Robb, J.
Case Summary and Issue
Rachelle Godfread was killed when a man began shooting inside a Martin’s Super Market (the “Store”) in Elkhart, Indiana. Anthony Rose, as special administrator of Godfread’s estate (the “Estate”), sued the Store for negligence. [Footnote omitted.] The parties filed cross motions for summary judgment. The trial court entered final judgment granting the Store’s motion for summary judgment and denying the Estate’s. The Estate appeals, raising two issues for our review that we consolidate and restate as one: whether the trial court erred in granting summary judgment to the Store on the issue of duty. Concluding the Store, as a matter of law, did not have a duty to Godfread either before or after the shooting began, we affirm.
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In its motion, the Estate contended “it was foreseeable that an active shooter situation would occur on the night in question and that [the Store’s] direct actions [or inactions] further created a duty to protect [Godfread].” Appellant’s Corrected App., Vol. 2 at 22. Specifically, the Estate argued that the Store contemplated an active shooter situation at least sixteen months before this incident when it issued its “Active Shooter Protocol” memo and therefore this shooting was foreseeable. Id. at 21. The Estate also argued that the Store’s action “or lack of appropriate action” in the sixty-four seconds between the first shot in the store and the shot that killed Godfread created a duty to protect Godfread, pursuant to Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016). Id. at 23. In its cross-motion, the Store argued the shooting inside its store was not foreseeable as a matter of law, comparing this case to Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 392 (Ind. 2016). The Store further contends that once the shooting began, it had no additional duty to assist Godfread until it knew she had been injured, and by the time it knew of her injury, it was too late to help her.
Essentially, the parties’ arguments raise two separate time frames and distinct sets of facts as relevant for determining whether the Store owed a duty to Godfread: first, whether the Store had a duty to anticipate the shooting and take reasonable precautions to protect Godfread from harm before the shooting began, and second, whether the Store had a duty to protect Godfread after the shooting began. We address each particular situation in turn.
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Applying the Goodwin analysis to this case, the broad type of plaintiff here is a customer in a grocery store and the broad type of harm is the probability or likelihood of being shot by a third person while in the store. The Estate urges us to consider the “Active Shooter Protocol” memo the Store sent to its managers over a year before this incident as evidence that it had, in fact, contemplated an active shooter incident and this incident was therefore foreseeable. In Cosgray, the court determined a resort had no duty to protect a hotel guest from a criminal attack by an unknown assailant while she was in her room with her door intentionally left unlocked and ajar. 102 N.E.3d at 901. The hotel guest had asked the court to consider an “ongoing history of assaults and batteries and a prior reported rape” and the specific safety measures and warnings in place at the resort in its analysis of whether there was a duty. Id. The court rejected this “inclination to incorporate the totality of the circumstances into our consideration of the duty element” given that Goodwin specifically rejected that test. Id.; see also Goodwin, 62 N.E.3d at 389 (“[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.”). Similarly, factoring the memo into the equation here is akin to evaluating the totality of the circumstances. We, like the court in Cosgray, decline to do so. [Footnote omitted.]
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Here, the shooter was in the store for forty minutes before he drew his gun, but he did nothing during that time to draw attention to himself or betray his intentions. He interacted normally with store employees and aroused no suspicion based upon what he was wearing or what he was doing. Zimmer noted that the shooter had come into the store on several prior occasions and would walk around for extended periods of time, leaving without incident. Therefore, seeing him on the security cameras raised no alarms for Zimmer. Unlike the situations in Certa, Hamilton, and Falaschetti, the Store had no knowledge of events on its premises that would lead it to contemplate that a regular customer acting in his customary manner would suddenly pull out a gun and shoot at employees and other customers. If a bar, which is inherently an establishment that “can often set the stage for rowdy behavior,” has no duty to a patron who was suddenly shot by another patron, Goodwin, 62 N.E.3d at 393, then it is difficult to see how a grocery store, which has no similar reputation for rowdiness or confrontation, could expect such harm to befall an invitee on its premises.
As the court noted in Goodwin, all criminal activity is foreseeable to a certain degree, see id. at 394, and it is a sad reality of this day and age that a shooting can occur anywhere at any time. But that does not mean that every store, yoga studio, and movie theatre is required to provide protection for its patrons at all times on the chance that a madman will choose to open fire in its public space, nor does it mean that proactively preparing for such a possibility in a broad way makes any given incident foreseeable. Thus, we agree with the trial court that although the shooting was “terrible and tragic[,]” Appealed Order at 7, as a matter of law, the Store had no duty to Godfread before the shooting began.
B. After the Shooting Began
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The duty in Rogers was not premised on Martin’s anticipation or knowledge of the fight, but on her knowledge of an injury caused by the fight. She then had a corresponding duty to protect against exacerbation of that injury in her home. See 63 N.E.3d at 327 (“Martin did, however, have a duty to protect Michalik after she found him lying unconscious”) (emphasis added). As stated in Hamilton, Martin’s “knowledge of the guest’s injury was crucial to assessing foreseeability, and in turn, to the determination that [she] owed a duty.” 92 N.E.3d at 1172. Here, the Store had knowledge for a brief period of time that a person in the store was shooting a gun but had no knowledge of Godfread’s injury until it was too late to offer her assistance. With no knowledge of Godfread’s injury, the Store had no duty to take action to prevent exacerbation of those injuries.
Conclusion
Ultimately, it was not reasonably foreseeable for a grocery store to expect death by gunfire to befall a customer and therefore, the Store had no duty to Godfread prior to the shooting. And, because the Store did not have knowledge of Godfread’s injury in time to offer her assistance, the Store had no duty to protect her from exacerbation of her injuries. The trial court appropriately granted summary judgment to the Store and therefore, the trial court’s judgment is affirmed.
Affirmed.
Riley, J., and Kirsch, J., concur.