Recent changes in Indiana law governing premises liability have created lots of litigation. The central question in many of these cases is whether the type of injury suffered is of the type that a premises owner should have a duty to protect against. In this case, the question is whether it is foreseeable that a fistfight may occur outside of a bar at closing time.
Porterfield and a friend were at Cavanaugh’s at closing one night. Porterfield was sober; his friend was not. As they were leaving, Porterfield’s friend made a comment to a female patron, to which her boyfriend and his friends took umbrage. An altercation ensued, and Porterfield suffered a serious eye injury.
Porterfield sued Cavanaugh’s, that Cavanaugh’s was negligent in failing to take reasonable care for his safety as an invitee/patron. Cavanaugh’s moved for summary judgment, arguing that it had no duty to protect Porterfield. The trial court denied Cavanaugh’s motion, and Cavanaugh’s was allowed to file an interlocutory appeal.
On appeal, the Court reaffirmed the recent Indiana cases which have held that the question of whether an act is foreseeable in the context of a duty depends on a “more general analysis of the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence.” And in one of those cases (Goodwin), the Indiana Supreme Court had held that it was not foreseeable that one patron to a bar would shoot another. But the Court found this case was distinguishable.
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.
Put simply, parking lot fistfights at closing time are generally within the type of “rowdy behavior” that bar owners should contemplate. Their responsibility to protect their patrons at closing time does not “extend only to herding them through the exits at closing time.” Thus, the trial court properly denied the motion for summary judgment.
It is notable that when reaching this conclusion, the Court rejected the idea that the recent precedent “intended so broad a sweep of the pendulum” towards protecting property owners. One can expect plaintiffs to use this concept to ground their claims in long-established precedent. And defendants likewise may be wise to avoid advocating for sweeping changes in this area of the law.
- When determining whether a landowner has a duty to protect an invitee from a criminal attack, a court must look to the nature of the attack.
- It is foreseeable that bar patrons may get into fistfights when leaving a bar at closing time, so a bar has a duty to protect against such fights.
- The Court of Appeals has questioned whether the recent reformulation of the existence of a duty was intended to be a broad change in Indiana law.