Altice, J.
Case Summary
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.
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.
We reverse and remand
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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.
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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.
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.
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 concerned the injured party. In Steak ‘n Shake’s application of the Goodwin/Rogers framework, it omits the element of foreseeability. [FN 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.]
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.
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 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. [Footnote omitted.] 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.
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.
Judgment reversed and remanded.
Baker, J. and Bailey, J., concur.