Indiana Supreme Court Revisits Landowner Duty and Foreseeability; Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield

Four years ago, the Indiana Supreme Court changed the way that Indiana’s courts addressed the issue of foreseeability when determining whether a landowner owed a duty to an invitee. Indiana’s appellate courts have grappled with this new standard ever since. But it appears that the Supreme Court did not like the path that the Court of Appeals was on and felt the need to issue a correction.

Porterfield and a friend were enjoying a night on the town, which ended at Cavanaugh’s. The two men did not have any disputes with anyone in the bar. At closing time, the bar’s clientele left for the parking lot. A fight ensued, resulting in severe injuries for Porterfield.

Porterfield sued the bar for negligence, and Cavanaugh’s moved for summary judgment, arguing that it owed Porterfield no duty to protect him from an unforeseen criminal act. The trial court denied the bar’s motion, and the Court of Appeals affirmed that decision. The Indiana Supreme Court granted transfer to clarify the law in this area.

The Court began its analysis by reaffirming its 2016 holding that assessing foreseeability in the context of the existence of a duty requires that courts “evaluate the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence.” After looking at its previous decisions on this issue, the Court

acknowledged a key factor is whether the landowners knew or had reason to know about any present and specific circumstances that would cause a reasonable person to recognize the probability or likelihood of imminent harm. If landowners had reason to know of any imminent harm, that harm was, as a matter of law, foreseeable in the duty context.

The Court took pains of say that “concurrent knowledge of imminent harm is a sufficient, not necessary, condition of foreseeability in the duty context.” But where, as in this case, there was no “notice of present and specific circumstances that would cause a reasonable person to recognize the risk of an imminent criminal act,” the crime is not foreseeable enough to impose a duty in the landowner.

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 …, Porterfield does not show that Cavanaugh’s had any reason to believe the fight would occur. …
By pointing to police runs made to the bar during the years 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 probable cause,” should play no role when we evaluate “foreseeability as a component of duty.”

 

Justices Goff and David dissented for two reasons: (1) they felt that the majority added new requirements to the foreseeability inquiry and (2) they felt that the majority incorrectly focused on the particular facts of this case. On the first issue, while the majority claimed that it was not requiring contemporaneous evidence of imminent harm, “it backs away from the point when it relies on the alleged absence of contemporaneous evidence to find this fistfight unforeseeable.” The dissent believes that “foreseeable harms are not always imminent,” and that the law should recognize this reality.

As for their second criticism, the dissent noted the majority’s focus on the lack of tension at the bar, and the characteristics of the people involved in the fight.

Ultimately, the dissent believes that the majority’s test “impedes the right to a jury trial” by forcing “summary judgment in close cases,” rather than leaving the factfinding to the jury.

Lessons:
1. In premises liability law, if an owner had reason to know of any imminent harm, then that harm is foreseeable in the duty context.
2. If the foreseeable harm is a criminal act, then the premises owner is not liable unless he has notice of present and specific circumstances that would cause a reasonable person to recognize the risk of an imminent criminal act.
3. Historical evidence about harm at a location is not relevant to foreseeability as a component of duty.

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