Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018 Page 1 of 17

ATTORNEYS FOR APPELLANT

Richard A. Cook

Bryan C. Tisch

Yosha Cook & Tisch

Indianapolis, Indiana

ATTORNEY FOR AMICUS CURIAE

INDIANA TRIAL LAWYERS

ASSOCIATION

Gabriel A. Hawkins

Cohen & Malad, LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Lisa M. Dillman

Thomas C. Hays

Barath S. Raman

Lewis Wagner, LLP

Indianapolis, Indiana

ATTORNEYS FOR AMICUS CURIAE

DEFENSE TRIAL COUNSEL OF 

INDIANA

Lucy R. Dollens

Jacob V. Bradley

Quarles & Brady LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Amber Hamilton,

Appellant-Plaintiff,

v.

Steak ’n Shake Operations Inc.,

Appellee-Defendant

March 7, 2018

Court of Appeals Case No.

49A02-1704-CT-776

Appeal from the Marion Superior 

Court

The Honorable Heather A. Welch, 

Judge 

Trial Court Cause No.

49D01-1308-CT-30340

Altice, Judge.
Court of Appeals of Indiana | Opinion 49A02-1704-CT-776 | March 7, 2018 Page 2 of 17

Case Summary

[1] Amber Hamilton was shot in the face during an altercation that transpired after 

a group of individuals entered the Steak ’n Shake restaurant where she was 

eating and verbally threatened and taunted her and her brother over a period of 

approximately thirty minutes. Steak ’n Shake employees witnessed the 

escalation of threats and verbal abuse, but did not take action until it seemed 

that a physical altercation was imminent, at which point the acting manager 

told the group they needed to leave the premises. Moments later, the 

altercation turned physical inside the Steak ’n Shake, at which time, the Steak 

’n Shake employees summoned help. Hamilton was shot less than a minute 

later.

[2] Hamilton filed a complaint alleging that Steak ’n Shake was negligent for failing 

to protect her from the criminal act of another. Steak ’n Shake filed a Motion 

for Summary Judgment, which was initially denied by the trial court. A little 

more than a year later, Steak ’n Shake filed a motion asking the trial court to 

reconsider its denial of summary judgment in light of the recent pronouncement 

by the Indiana Supreme Court with regard to the determination of duty. After 

considering the Supreme Court’s decisions in Goodwin v. Yeakle’s Sports Bar & 

Grill, Inc., 62 N.E.3d 384 (Ind. 2016) and Rogers v. Martin, 63 N.E.3d 316 (Ind. 

2016), the trial court granted summary judgment in favor of Steak ’n Shake,

concluding that Steak ’n Shake did not owe Hamilton a duty to protect her from 

another’s unforeseeable criminal act. Hamilton appeals, arguing that the trial 

court’s determination that Steak ’n Shake did not owe her a duty is erroneous.
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[3] We reverse and remand.

Facts & Procedural History1

[4] The facts most favorable to Hamilton, the non-movant, follow. On or about 

December 21, 2012, Hamilton, her brother Dustyn, and two friends were 

patrons at an Indianapolis Steak ’n Shake. A server and a cook, who was also 

acting as the manager, were the only other persons present. Shortly after 

Hamilton’s group ordered their food, another group of individuals, including 

Ricky Jackson, entered the Steak ’n Shake and sat about ten to twenty feet 

away. Jackson began to threaten and verbally abuse Hamilton and Dustyn on 

account of Dustyn’s sexual orientation. Jackson also attempted to goad Dustyn 

into fighting him and even blocked the door so no one could leave. At one 

point, Jackson went outside and continued taunting Hamilton and Dustyn by 

repeatedly pounding on the windows and yelling for Dustyn to come outside 

and fight him.

[5] The tension between the two groups escalated over the course of approximately 

thirty minutes. The server was aware of the verbal exchange and the nature of 

the insults and informed the cook/manager of the confrontation between the 

groups. Neither of the Steak ’n Shake employees took any action to intervene 

 

1 We held oral argument in this matter on February 15, 2018, in Indianapolis, Indiana. We commend 

counsel for their excellent written and oral advocacy.
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while the groups were seated at their tables, nor did they contact Steak ’n 

Shake’s security agency or the police to defuse the situation. 

[6] The confrontation continued to intensify as the two groups made their way 

toward the cash register. The server and the cook stood behind the counter 

observing the heated exchange between the groups. Only after it seemed as 

though a physical altercation was imminent did the cook/manager address the 

groups, saying several times, “Hey, you guys got to stop it and leave.” 

Appellant’s Appendix Vol. 4 at 54. None of the individuals heeded the order and 

moments later, a physical altercation ensued between Jackson and Dustyn 

inside the Steak ’n Shake near the cash register. Hamilton inserted herself into 

the fray to help her brother and in response to Jackson repeatedly calling her 

names. After Hamilton hit Jackson in the face, Jackson pulled out a gun and 

shot Hamilton point blank in the face, causing Hamilton to suffer serious 

injuries. After the physical confrontation started, the server called for help, and 

after the gun was fired, the cook ran across the street to a nearby business to 

summon help.

[7] On August 8, 2013, Hamilton filed a complaint alleging negligence against 

Steak ’n Shake for failing “to take affirmative action to control the wrongful 

acts of third parties,” which ultimately resulted in harm to her, an invitee of the 

restaurant. Appellant’s Appendix Vol. 2 at 52. After a period of discovery, Steak 

’n Shake filed a motion for summary judgment along with a brief in support 

thereof and designated evidence on October 16, 2014. Hamilton filed a 

response in opposition to summary judgment and her designation of evidence 
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on May 29, 2015. Steak ’n Shake filed a motion to strike Hamilton’s designated 

evidence in opposition to summary judgment along with a reply in support of 

summary judgment. On June 22, 2015, the trial court held a hearing on the 

pending summary judgment motion. On September 24, 2015, the trial court 

entered an order denying Steak ’n Shake’s motion for summary judgment.2

[8] On November 17, 2016, Steak ’n Shake filed a Motion to Reconsider the trial 

court’s order denying its motion for summary judgment in light of the Supreme 

Court’s recent decision in Goodwin. On January 26, 2017, Hamilton filed a 

response directing the trial court’s attention to Rogers, a companion case handed 

down the same day as Goodwin.

3

 Hamilton also filed a supplemental 

designation of evidence. On January 31, 2017, Steak ’n Shake filed a reply in 

support of its motion to reconsider and a motion to strike Hamilton’s 

supplemental designation of evidence. At a February 1, 2017 hearing, counsel 

for both parties presented oral argument on the motion to reconsider and the 

motion to strike. On March 14, 2017, the trial court granted Steak ’n Shake’s 

motion to reconsider and thereafter entered summary judgment in favor of 

Steak ’n Shake based on its determination that Steak ’n Shake did not owe a 

 

2 The trial court also granted Steak ’n Shake’s motion to strike the narrative that accompanied the 

surveillance video of the altercation, the depositions of several witnesses that were obtained for purposes of 

the criminal proceedings against Jackson, an email from Steak ’n Shake’s security company to Steak ’n 

Shake, and a witness’s statement to police.

3 Both cases were handed down on October 26, 2016.
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duty to Hamilton.

4

 Hamilton filed her Notice of Appeal on April 13, 2017. 

Additional facts will be provided as necessary.

Discussion & Decision

[9] We review a grant of summary judgment de novo, in the same way as the trial 

court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). We will affirm such 

a ruling only if, after drawing all reasonable inferences in favor of the nonmoving party, the designated evidence shows that “there is no genuine issue as 

to any material fact and . . . the moving party is entitled to judgment as a matter 

of law. Id. (quoting Ind. Trial Rule 56(C)). “A fact is ‘material’ if its resolution 

would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is 

required to resolve the parties’ differing accounts of the truth, or if the 

undisputed material facts support conflicting reasonable inferences.” Id. 

(quoting Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)). When the trial 

court has granted summary judgment, the nonmoving party has the burden on 

appeal of persuading us that the grant of summary judgment was in error. 

Adams v. ArvinMeritor, Inc., 48 N.E.3d 1, 9 (Ind. Ct. App. 2015).

[10] The parties agree that recent decisions from our Supreme Court—Goodwin and 

Rogers, supra—set forth the analytical framework to be followed by a court in 

 

4 The trial court also granted Steak ‘n Shake’s motion to strike Hamilton’s supplemental designated evidence. 

Hamilton does not challenge this ruling on appeal.
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evaluating foreseeability as it relates to the duty a landowner owes to an invitee 

in negligence actions. This framework provides that 

foreseeability is a general threshold determination that involves 

an evaluation of (1) the broad type of plaintiff and (2) the broad 

type of harm. In other words, this 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. 

Rogers, 63 N.E.3d at 325; see also Goodwin, 62 N.E.3d at 390. To give some 

context, we examine the Supreme Court’s application of this framework to the 

facts in Goodwin and Rogers. 

[11] In Goodwin, a patron at a neighborhood bar overheard what he believed was a 

derogatory comment about his wife. That patron produced a handgun and 

fired it, striking the offending customer as well as two other customers sitting at 

a separate table. There was no prelude to the attack, nor was there any 

involvement of the bar’s staff preceding the verbal exchange and shooting. One 

of the injured patrons brought a complaint for damages against the bar alleging 

negligence in failing to provide security for its patrons. The bar moved for 

summary judgment, claiming that the shooting was not foreseeable and that it 

had no duty to anticipate and take steps to prevent the criminal act. The trial 

court granted summary judgment in favor of the bar. On appeal, the Court of 

Appeals, noting confusion in the law with regard to how a court determines 

whether a duty exists in the context of a negligence claim, reversed the trial 
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court. See Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 28 N.E.3d 310, 311 (Ind. 

Ct. App. 2015), trans. granted. The Supreme Court granted transfer and 

“[e]ndeavor[ed] to clarify the confusion.” Goodwin, 62 N.E.3d at 386.

[12] While foreseeability is most often a component of proximate causation and thus 

a question for the trier of fact, our Supreme Court noted that in some instances, 

including the matter before it, foreseeability is also a component of the duty 

element of negligence. Id. at 389 (noting that “in the case before us” 

foreseeability is a component of duty). This stems from the well-settled law that 

a proprietor owes its invitees a duty “to take reasonable precautions to protect 

invitees from foreseeable criminal acts.” Id. at 388 (emphasis in original). In 

support, the Court cited its prior statement in Paragon Family Restaurant v. 

Bartolini, 799 N.E.2d 1048, 1053 (Ind. 2003), that “[t]here is no doubt ... that 

reasonable foreseeability is an element of a landowner or business proprietor’s 

duty of reasonable care. The issue is merely at what point and in what manner 

to evaluate the evidence regarding foreseeability.” Goodwin, 62 N.E.3d at 388. 

The Court reiterated: 

[i]n sum, because foreseeability is—in this particular negligence 

action—a component of duty, and because whether a duty exists 

is a question of law for the court to decide, the court must of 

necessity determine whether the criminal act at issue here was 

foreseeable. This is not a “redetermination” of the duty a 

landowner owes its invitees. Rather, the focus is on the point 

and manner in which we evaluate whether foreseeability does or 

does not exist. See Bartolini, 799 N.E.2d at 1053. And that point 

initially rests with the trial court as gatekeeper.
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Goodwin, 62 N.E.3d at 389. In other words, the trial court’s job in determining 

whether a duty exists is to evaluate more generally whether the category of 

negligent conduct at issue is sufficiently likely to result in the kind of harm 

experienced such that liability may appropriately be imposed on the negligent 

party. Id. at 390.

[13] The Court then addressed the manner in which courts must undertake the 

determination of whether a duty is owed. The Court first considered and then 

rejected the totality of the circumstances test used in prior cases, finding such 

test to be “inappropriate when analyzing foreseeability in the context of duty.”5 

Id. at 389. The Court then adopted the analytical framework for assessing 

foreseeability in the duty context set forth in Goldsberry v. Grubbs, 672 N.E.2d 

475, 479 (Ind. Ct. App. 1996), in which it was noted that “the foreseeability 

component of proximate cause requires an evaluation of the facts of the actual 

occurrence, while the foreseeability component of duty requires a more general 

analysis of the broad type of plaintiff and harm involved, without regard to the 

facts of the actual occurrence.” Goodwin, 62 N.E.3d at 390. In explaining 

further, the Court noted that 

because almost any outcome is possible and can be foreseen, the 

mere fact that a particular outcome is “sufficiently likely” is not 

enough to give rise to a duty. Instead, for purposes of 

 

5

In rejecting the totality of the circumstances test, the Court abrogated L.W. v. W. Golf Ass’n, 712 N.E.2d 983 

(Ind. 1999), Vernon v. Kroger Co., 712 N.E.2d 976 (Ind. 1999), and Delta Tau Delta v. Johnson, 712 N.E.2d 968 

(Ind. 1999), to the extent they applied such test in determining whether a duty was owed under the 

circumstances of each case. 
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determining whether an act is foreseeable in the context of duty 

we 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.”

Id. at 392 (quoting Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 367 

(Tenn. 2008)).

[14] Applying this framework to the facts of the case, the Goodwin Court noted that 

the broad type of plaintiff was a patron of a bar and that the harm was the 

probability or likelihood of a criminal attack, i.e., a shooting inside the bar. 

The Court stated its belief that bar owners do not “routinely contemplate that 

one bar patron might suddenly shoot another” and that “to impose a blanket 

duty on proprietors to afford protection to their patrons would make proprietors 

insurers of their patrons’ safety which is contrary to the public policy of this 

state.” Id. at 394. The Court held that “a shooting inside a neighborhood bar is 

not foreseeable as a matter of law.” Id. The Court therefore affirmed the trial 

court’s grant of summary judgment in favor of the bar.

[15] In the companion case of Rogers v. Martin, the Court applied this same 

framework to a different factual scenario. In Rogers, a homeowner hosted a 

house party and, unbeknownst to the homeowner, in the later hours thereof, the 

homeowner’s boyfriend got into a fist fight with two guests. The boyfriend got 

the better of the fight. The homeowner subsequently observed one of the guests 

lying motionless on the basement floor. Rather than seek help, the homeowner 

went to bed. The guest was found dead the following morning. The decedent’s 
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estate sued the homeowner alleging, in part, that she was negligent because she 

failed to render aid to her guest after she observed him lying on her basement 

floor. 

[16] The Court began by recognizing that a landowner must exercise reasonable care 

to protect social guests. Rogers, 63 N.E.3d at 321-22. This “duty to protect” 

extends not only to harm caused by a condition of the land, but also to activities 

conducted on the land. Id. at 322-23. For activities occurring on the land, 

“foreseeability is the critical inquiry in determining whether the landowner’s 

duty of reasonable care extends to the particular circumstances.” Id. at 323. 

[17] Given the facts of the case, the Court noted that the factual scenario gave rise to 

“two particular situations,” the first being whether the homeowner owed a duty 

to take reasonable precautions to protect her guest from the harm that occurred 

during the fist fight and the second being whether the homeowner owed a duty 

to protect her guest from an exacerbation of injuries after finding him 

unconscious on her basement floor. Id. at 326. With regard to the first 

situation, the Court defined the inquiry as whether a duty should be imposed on 

a homeowner to take precautions “to prevent a co-host from fighting with and 

injuring a house-party guest.” Id. The Court found that it was “not reasonably 

foreseeable for a homeowner to expect this general harm to befall a house-party 

guest” and that “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. Therefore, the Court held that the homeowner 
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was not liable as a matter of law for any failure on her part to protect her guest 

from an unforeseeable fistfight. Id. at 320. 

[18] With regard to the second situation, the Court found that “[h]omeowners 

should reasonably expect that a house-party guest who is injured on the 

premises could suffer from an exacerbation of those injuries.” Id. at 327. Thus, 

the Court held that summary judgment was improper because, although the 

homeowner did not have a duty to anticipate the fight, she had a duty to render 

assistance once she observed her guest lying motionless on the floor. Id. at 327. 

The Court believed that reasonable persons would recognize and agree that a 

homeowner had a duty under the circumstances. Id.

[19] As was the issue in Goodwin and Rogers, the question presented herein is 

whether a duty exists. If a duty exists, summary judgment was improperly 

granted; if a duty does not exist, summary judgment was properly granted. 

Applying the Goodwin/Rogers framework, the parties reach contrary conclusions 

as to whether Steak ’n Shake owed a duty to Hamilton. 

[20] We begin by noting that Hamilton’s negligence claim is based on premises 

liability. The law is well established that a person entering upon the land of 

another comes upon the land as an invitee, a licensee, or a trespasser. Christmas 

v. Kindred Nursing Ctrs. Ltd. P’ship, 952 N.E.2d 872, 878 (Ind. Ct. App. 2011). 

Thus, the first step in resolving a premises liability case is to determine the 

plaintiff’s status. Id. The status then defines the duty owed from the landowner 

to the visitor. Id. Here, there is no dispute that Hamilton was an invitee. 
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[21] As the Rogers Court noted, 

[u]nder Indiana premises liability law, the duty a landowner 

owes to an invitee is well established: a landowner must exercise 

reasonable care for the invitee’s protection while the invitee is on 

the premises. Because this general duty has been articulated, the 

Court need not judicially determine the existence of a separate 

duty today. Rather, we look to foreseeability as the critical 

inquiry in deciding whether the landowner-invitee “duty to 

protect” extends to a particular scenario.

63 N.E.3d at 320. To be sure, where the harm is not foreseeable, to impose a 

duty on the proprietor/landowner would effectively impose strict liability and 

render the proprietor/landowner an insurer of patron/invitee safety. As our 

Supreme Court noted, this result is contrary to the public policy of this State. 

On the other hand, a proprietor/landowner should not be afforded absolute 

immunity from harm that occurs while on their premises. The element of 

foreseeability is therefore part and parcel of defining the broad type of plaintiff 

and the broad type of harm. In this regard, the Goodwin/Rogers framework is 

consistent with the RESTATEMENT (SECOND) OF TORTS § 344 cmt. f, 

which provides that “[s]ince the possessor is not an insurer of the visitor’s 

safety, he is ordinarily under no duty to exercise any care until he knows or has 

reason to know that the acts of the third person are occurring, or are about to 

occur.” (Emphasis supplied).

[22] In Goodwin, the Court held that there was no duty to anticipate injury arising 

from the conduct of a third party because the conduct was not foreseeable. This 

was the end of the story in Goodwin because the harm resulted after a patron 
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unexpectedly and without warning fired a gun striking several patrons. 

Likewise, in Rogers, a fist fight between the landowner’s boyfriend and a houseparty guest was not predictable.

[23] In Rogers, however, the Court identified a second situation presented by the 

facts that required an independent determination as to whether the landowner 

owed a duty to her invitee. The Court determined once the landowner 

observed her injured guest lying motionless on the floor, the landowner had a 

duty to render assistance. The landowner’s knowledge of the guest’s injury was 

crucial to assessing foreseeability, and in turn, to the determination that the 

landowner owed a duty. The Court noted that a landowner “should reasonably 

expect that a house-party guest who is injured on the premises could suffer from 

an exacerbation of those injuries.” Id. at 327. 

[24] Here, Hamilton asserts that Steak ’n Shake was fully aware of the discord 

between the two groups and the escalating tension that intensified over the 

course of approximately thirty minutes. Indeed, the thirty-minute altercation 

involved not only verbal threats and taunts, but also efforts to incite a physical 

confrontation, blocking of the entrance/exit, and pounding on the windows

from outside of the restaurant. Under these circumstances, Hamilton contends

that the likelihood of harm to her as an invitee was high and that the potential 

for harm was “serious enough to induce a reasonable person to take precautions 

to avoid it.” Appellant’s Brief at 20 (citing Goodwin, 62 N.E.3d at 392). Thus, 

Hamilton argues that Steak ’n Shake had a duty to take action to protect her 

from Jackson’s conduct. 
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[25] Steak ’n Shake, on the other hand, argues that the trial court properly 

determined that, without regard for the specific facts of the case, the broad type 

of plaintiff was a patron in a restaurant and the broad type of harm was the 

criminal act of a third party. Thus, as in Goodwin, where the Court found that 

the bar did not owe a duty to protect a bar patron from an unforeseeable 

criminal act of another, Steak ’n Shake argues that it did not owe a duty to 

Hamilton to protect her from Jackson’s unforeseeable criminal act. Steak ’n 

Shake emphasizes that if a shooting in a bar is not foreseeable as a matter of 

law, then a shooting inside its restaurant is not foreseeable. 

[26] We find Steak ’n Shake’s position too narrow. While in Goodwin the Court 

declared that “a shooting inside a neighborhood bar is not foreseeable as a 

matter of law,” such statement followed the Court’s conclusion that bar owners 

do not “routinely contemplate that one bar patron might suddenly shoot 

another.” Goodwin, 62 N.E.3d at 394 (emphasis supplied). The bar did not 

know or have reason to know that the third party would act in such manner. 

Indeed, the conduct of the third party was sudden and without warning. The 

Court reached the same conclusion with regard to the fist fight that occurred in 

Rogers, finding that it was an unpredictable situation and thus, it was not 

reasonably foreseeable for the landowner to expect that type of harm to befall a 

guest. In both instances, foreseeability was key to the Court’s analysis, and 

foreseeability hinged on what the landowner knew or had reason to know as it 
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concerned the injured party. In Steak ‘n Shake’s application of the 

Goodwin/Rogers framework, it omits the element of foreseeability.6

[27] As argued by Hamilton, we find that the factual scenario presented is akin to 

the second situation identified by the Supreme Court in Rogers, wherein the 

Court redefined the broad type of plaintiff and harm in terms of the landowner’s 

knowledge that a house-party guest had been injured. The Rogers Court 

concluded that 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. Similarly, here, Steak ’n Shake’s knowledge of 

the events taking place on its premises gave rise to a duty to take reasonable 

steps to provide for patron safety. 

[28] Here, we define the broad type of plaintiff and the broad type of harm in terms 

of foreseeability. Hence, the broad type of plaintiff is a restaurant patron who 

has been subjected to escalating threats and taunts and the broad type of harm 

is injury resulting after the encounter culminated in physical violence. Steak ’n 

Shake did not have to know the precise harm that would befall its customer, 

only that there was some probability or likelihood that one of its patrons could 

be harmed and that the potential harm was serious enough that a reasonable 

person would have been induced to take precautions to avoid it. An escalating 

 

6 To accept Steak 'n Shake’s identification of the broad type of plaintiff and broad type of harm would 

essentially extend immunity to proprietors for any harm to a patron resulting from acts of a third party, 

criminal or otherwise, regardless of the circumstances. 
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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, all 

of which Steak ’n Shake had knowledge, clearly created some likelihood that 

one of Steak ’n Shake’s patrons could be harmed and that the potential harm 

could be serious. Given the circumstances, we conclude that Steak ’n Shake

had a duty as a proprietor to take reasonable steps to provide for patron safety 

once the raucous behavior came to its attention.7 This is not to say, however,

that Steak ’n Shake was negligent, as issues of breach and proximate cause must 

still be determined by a trier of fact. 

[29] Having determined that under these facts Steak ’n Shake owed a duty to protect 

Hamilton, we necessarily conclude that the trial court erred in granting 

summary judgment in favor of Steak ’n Shake.

[30] Judgment reversed and remanded.

Baker, J. and Bailey, J., concur.

 

7

 We recognize that there is a sliding scale in terms of what steps would be reasonable under a given set of 

circumstances. This, however, is part of the fact-finder’s determination of breach.