Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017 Page 1 of 12

ATTORNEYS FOR APPELLANT

Robert M. Oakley

Daniel K. Dilley

Dilley & Oakley, P.C.

Carmel, Indiana

ATTORNEY FOR APPELLEE

Keith A. Kinney

Duffin, Hash & Coates, LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Crystal Jones,

Appellant-Plaintiff,

v.

Jerry Wilson d/b/a Hoosier Pro 

Wrestling,

Appellee-Defendant.

August 15, 2017

Court of Appeals Case No.

03A04-1701-PL-233

Appeal from the Bartholomew 

Circuit Court

The Honorable

Stephen R. Heimann, Judge

Trial Court Cause No.

03C01-1502-PL-531

Kirsch, Judge.

[1] Jerry Wilson d/b/a Hoosier Pro Wrestling (“Wilson” or “HPW”) promoted 

and presented a wrestling event, which was held in a building at the 

Bartholomew County Fairgrounds. Crystal Jones (“Jones”) attended the 

wrestling event, and as she walked through the parking lot to her car at night, 

she was assaulted by an unknown assailant. Jones brought a negligence action 
Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017 Page 2 of 12

against Wilson and Bartholomew County 4-H Fair, Inc., and, as is relevant 

here, the trial court granted summary judgment in favor of Wilson.

1

 Jones 

appeals, raising the following restated issue: whether the trial court properly 

determined that Wilson did not owe a duty to Jones to protect her from the 

criminal acts of a third person that occurred in the parking lot.

[2] We affirm.

Facts and Procedural History

[3] On June 7, 2014, Jones attended a live wrestling event that took place in the 

Family Arts building at the Bartholomew County Fairgrounds. The day before, 

Wilson entered into a contract with Bartholomew County 4-H Fair, Inc., 

specifically a Privilege Agreement (“the Agreement”), under which Wilson

rented the Family Arts building for the wrestling event. Appellant’s App. Vol. II

at 33.

[4] Jones arrived at approximately 5:30 p.m., and at around 11:00 p.m., she left the 

building, although the event was not yet over, to get some medication from her 

car. Jones stated that she used her flashlight on her cell phone to illuminate her 

path as the lights in the parking lot were not illuminated. As she walked alone 

 

1 We note that, according to the record before us, Jones’s claims against Bartholomew County 4-H Fair, Inc. 

were resolved by settlement, and Bartholomew County 4-H Fair, Inc. was dismissed from the action in 

February 2017.
Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017 Page 3 of 12

through the parking lot to her vehicle, Jones was attacked by an unknown 

assailant and suffered injuries. 

[5] On February 2, 2015, Jones filed a complaint against Wilson and Bartholomew 

County 4-H Fair, Inc., alleging negligence. Id. at 7-10. She asserted that it was 

dark outside when she left the Family Arts building, she saw no security 

personnel around the immediate exterior of the building or in the parking lot, 

the lighting in the parking lot was not operating the night she was attacked, and 

Wilson “as the host and promoter of the event had a duty to Plaintiff, with 

respect to the maintenance and repair of facility and its condition with regard to 

the safety of attendees such as Plaintiff.” Id. at 9. Jones claimed that Wilson 

breached his duty and that the lack of lighting, lack of security, and presence of 

alcohol proximately caused her injuries. 

[6] As is relevant here, Wilson filed a motion for summary judgment, later 

supplemented, asserting that he had no duty to Jones while she was in the 

parking lot to protect her from unforeseeable criminal acts of a third party. 

Wilson further argued that the Agreement did not place any obligation on 

Wilson to provide security for the parking areas around the building or to 

maintain the lighting in the parking area, which was owned by Bartholomew 

County 4-H Fair, Inc. Id. at 13-17, 24-28. Wilson designated the following 

evidence: (1) the Agreement; (2) Jones’s complaint; (3) and excerpts of the 

deposition of Larry Fisher (“Fisher”), who was the president of the 

Bartholomew County Fair Board. Asserting that he owed no duty to Jones,

Wilson claimed that he was entitled to judgment as a matter of law.
Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017 Page 4 of 12

[7] Jones filed her response to Wilson’s summary judgment motion, and, in 

support, she relied upon the following evidence: portions of Wilson’s 

deposition; Jones’s responses to interrogatories; the complaint; portions of 

Fisher’s deposition; and the Agreement.2 In opposing summary judgment, she 

argued that summary judgment was not proper because material facts were in 

dispute as to whether the lights in the parking lot were functioning. She also 

asserted that Wilson had a duty to take reasonable precautions to protect 

business invitees, such as Jones, from foreseeable criminal acts and that, under 

the circumstances here, the attack was reasonably foreseeable where Jones had 

to walk through “a relatively secluded and unlit, grassy parking area.” Id. at 23. 

She maintained that “this absence of exterior lighting is a condition of the land 

which contributed to the likelihood of the attack on [] Jones.” Id. at 28. 

Following a hearing, the trial court issued an order granting Wilson’s motion 

for summary judgment.3 Jones now appeals. 

 

2

Jones does not include in her appendix any designation of evidence that she may have filed. However, we 

observe that Plaintiff’s Response to Defendant’s Motion for Summary Judgment (“Response”) cites to and 

quotes from Jerry Wilson’s deposition, Jones’s responses to interrogatories, the complaint, Larry Fisher’s 

deposition, and the Agreement; she identifies those materials in her Response as Exhibits A-E, respectively. 

Appellant’s App. Vol. II at 11-24. Jones provides some, but not all, of those materials in her Appendix. Jones 

also includes in her Appendix excerpts from her own deposition, which is marked as Exhibit 3, see id. at 34-

40, but it is not clear from the record whether it was Plaintiff’s or Defendant’s Exhibit 3, what document it 

was an exhibit to, and if it was designated evidence considered by the trial court. We also note that page 2 of 

Appellant’s Appendix Vol. II appears to be a cover page to an “Exhibit Volume,” but no exhibit volume is 

included in the record before us. 

3 We note that the trial court’s order granting summary judgment did not include specific findings of fact and 

conclusion of law in support of its judgment. Appellant’s App. Vol. II at 5-6. Specific findings are not required 

in summary judgment proceedings and are not binding on appeal. AutoXchange.com. Inc. v. Dreyer and 

Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct. App. 2004).
Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017 Page 5 of 12

Discussion and Decision

[8] When reviewing a grant or denial of a motion for summary judgment our wellsettled standard of review is the same as it is for the trial court: whether there is 

a genuine issue of material fact, and whether the moving party is entitled to 

judgment as a matter of law. Wagner v. Yates, 912 N.E.2d 805, 808 (Ind. 2009). 

The party moving for summary judgment has the burden of making a prima 

facie showing that there is no genuine issue of material fact and that the moving 

party is entitled to judgment as a matter of law. Goodwin v. Yeakle’s Sports Bar & 

Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). Once these two requirements are 

met by the moving party, the burden then shifts to the non-moving party to 

show the existence of a genuine issue by setting forth specifically designated 

facts. Id. Any doubt as to any facts or inferences to be drawn therefrom must 

be resolved in favor of the non-moving party. Id. Summary judgment should 

be granted only if the evidence sanctioned by Indiana Trial Rule 56(C) shows 

that there is no genuine issue of material fact and the moving party deserves 

judgment as a matter of law. Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 39 (Ind.

2002). The party appealing the grant of summary judgment has the burden of 

persuading this court that the trial court’s ruling was improper. Hoosier 

Mountain Bike Ass’n, Inc. v. Kaler, 73 N.E.3d 712, 716 (Ind. Ct. App. 2017)

(citing First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct. 

App. 2008), trans. denied). Where the challenge to summary judgment raises 

questions of law, we review them de novo. Rogers v. Martin, 63 N.E.3d 316, 320 

(Ind. 2016).
Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017 Page 6 of 12

[9] To recover in negligence, the plaintiff must establish: (1) a duty on the part of 

the defendant to conform his conduct to a standard of care arising from his 

relationship with the plaintiff; (2) a failure on the part of the defendant to 

conform his conduct to the requisite standard of care; and (3) an injury to the 

plaintiff proximately caused by the breach. Nance v. Holy Cross Counseling Grp., 

804 N.E.2d 768, 771 (Ind. Ct. App. 2004), trans. denied. Absent a duty, there 

can be no breach and, therefore, no recovery in negligence. Id. at 772.

Whether a duty exists is a question of law for the court to decide. Goodwin, 62 

N.E.2d at 389.

[10] In this case, the threshold inquiry is whether Wilson owed a duty to Jones, an 

invitee, to protect her from a criminal attack by an unknown assailant while she 

was in the parking lot around 11:00 p.m., having exited the building that 

Wilson had rented from the fairgrounds for the wrestling event.4 As a 

preliminary matter, we observe that the record before us indicates that Wilson

rented the Family Arts building on the Bartholomew County Fairgrounds, but 

nothing establishes that any duty Wilson may have had to Jones that night

extended beyond the Family Arts building and into the grassy area used for 

 

4

“‘Under Indiana law, an invitee is a person who goes onto the land of another at the express or implied 

invitation of the owner or occupant either to transact business or for the mutual benefit of invitee and owner 

or occupant.’” Winfrey v. NLMP, Inc., 963 N.E.2d 609, 612 (Ind. Ct. App. 2012) (quoting Markle v. Hacienda 

Mexican Rest., 570 N.E.2d 969, 971 (Ind. Ct. App. 1991)). “‘A licensee is one who enters premises of another 

for his own convenience, curiosity, or entertainment.’” Id. There appears to be no disagreement between the 

parties that Jones was an invitee when she was injured. 
Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017 Page 7 of 12

parking. On that point, Wilson argued to the trial court during summary 

judgment proceedings, 

[Wilson] had no duty to do anything with regard to the lighting. 

The only thing that [Wilson] was responsible for that evening 

was the Family Arts building. [Wilson] did not rent the parking 

lot, did not receive payment from people who parked in the 

parking lot, and had no responsibility to see that the lights were 

working. That was the Fair’s responsibility. 

Appellee’s App. Vol. II at 21. However, on appeal, Wilson states, perhaps 

concedes, “Wilson does not dispute that Jones was a business invitee of Wilson 

when she was attacked, even though she had left the building.” Appellee’s Br. at 

7. Assuming without deciding that any duty that Wilson owed to Jones would 

have extended to the parking lot, we turn to the issue of whether, based on 

existing caselaw concerning a landowner’s duty to protect invitees against 

attacks by third parties, Wilson had a duty in this case to protect Jones against 

the criminal attack. 

[11] Necessary to our decision today is consideration of, in particular, two 2016 

Indiana Supreme Court cases, namely: Rogers v. Martin and Goodwin v. Yeakle’s 

Sports Bar & Grill, Inc. These cases “redrew the premises liability landscape[.]”

Hoosier Mountain Bike Ass’n, 73 N.E.3d at 716 n.4. The Goodwin and Rogers

cases reviewed the evolution of premises liability law in Indiana, initially 

observing the general duty a landowner owes to an invitee: a landowner must 

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

premises. Rogers, 63 N.E.3d at 320. However, “although landlords owe 
Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017 Page 8 of 12

invitees a well-established ‘duty to protect,’ courts must look at one critical 

element before extending that duty to cases where an invitee’s injury occurs not 

due to a dangerous condition of the land but due to some harmful activity on 

the premises. That element is foreseeability.” Id. at 324. That is, while 

landowners have a duty to take reasonable precaution to protect their invitees 

from criminal attacks by third parties, there is a foreseeability component in 

that analysis, requiring the trial court to decide, in the context of duty, whether 

the criminal act was foreseeable. 

[12] Our Supreme Court distinguished the foreseeability component in the context 

of duty from the foreseeability component in the context of proximate cause, 

stating: “‘[T]he foreseeability component of proximate cause requires an 

evaluation of the facts of the actual occurrence, while foreseeability as a 

component of duty involves a lesser inquiry which requires a more general 

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

facts of the actual occurrence.’”

5

 Goodwin, 62 N.E.3d at 391 (quoting Goldsberry 

v. Grubbs, 672 N.E.2d 475, 479 (Ind. Ct. App. 1996), trans. denied); see also

Rogers, 63 N.E.3d at 325 (foreseeability in duty context is general threshold 

determination that “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 

 

5

In reaching this distinction, the Goodwin Court specifically rejected the use of the “totality of the 

circumstances” test when analyzing foreseeability analysis in the context of duty. See Goodwin v. Yeakle’s 

Sports Bar & Grill, Inc., 62 N.E.3d 384, 389 (Ind. 2016) (“[W]e now recognize that although the ‘totality of the 

circumstances’ test is useful in determining foreseeability in the context of proximate causation, it is 

inappropriate when analyzing foreseeability in the context of duty.”)
Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017 Page 9 of 12

to be expected—without addressing the specific facts of the occurrence”). The 

Goodwin Court further clarified the trial court’s task when determining whether 

a criminal act was foreseeable:

But 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 

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.”

Goodwin, 62 N.E.3d at 392 (quoting Satterfield v. Breeding Insulation, Co., 266 

S.W.3d 347, 367 (Tenn. 2008)). 

[13] Here, in support of his contention that the criminal assault on Jones was not 

foreseeable and that he did not owe a duty to Jones, Wilson submitted evidence 

showing that he rented the Family Arts building for one night from 

Bartholomew County 4-H Fair, Inc., as he had done on prior occasions, that

the Agreement did not place obligations on Wilson to provide security for 

parking areas around the Family Arts building or take care of the lighting 

outside of the building, and that, Fisher, the Fair Board president, was not 

aware of any prior such criminal attacks in the twenty-plus years that he had 

been involved with the organization. Wilson argues that, applying the 

foreseeability test of Goodwin and Rogers, which requires an evaluation of (1) the 

broad type of plaintiff and (2) the broad type of harm, without consideration of 

the actual facts, he did not owe a duty to Jones. Specifically, Wilson argues, 
Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017 Page 10 of 12

the broad type of plaintiff in this case was a paying spectator at a wrestling 

match and the broad type of harm was a random criminal attack, the type of 

which had not occurred in decades, occurring outside the building that Wilson 

had rented. Wilson argues that its designated evidence showed that any attack 

was not foreseeable, he did not owe a duty to Jones in that situation, and the 

trial court properly granted summary judgment in favor of Wilson. 

[14] Jones argues that, while foreseeability plays a role in the analysis of duty in 

some cases, it does not in her particular case. Her argument is that her injuries 

and claim relate to a condition of the land, and in that situation, a foreseeability 

analysis in the context of duty is neither warranted nor appropriate. Appellant’s 

Br. at 12-13 (referring to Rogers, 63 N.E.3d at 321). Jones is correct that in cases 

“[w]hen a physical injury occurs as a result of a condition on the land,” the

Restatement (Second) of Torts section 343 “accurately describe[s] the 

landowner-invitee duty,”

6 and a foreseeability analysis as to duty is not 

required. See Rogers, 63 N.E.3d at 322-23 (distinguishing cases where injury 

 

6 The Restatement (Second) of Torts section 343 provides:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, 

but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it 

involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, 

and

(c) fails to exercise reasonable care to protect them against the danger.

Rogers v. Martin, 63 N.E.3d 316, 322 (Ind. 2016) (quoting Burrell v. Meads, 569 N.E.2d 637, 639-40 (Ind. 

1991)).
Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017 Page 11 of 12

results from “a condition on the land” from those cases in which invitees suffer 

injuries “due to activities on a landowner’s premises,” in which “foreseeability 

is a necessary inquiry in determining whether the landowner’s duty of 

reasonable care extends to the particular circumstances”). Jones urges that her 

case falls into the former category – injury due to a condition on the land – such 

that “the element of duty has been declared or otherwise articulated,” and, 

accordingly, there is no need to engage in a foreseeability analysis as to duty. 

Appellant’s Br. at 12-13. More specifically, Jones’s position is that the lack of

lighting is a condition of the land that contributed to the attack, and, therefore, 

the duty is clearly established and the foreseeability inquiry goes only to a

proximate cause inquiry. Jones maintains that Wilson owed a duty to Jones

and that the trial court erred when it granted summary judgment to Wilson

because proximate cause issues remained for the factfinder. 

[15] In response, Wilson urges that the parking lot lights are not “a condition of the 

land,” pointing out that an assailant injured her, not the parking lot lights, and 

that she was not injured when she stepped in a hole or otherwise injured 

because of some condition of the land, and, therefore, this case is not a 

“condition of the land” case where duty has already been declared or 

articulated. We agree with Wilson in this regard. Jones’s injuries resulted from 

the conduct of a third person, and we find that the foreseeability test outlined in 

Goodwin and Rogers must be applied to see if a duty exists at all. Under that test 

– examining (1) the broad type of plaintiff and (2) the broad type of harm, 

without consideration of the actual facts – we find that the harm inflicted on 
Court of Appeals of Indiana | Opinion 03A04-1701-PL-233 | August 15, 2017 Page 12 of 12

Jones was not normally to be expected, and thus not foreseeable, and Wilson

did not owe a duty to Jones. See Goodwin, 62 N.E.3d at 393-94 (recognizing 

that, although bars “can often set the stage for rowdy behavior,” bar owners do 

not routinely contemplate that one patron might shoot another and shooting 

inside neighborhood bar was not foreseeable, such that bar owner did not owe 

duty to injured patron in that case); Rogers, 63 N.E.3d at 326 (“Although house 

parties can often set the stage for raucous behavior, we do not believe that hosts 

of parties routinely physically fight guests whom they have invited. Ultimately, 

it is not reasonably foreseeable for a homeowner to expect this general harm to 

befall a house-party guest.”). Here, Jones has failed to carry her burden to 

show us that the trial court’s decision to grant summary judgment in favor of 

Wilson was improper.

[16] Affirmed.

Mathias, J., and Altice, J., concur.