreseeable injury occurring 

from reasonably foreseeable acts of violence by its other patrons. On February 

1, 2023, the Tolberts amended their Complaint to add a claim under the 

Indiana Dram Shop Act. That same day, the trial court granted the Tolberts’ 

motion to dismiss Ross as a defendant, with the caveat that Redbones would be 

allowed to name him as a non-party defendant. 

[7] On February 24, 2023, the Tolberts filed their motion for partial summary 

judgment, along with their memorandum and designation of evidence in 

support, on the issue of whether Redbones owed Tolbert a duty of care to 

protect him from Ross’ punch. In support of their motion, the Tolberts 

designated evidence that Graber knew that Tolbert was intoxicated, that she 

knew that customers could become aggressive when they consume alcohol, and 

that she knew that you have to “keep an eye on” severely intoxicated patrons. 

(Appellants’ App. Vol. II, p. 176). The Tolberts also designated the deposition 

[1] 1 On September 29, 2020, the State filed an Information, charging Ross with battery resulting in serious bodily 

injury. While the instant suit was ongoing, Ross was tried and acquitted. 
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testimony of Morganne Doyle (Doyle), who was seated next to Ross, that she 

had heard Ross and Tolbert yelling and had turned to her husband to tell him 

that she thought there was going to be a fight. The Tolberts also designated the 

interrogatory response of Redbones’ owner Cindy Wilcher (Wilcher) that 

[f]rom my discussions with [Graber], the incident occurred when 

Tolbert and Ross exchanged words while both were at the bar. 

Ross was seated at the bar. Tolbert walked over to where Ross 

was seated[,] and they continued to exchange words. Ross got 

up[,] and after shoves were exchanged, Ross hit Tolbert with one 

punch and fell Tolbert [sic].

(Appellants’ App. Vol. II, p. 131) (first names removed). In addition, Wilcher 

provided the following deposition testimony:

Answer: They were exchanging words seated apart, and they 

continued to exchange words when [Tolbert] went over to where 

[Ross] was. 

Question: But if [] Graber is hearing this, it’s obviously loud 

enough for her to hear it, right? 

Answer: I’m assuming so, yes. She would be about three feet 

away from them.

(Appellants’ App. Vol. II, p. 84). 

[8] After being granted several extensions of time, on June 14, 2023, Redbones 

filed its cross-motion for partial summary judgment and response to the 

Tolberts’ motion for partial summary judgment, together with a memorandum 

and designation of evidence in support, arguing, as to the premises liability 

claims only, that it owed no duty to Tolbert to protect him from the 
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unforeseeable act of Ross’ punch. In support of its motion, Redbones 

designated the following evidence. Graber was behind the bar but had not been 

watching Tolbert the whole time he was in the bar. Graber did not “know what 

led up to [Ross’] punch.” (Appellants’ App. Vol. III, p. 66). Graber saw 

Tolbert get up from his barstool but thought that he was leaving to catch a ride 

home on the party bus with the rest of the wedding party. Graber turned away 

to do something and then turned back around in time to see Ross punching 

Tolbert. On July 17, 2023, the Tolberts filed their response to Redbones’ crossmotion. 

[9] On August 2, 2023, the trial court entered its Order, denying the Tolberts’ 

motion for partial summary judgment and granting Redbones’ motion for 

partial summary judgment. The trial court did not enter any specific findings of 

fact or conclusions thereon in support of its Order. The trial court entered final 

judgment on the Tolberts’ premises liability claims pursuant to Indiana Trial 

Rule 54(B). 

[10] The Tolberts now appeal. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

[11] An appellate court reviews summary judgment using the same standard as the 

trial court: summary judgment is appropriate only when the designated 

evidence “shows that there is no genuine issue as to any material fact and that 

the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule 
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56(C); Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The moving party 

bears the initial burden of establishing that it is entitled to summary judgment. 

Pfenning v. Lineman, 947 N.E.2d 392, 396-97 (Ind. 2011). Once the moving 

party meets this burden, the non-moving party must set forth specific facts 

demonstrating a genuine issue for trial. Id. at 397. The reviewing court is 

required to construe the evidence in favor of the non-movant and to resolve all 

doubts against the moving party. Id. Here, the parties submitted cross-motions 

for summary judgment. Cross-motions for summary judgment do not affect 

our standard of review, and we simply construe the facts most favorably to the 

non-moving party in each instance. Alexander v. Linkmeyer Dev. II, LLC, 119 

N.E.3d 603, 612 (Ind. Ct. App. 2019). Whether one party owes another a duty 

for purposes of establishing a negligence claim is generally a question of law to 

be determined by the trial court. Reece v. Tyson Fresh Meats, Inc., 173 N.E.3d 

1031, 1033 (Ind. 2021). We review this legal question de novo, without 

deference to the trial court’s decision. Ryan v. TCI 

Architects/Engineers/Contractors, Inc., 72 N.E.3d 908, 912-13 (Ind. 2017). 

II. Existence of a Duty of Care

[12] In order for a plaintiff to recover damages based on negligence, the plaintiff 

must establish: “(1) a duty owed by the defendant to the plaintiff; (2) breach of 

that duty; and (3) injury to the plaintiff resulting from the defendant’s breach.” 

Wiley v. ESG Sec. Inc., 187 N.E.3d 267, 272 (Ind. Ct. App. 2022), trans. denied. 

In the absence of any duty, no negligence or liability can be based upon the 

alleged breach. Id. The parties do not dispute that Tolbert was a business 
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invitee of Redbones. Indiana courts have repeatedly stated that a landowner 

“must exercise reasonable care for the invitee’s protection while the invitee is 

on the premises” and that this duty includes taking “reasonable precautions to 

protect invitees from foreseeable criminal attacks.” Rogers v. Martin, 63 N.E.3d 

316, 320, 326 (Ind. 2016). Foreseeability is the “critical inquiry” in determining 

whether this duty extends to the facts of a particular scenario. Id. at 323. 

[13] In addressing the issue of whether a particular act was foreseeable, triggering a 

duty of a landowner to an invitee, the court undertakes a “general analysis of 

the broad type of plaintiff and harm involved” without regard to the facts of the 

actual occurrence and assesses “whether there is some probability or likelihood 

of harm that is serious enough to induce a reasonable person to take 

precautions to avoid it.” Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 

384, 391-92 (Ind. 2016). The court considers the general class of persons to 

which the plaintiff belonged and “whether the harm suffered was of a kind 

normally expected.” Rogers, 63 N.E.3d at 325. Our supreme court has clarified 

that, in evaluating the broad classes of plaintiff and type of harm for purposes of 

a Goodwin/Rogers analysis, “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.” Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, 140 N.E.3d 

837, 840 (Ind. 2020); see also Singh v. Singh, 155 N.E.3d 1197, 1208 (Ind. Ct. 

App. 2020) (acknowledging that in applying the Goodwin/Rogers framework, 

“an examination of particular facts is necessary to fully resolve the question of 
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duty at this stage and to properly apply Cavanaugh’s required ‘foreseeability as a 

component of duty’ analysis”). “If landowners had reason to know of any 

imminent harm, that harm was, as a matter of law foreseeable in the duty 

context.” Cavanaugh’s, 140 N.E.3d at 841. Courts applying the Goodwin/Rogers

framework have found that a duty exists “only when landowners had this 

contemporaneous knowledge.” Id. Requiring that criminal acts are foreseeable 

reflects the fact that a landowner’s duty to protect an invitee is not without 

limit, as some harms are so unforeseeable that a landowner does not have a 

duty to protect invitees against them. Rogers, 63 N.E.3d at 324. Our supreme 

court has recognized that “courts must have a gatekeeping function available to 

them so that landowners do not become ‘the insurers of their invitees’ safety.’” 

Id. (quoting Delta Tau Delta v. Johnson, 712 N.E.2d 968, 971 (Ind. 1999)). 

[14] In Cavanaugh’s, Porterfield and a friend were out on the town and stopped at 

Cavanaugh’s, a bar which was crowded but calm when they arrived. Id. at 838. 

The two stayed for several hours, speaking with the bartenders and having no 

disputes with anyone in the bar before closing time at 3:00 a.m. Id. As 

Porterfield and his friend exited the bar into the parking lot along with the other 

customers, a fight broke out. Id. Porterfield was injured in the fight and was 

rendered permanently blind. Id. Porterfield sued the bar for negligence, and 

the bar moved for summary judgment, arguing that it was not responsible for 

the unforeseeable criminal acts of third parties. Id. at 839. The trial court 

denied the bar summary judgment, and, on appeal, this court upheld that 

ruling. Id. On transfer, after undertaking an examination of cases issued since 
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the Goodwin/Rogers decisions, the Cavanaugh’s court reversed, holding that 

“Cavanaugh’s had no reason to foresee a bar patron blinding another during a 

sudden parking lot fight” and that Porterfield had not shown that the bar “knew 

or should have known about likely looming harm[.]” Id. at 843. The court 

observed that the fight had occurred suddenly and without warning, where 

Porterfield and his friend had been in the bar without incident for hours and 

had shown no animosity towards any other customers. Id. The court 

contrasted these facts with those of Hamilton v. Steak ‘n Shake Operations, Inc., 92 

N.E.3d 1166, 1173 (Ind. Ct. App. 2018), trans. denied, wherein this court found 

that a landowner had a duty because a fight preceded by an escalating thirtyminute encounter between two specific factions that was witnessed by 

employees was foreseeable, and with Certa v. Steak ‘n Shake Operations, Inc., 102 

N.E.3d 336, 340-41 (Ind. Ct. App. 2018), trans. denied, wherein we held that a 

fight was foreseeable when the landowner knew that patrons had a verbal

altercation and was aware of the potential for the escalation of the conflict. Id. 

at 843-44. The Cavanaugh’s court also found that the bar had no reason to think 

that their customers that evening “were particularly suited to committing the 

specific criminal acts they perpetrated[,]” contrasting Porterfield’s case with that 

of Buddy & Pals III, Inc. v. Falaschetti, 118 N.E.3d 38, 42-43 (Ind. Ct. App. 2019), 

trans. denied, wherein this court found a fight was foreseeable where the 
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landowner/bar knew that a patron who had been removed from the bar was 

unaccepting of that fact and was in a fighting mood. Id. at 844.

2

[15] We likewise conclude that Redbones did not owe Tolbert a duty to protect him 

from Ross’ punch which was unforeseeable. The general class of plaintiffs to 

which Tolbert belonged is a bar patron, and the general harm he suffered was 

serious head injuries. Although a bar can be the site of rowdy behavior, we do 

not believe that bar owners routinely contemplate that their patrons will punch 

each other, causing serious head injuries. While it may happen at times, it is 

not the norm. That being established, we conclude that the Tolberts did not 

designate evidence that Redbones “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” sufficient to find that 

a duty existed. Id. at 840. While Graber was behind the bar of this relatively 

small establishment at the time of the fight, there was no designated evidence 

that Graber was listening to the yelling between Tolbert and Ross or that she 

saw the shoving that preceded Ross’ punch. One witness characterized the bar 

as “loud”, a fact that the Tolberts do not refute with any designated evidence. 

(Appellants’ App. Vol. II, p.98). As in Cavanaugh’s, prior to the fight, the 

2

On January 9, 2024, after the Tolberts filed their appellants’ brief but before Redbones filed its appellee’s 

brief and the Tolberts filed their reply, our supreme court issued Pennington v. Memorial Hospital of South Bend, 

Inc., 223 N.E.3d 1086, 1097 (Ind. 2024), in which it discussed the test for duty applicable to cases such as this 

one stemming from activities on a landowner’s premises unrelated to the premises’ condition. The 

Pennington court restated the Goodwin/Rogers test wherein a court evaluates the broad types of plaintiff and 

harm. Id. The court emphasized that this was to be done without addressing the specific facts of the 

occurrence. Id. The Pennington court did not address Cavanaugh’s. Id. 
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combatants here were together for a significant period of time inside the 

defendant’s establishment without incident, as Ross and Tolbert were in 

Redbones for thirty minutes to an hour without any tensions between 

themselves or other patrons. Id. at 843. No threats were exchanged between 

the two men prior to the punch. While estimates varied among the various 

other patrons who were there that night, the estimate most favorable to the 

Tolberts was that the entire incident from Ross’ first comment to the punch 

took less than five minutes, a significantly shorter period than the thirty-minute 

escalating conflict which contributed to our conclusion in Hamilton that the 

fight in that case was foreseeable. Hamilton, 92 N.E.3d at 1173-74. In addition, 

this was not a scenario wherein Graber had any notice that either Ross or 

Tolbert was particularly “suited” for fighting or were in a fighting mood that 

evening. See Cavanaugh’s, 140 N.E.3d at 844 (distinguishing Buddy & Pals III, 

Inc.). 

[16] The Tolberts insist that we must infer that Redbones knew or had reason to 

know of the imminent threat of a fight from evidence that Graber knew Tolbert 

was intoxicated, knew that customers can become aggressive when consuming 

alcohol, and knew she should keep an eye on extremely intoxicated patrons. 

However, none of this evidence supports a finding of knowledge of “present 

and specific” circumstances that would cause a reasonable person to recognize 

the likelihood of “imminent harm”. Id. at 840. In addition, the Tolberts do not 

support with any legal authority their contention that the fact that Doyle might 

have been aware of facts that led her to conclude that there would be a fight is 
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sufficient for us to conclude that Graber knew or should have known that a fight 

was imminent, and we are aware of none. Neither can we credit the Tolberts’ 

argument that Wilcher’s discovery responses support the existence of the 

requisite knowledge here. Her assumption that Graber must have heard the 

verbal interaction between Ross and Tolbert is just that–an assumption. There 

is no designated evidence that Graber told Wilcher that she had heard the 

verbal exchanges, that Graber was actually three feet away from the men when 

the verbal back-and-forth occurred, or that the physical layout of the bar 

precluded Graber from being more than three feet away from all the customers 

seated at the bar. We also disagree with the Tolberts that we must construe the 

description of the events that Wilcher included in her interrogatory responses as 

establishing that Graber had personally witnessed all of those events, simply 

because Graber had recited the events to Wilcher. Our standard of review 

requires us to construe all evidence in favor of the Tolberts. See Pfenning, 947 

N.E.2d at 397. However, construing evidence in favor of the non-moving party 

does not mean creating facts where none exist. Wilcher did not testify that 

Graber told her that she witnessed all of the events preceding Ross’ punch. 

Absent any evidence that Graber actually witnessed the events she described to 

Wilcher, we cannot construe the facts in the manner the Tolberts propose. 

[17] The Tolberts also argue that the law is unclear “whether a proprietor’s 

contention that it was only aware of the circumstances giving rise to a 

likelihood of imminent harm for a short duration speaks to the element of duty 

and constitutes a question of law for the court or speaks to the element of 
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breach and constitutes a question of fact for the jury[.]” (Appellants’ Br. p. 23). 

The Tolberts contend that the duration of a landowner’s knowledge of 

imminent danger is relevant only to the issue of breach. However, our review is 

de novo, and we have concluded that no evidence was designated supporting 

the requisite knowledge by Redbones for even a short duration. Therefore, we 

do not address this argument other than to observe that in Hamilton we relied in 

part upon the fact that the escalating tensions between two groups in the 

restaurant were observed by the defendant’s employees for thirty minutes in 

concluding that the defendant owed a duty of care to the plaintiff. Hamilton, 92 

N.E.3d at 1173. Accordingly, we do not disturb the trial court’s summary 

judgments. 

CONCLUSION

[18] Based on the foregoing, we hold that no genuine issues of material fact exist as 

to whether Redbones owed Tolbert a duty of care to support its premises 

liability claims. 

[19] Affirmed. 

Brown, J. and Foley, J. concur

ATTORNEY FOR APPELLANTS

Gabriel A. Hawkins

Cohen & Malad, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 15 of 15

Crystal G. Rowe

R. Jeffrey Lowe

Kightlinger & Gray, LLP

New Albany, Indiana