Barteau, Senior Judge
Statement of the Case
Appellant Jeffery Certa appeals the trial court’s entry of summary judgment in favor of Appellee Steak ‘n Shake.1 We reverse and remand.
Issue
Certa presents one issue for our review: whether the trial court erred in granting Steak ‘n Shake’s motion for summary judgment.
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In this case, both parties acknowledge the applicability of Rogers and Goodwin to the situation, but they disagree about the ensuing result. Certa asserts that Steak ‘n Shake, as a 24-hour restaurant, had a reasonable duty of care to protect him from injury inflicted by intoxicated patrons when Steak ‘n Shake knew Certa and the patrons had engaged in a verbal altercation and was aware of the potential for escalation of the conflict.
Steak ‘n Shake, on the other hand, argues the trial court properly determined that Steak ‘n Shake did not owe a duty to Certa because it was not foreseeable that Certa, a restaurant patron, would be injured by an intoxicated patron in the parking lot of a restaurant that does not serve alcohol. Steak ‘n Shake maintains that in this case the broad type of plaintiff is a patron of a restaurant and the broad type of harm is a criminal attack from a third party.
Application of the broad type of plaintiff and harm analysis is not as narrow as Steak ‘n Shake suggests. In this analysis, foreseeability is the “critical inquiry,” and this inquiry acknowledges that the landowner-invitee duty to protect is not limitless; rather, some harms are so unforeseeable that a landowner has no duty to protect an invitee against them. Rogers, 63 N.E.3d at 320, 324. Yet, even given the “lesser inquiry” that is the broad plaintiff/harm analysis, the court considered what the landowner knew or had reason to know as it concerned the injured party in both Goodwin and Rogers when determining the foreseeability of these events. Goodwin, 62 N.E.3d at 390, 393 (quoting Goldsberry, 672 N.E.2d at 479). This approach is consistent with the RESTATEMENT (SECOND) OF TORTS § 344 cmt. f, which provides, “[s]ince the possessor [of land] 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.”
For example, in Goodwin, the court acknowledged that bar owners do not “routinely contemplate that one bar patron might suddenly shoot another.” Id. at 394 (emphasis added). Use of the word “suddenly” indicates that this was an unexpected occurrence relative to the landowner/bar owner. Likewise, in Rogers, the court called the fight an “unpredictable situation” and stated that hosts of parties do not “routinely physically fight guests whom they have invited.” Id. at 326. Again, the court’s language reflects the unanticipated nature of the fight vis-à-vis the landowner/homeowner. Finally, with regard to the second issue of duty in Rogers, the court decided that the landowner/homeowner’s knowledge that the guest had been injured gave rise to a duty to protect the guest from exacerbation of the injury occurring in her home. Thus, what the landowner knew or had reason to know is a pivotal consideration in determining foreseeability which Steak ‘n Shake disregards in its analysis.
Accordingly, as did our supreme court in Goodwin and Rogers, we apply the broad type of plaintiff and the broad type of harm analysis and determine the foreseeability of the events with consideration of what Steak ‘n Shake knew or had reason to know. The broad type of plaintiff is a restaurant patron, and the broad type of harm is injury caused by a third party. In determining the foreseeability, we are mindful that Steak ‘n Shake did not have to know the precise harm that its customer would suffer, only that there was some probability or likelihood of harm that was serious enough to induce a reasonable person to take precautions to avoid it. See Goodwin, 62 N.E.3d at 392. Steak ‘n Shake knew that a heated encounter that began outside the restaurant between two groups of intoxicated people spilled into the restaurant. The Steak ‘n Shake server was told by her niece that she feared a fight would ensue, and the groups exchanged dirty looks and finger pointing while inside the restaurant. In addition, the Steak ‘n Shake server specifically informed her manager that the two groups might be trouble. Further, Certa indicated to the Steak ‘n Shake server that he would retaliate if Gillham engaged him in the parking lot. Given these circumstances, we conclude that Steak ‘n Shake’s knowledge of the events on its premises in this case gave rise to a duty to take reasonable steps to provide for Certa’s safety as a patron of its establishment.
We caution that our determination is only of the existence of a duty in this situation. The issues of breach of that duty and proximate cause must still be determined by the trier of fact.
Conclusion
Thus, having determined that Steak ‘n Shake owed a duty to Certa, we necessarily conclude that the trial court erred in granting summary judgment in favor of Steak ‘n Shake.
Reversed and remanded.
Riley, J., and Brown, J., concur.