Massa, J.
Eric Porterfield sued Cavanaugh’s Sports Bar & Eatery for negligence after a sudden fight in the bar’s parking lot at closing time left him grievously injured. Cavanaugh’s moved for summary judgment, arguing that it owed Porterfield no duty because the incident was unforeseeable. After the trial court denied the motion, our Court of Appeals, in an interlocutory appeal, affirmed.
Landowners must “take reasonable precautions to protect invitees from foreseeable criminal attacks.” Rogers v. Martin, 63 N.E.3d 316, 326 (Ind. 2016) (citation omitted). Ascertaining whether this duty extends to “the criminal act at issue,” Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 389 (Ind. 2016), in a “particular scenario,” Rogers, 63 N.E.3d at 320, hinges on the foreseeability of the attack, requiring “a general threshold determination that involves an evaluation of (1) the broad type of plaintiff and (2) the broad type of harm,” id. at 325. When considering these categories, courts should determine whether the defendant knew or had reason to know of any present and specific circumstance that would cause a reasonable person to recognize the probability or likelihood of imminent harm.
Under the criminal act at issue in this particular scenario, Cavanaugh’s owed no duty to protect its patron from the sudden parking lot brawl when no evidence shows that Cavanaugh’s knew the fight was impending. Because we continue to decline to impose a comprehensive “duty on proprietors to afford protection to their patrons” from unpredictable criminal attacks, Goodwin, 62 N.E.3d at 394, we reverse and remand.
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Porterfield, under our premises liability jurisprudence, accuses Cavanaugh’s of breaching its duty “to take reasonable precautions to protect [him] from foreseeable criminal attacks.” Rogers, 63 N.E.3d at 326. To determine whether this well-established duty extends to “the criminal act at issue,” Goodwin, 62 N.E.3d at 389, in a “particular scenario,” Rogers, 63 N.E.3d at 326, the “critical inquiry” is to answer whether the criminal attack was foreseeable, id. at 323–24. But foreseeability in this context—as a component of duty—is evaluated differently than foreseeability in proximate cause determinations: while the latter foreseeability analysis requires a factfinder to evaluate the specific facts from the case, the former “involves a lesser inquiry,” requiring a court, as a threshold legal matter, to evaluate “the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence.” Goodwin, 62 N.E.3d at 393 (citation omitted); see generally id. at 392 (rejecting a prior-used totality test because it “focuses on the particular facts of the case rather than a broader inquiry” and “is ill-suited to determine foreseeability in the context of duty”). By focusing “on the general class of persons of which the plaintiff was a member and whether the harm suffered was of a kind normally to be expected,” Rogers, 63 N.E.3d at 325, courts must “assess whether there is some probability or likelihood of harm that is serious enough to induce a reasonable person to take precautions to avoid it,” not merely that harm is “sufficiently likely,” Goodwin, 62 N.E.3d at 392 (quotation omitted). “[B]ecause almost any outcome is possible and can be foreseen,” id., this ensures “that landowners do not become the insurers of their invitees’ safety,” Rogers, 63 N.E.3d at 324 (quotation omitted).
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But without notice of present and specific circumstances that would cause a reasonable person to recognize the risk of an imminent criminal act, our Court of Appeals has consistently held since Goodwin and Rogers—until now—that landowners cannot foresee these sudden attacks.
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And Cavanaugh’s had no reason to foresee a bar patron blinding another during a sudden parking lot fight. Unlike the cases where courts have found a duty when a landowner knew or should have known about likely looming harm, Porterfield does not show that Cavanaugh’s had any reason to believe the fight would occur. The skirmish occurred suddenly and without warning: for hours before the fracas, Porterfield and his friend socialized with bartenders and had no animosity with any other customers. Indeed, no evidence suggests any tension in the bar before the fight. Cf. Hamilton, 92 N.E.3d at 1173 (holding fight foreseeable when restaurant knew of “[a]n escalating thirty-minute encounter” between specific groups); Certa, 102 N.E.3d at 340–41 (holding fight foreseeable when restaurant knew “patrons had engaged in a verbal altercation and was aware of the potential for escalation of the conflict”). And the bar had no reason to think that Porterfield, his assailants, or any of their affiliates were particularly suited to committing the specific criminal acts they perpetrated. Cf. Buddy & Pals, 118 N.E.3d at 43 (holding fight foreseeable when bar knew patron “was not taking his ejection [for fighting] well and was in a fighting mood”); Delta Tau Delta, 2018 WL 3375016, at *4 (holding sexual assault foreseeable when “fraternity knew or should have known of the prior allegations” of sexual assault against particular member).
By pointing to police runs made to the bar during the year before the quarrel, Porterfield improperly substitutes evidence of the bar’s past raucousness for contemporaneous knowledge of imminent harm. We repeat, this type of historical evidence, while “appropriate in evaluating foreseeability in the context of proximate cause,” should play no role when we evaluate “foreseeability as a component of duty.” Goodwin, 62 N.E.3d at 393. Considering prior reports of the bar’s unruliness shifts our common law jurisprudence back into a recently supplanted totality analysis and risks fabricating a duty when harm is merely “sufficiently likely.” Id. at 392 (quotation omitted). A landowner’s present knowledge, however, more conclusively elevates the knowledge of risk to “some probability or likelihood of harm,” id., allowing courts to continue to find a duty when “reasonable persons would recognize it and agree that it exists,” Rogers, 63 N.E.3d at 325.
Although businesses must exercise reasonable care to protect their patrons from foreseeable harms, they aren’t “the insurers of their invitees’ safety.” Id. at 324 (quotation omitted). Imposing a comprehensive “duty on proprietors to afford protection to their patrons” from sudden and unexpected criminal acts like the one committed in this “particular scenario,” however, does just that. Goodwin, 62 N.E.3d at 394. Because we will not “abandon the notion of liability based on negligence and enter the realm of strict liability,” id., Cavanaugh’s owed Porterfield no duty to protect him against this unforeseeable criminal attack.
Conclusion
Landowners must “take reasonable precautions to protect invitees from foreseeable criminal attacks.” Rogers, 63 N.E.3d at 326. To determine whether this duty, as a matter of law, extends to the criminal act at issue in a particular scenario, the critical inquiry is to determine whether the attack was foreseeable, considering the broad type of plaintiff, the broad type of harm, and whether the landowner had reason to expect any imminent harm. Because we hold that the criminal attack at issue here was unforeseeable, the duty of Cavanaugh’s to protect Porterfield did not extend to this particular scenario. We reverse and remand with instructions for the trial court to enter summary judgment for Cavanaugh’s.
Rush, C.J., and Slaughter, J., concur.
Goff, J., dissents with separate opinion in which Justice David joins
Goff, J., dissenting.
I respectfully dissent from the Court’s opinion granting summary judgment to Cavanaugh’s. While I appreciate the majority’s thorough review of recent caselaw concerning foreseeability in the context of duty, I disagree with it in two primary respects. First, the majority adds new requirements to our foreseeability inquiry, elevating the standard to impose a duty. Second, the majority focuses on the particular facts of this case, contrary to the standard provided by precedent. Both problems cause issues on their own, but, more broadly, they combine to impede the right to trial. I would resolve this case differently—focusing on the general, common-sense nature of this foreseeability inquiry—and find that Cavanaugh’s owed Porterfield a duty.
I. The majority’s approach elevates the standard for foreseeability as a part of duty and improperly focuses on the facts of the case, impeding the right to a trial.
The majority raises the bar of the question of foreseeability in the context of duty by requiring contemporaneous evidence of imminent harm. See ante, at 6, 9. Foreseeability in this context “is a general threshold determination that involves an evaluation of (1) the broad type of plaintiff and (2) the broad type of harm.” Rogers v. Martin, 63 N.E.3d 316, 325 (Ind. 2016). We’ve called this determination “a lesser inquiry” than that in the context of proximate cause. Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 390 (Ind. 2016) (citation omitted). Contemporaneous evidence—such as escalating tensions—may inform the lesser, threshold determination of foreseeability, but nothing about this determination requires that evidence. 1 In other words, the presence of contemporaneous evidence can help show that a criminal act was foreseeable, but the absence of that evidence should not be the determining factor to conclude that a criminal act was unforeseeable. Although the majority says it agrees with this point, ante, at 6 n.1, it backs away from the point when it relies on the alleged absence of contemporaneous evidence to find this fistfight unforeseeable, id. at 10–11. More important than the problem with adding the contemporaneousness requirement, though, is the fact that requiring an imminent harm conflicts with the basic inquiry we undertake at this step. Our task is to determine whether a harm is foreseeable. Rogers, 63 N.E.3d at 326; Goodwin, 62 N.E.3d at 388. But the majority’s new requirement that a harm be imminent involves a tougher standard because foreseeable harms are not always imminent. For example, it’s foreseeable that land in a floodplain will flood, but such a flood may not be imminent during a drought. Ultimately, the majority’s new requirements of contemporaneous evidence and imminent harm elevate the bar for foreseeability in the context of duty, making a lesser inquiry into something greater. And while I agree with the majority that businesses should not become insurers of their invitees’ safety, its new requirements take us too far toward the harm at the other end of the spectrum: providing blanket immunity to businesses for foreseeable harms that befall their invitees. See Hamilton v. Steak ‘n Shake Operations, Inc., 92 N.E.3d 1166, 1172 (Ind. Ct. App. 2018) (recognizing the goal of avoiding both ends of the spectrum), trans. denied.
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….By raising the bar for finding a duty, the majority’s opinion will lead to summary judgments in close cases, impeding Hoosiers’ right to a trial. And by focusing on the facts in determining whether a duty exists, the majority takes from the factfinder at trial the ability to consider and weigh facts. In Hughley v. State, we recognized the importance of trial when we said, “Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.” 15 N.E.3d 1000,1004 (Ind. 2014). Today, however, the majority fails to do the same.
II. Based on our general, common-sense foreseeability inquiry, I would find a fight like this one to be foreseeable.
I would conduct a different analysis than the majority and reach the opposite result…
With these instructions in mind, I would find that the broad type of plaintiff here is a bar patron, and the broad type of harm here is injury resulting from a fistfight at the bar’s early morning closing time. While “a shooting inside a neighborhood bar is not foreseeable as a matter of law,” Goodwin, 62 N.E.3d at 394, a closing-time fistfight is. We’ve already recognized the common-sense notion that “bars can often set the stage for rowdy behavior.” Id. at 393. Indeed, the fact that bouncers exist and the commonplace depictions of barfights in popular culture, to name a couple examples, prove the point. Similarly, I believe that most people would agree that the combination of such rowdy behavior, alcohol, and late hour (or early, depending on your perspective) sets the stage for potential disagreements and physical altercations. Said differently, few people would be surprised to learn that a run-of-the-mill fistfight broke out right after a bar closed at 3 a.m. I believe that reasonable people would recognize the unremarkable nature of a fistfight involving bar patrons at the bar’s early morning closing time, and they would take precautions to avoid it. See Rogers, 63 N.E.3d at 325; Goodwin, 62 N.E.3d at 392. Thus, I would hold that Cavanaugh’s owed a duty to protect Porterfield from this foreseeable fight, and I would affirm the trial court’s denial of the summary judgment motion.
Such a holding is more limited than the majority and Cavanaugh’s fear. This holding’s precedential value would be limited to cases involving the same classes of plaintiff and harm identified here; it would not impose a duty on every bar in the state. And after a duty is found here, Porterfield would still have to prove the other elements of negligence—breach and proximate causation of a compensable injury—before Cavanaugh’s could be held liable. See Rogers, 63 N.E.3d at 321; Goodwin, 62 N.E.3d at 386. Proving these elements would not be an easy task. To the contrary, when the facts are no longer viewed in Porterfield’s favor and when Cavanaugh’s presents evidence of its security practices and actions here, a jury could easily find that Cavanaugh’s was not responsible for Porterfield’s injuries. Simply put, allowing this case to proceed falls well short of imposing liability on Cavanaugh’s or any other bar in the state.
For these reasons, I respectfully dissent.
David, J., joins.