Plaintiffs' first assignment of error contends the trial court erred in granting Cunningham's motion for summary judgment. Specifically, plaintiffs contend Cunningham owed a duty to plaintiff to provide parking lot security. The existence of a duty depends on the foreseeability of an act. The test for foreseeability is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. If the attacks in the parking lot were not foreseeable, then Cunningham cannot be liable in negligence for them.
Plaintiffs point to four factors in an attempt to demonstrate that the attack was foreseeable.
Next, plaintiffs point to deposition testimony which indicates Cunningham knew alcoholic beverages were being served on the premises and intoxicated patrons were using the parking lot. Thirdly, plaintiffs contend the very nature of the establishment on the premises, a tavern, makes it reasonably foreseeable that a fight will occur in the parking lot. Plaintiffs' contentions, either individually or collectively, do not give rise to a genuine issue of material fact regarding the foreseeability of the attacks. Cunningham was not aware of the forty incident reports. Moreover, even if Cunningham should have known of them and the incidents they represent, only a few of the incident reports related to conduct causing any sort of personal injury.