Crone, J.
Case Summary
Shortly after closing time, several patrons of Cavanaugh’s Sports Bar & Eatery, Ltd. (“Cavanaugh’s”), became involved in an altercation in Cavanaugh’s parking lot, and patron Eric Porterfield was injured. Porterfield filed a personal injury action, claiming that Cavanaugh’s was negligent in failing to take reasonable care for his safety against criminal attacks in its parking lot. In this interlocutory appeal, Cavanaugh’s challenges the denial of its motion for summary judgment. Finding that Cavanaugh’s failed to establish as a matter of law that it did not owe Porterfield a duty to protect him from criminal activity in its parking lot, we affirm the denial of summary judgment.
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Cavanaugh’s relies on our supreme court’s decision in Goodwin as support for its argument that it had no duty to protect Porterfield against the harm suffered…
Goodwin is similar to this case in some respects. Both cases involve the same broad type of plaintiff, a bar patron/invitee. Both Goodwin and this case involve harm related to an activity on the land, a criminal attack. Nevertheless, in analyzing foreseeability, i.e., the probability or likelihood of the criminal attack, we must look at the nature of the attack. Goodwin involved the sudden shooting of bar patrons by another patron inside the bar. This case involves a fistfight between bar patrons in the parking lot just after closing. We believe that the distinction between a shooting and a fistfight is pivotal when examining foreseeability within the context of duty. See Certa, 102 N.E.3d at 341 (even in the broader context of determining duty, “what the landowner knew or had reason to know is a pivotal consideration in determining foreseeability[.]”)
Cavanaugh’s correctly distinguishes this case from those in which there was designated evidence of mounting tensions between groups of patrons during their time inside the bar/restaurant. See, e.g., Hamilton v. Steak ‘n Shake Operations Inc., 92 N.E.3d 1166, 1167 (Ind. Ct. App. 2018)…
In contrast, here, no evidence was designated to indicate that Cavanaugh’s had express notice concerning tensions between Porterfield and the perpetrators. Nonetheless, the designated evidence shows that the altercation occurred immediately after the Saturday night/Sunday morning crowd had been herded out of Cavanaugh’s at its 3:00 a.m. closing time. See Appellant’s App. Vol. 2 at 67 (designated excerpt from Porterfield’s deposition describing the scene moments before altercation as “a lot of people going out” into parking lot as Cavanaugh’s personnel sought to clear the building). From what we can tell, an exchange of words quickly escalated to physical violence. Cavanaugh’s designated expert characterized the incident as “an instantaneous and unforeseeable event because the actions occurred after the parties left Cavanaugh’s.” Id. at 127. To the extent that this reasoning suggests that incidents beginning outside the four corners of the building fall outside the scope of the proprietor’s duty to patrons, we find it overly simplistic.
We believe that parking lot fistfights at closing time are generally within the type of “rowdy behavior” that bar owners should contemplate, Goodwin, 62 N.E.3d at 393-94, and that, in particular, Cavanaugh’s history of reported incidents gave it reason to contemplate further such incidents in its own parking lot. To say that a bar owner’s duty to protect its patrons extends only to herding them through the exits at closing time is to essentially immunize the bar owner for violence that ensues between patrons immediately thereafter in its parking lot. We do not believe that the Goodwin court intended so broad a sweep of the pendulum, especially where the bar has a documented history of similar incidents on its grounds. This is not to say that Cavanaugh’s breached its duty to Porterfield; that will be a determination for the trier of fact once presented with evidence of the detailed circumstances of this case. We simply conclude that Cavanaugh’s has failed to establish as a matter of law that it owed no duty to protect Porterfield. Accordingly, we affirm the trial court’s denial of Cavanaugh’s motion for summary judgment.
Affirmed.
Vaidik, C.J., and Mathias, J., concur