By Codie Ross

In Indiana, retail and hospitality establishment owners are held accountable to their patrons for those injuries that occur to them which were foreseeable and preventable by the business owner.  In a recent decision, the Indiana Supreme Court strengthened the position of business owners who are sued by patrons for occurrences that are likely unforeseeable—noting that a northern Indiana bar did not owe a duty to a man who was blinded after bar fight took place in the bar’s parking lot.

Cavanaugh’s Sports Bar & Eatery, Ltd. V. Eric Porterfield, 20S-CT-88, involved a plaintiff who was left permanently blind after a fight broke out in the bar parking lot, prompting him to sue the eatery for negligence. Cavanaugh’s moved for summary judgment, arguing it owed the plaintiff no duty because the incident was unforeseeable.  The Lake Superior Court denied the motion, and the Indiana Court of Appeals affirmed that denial.  However, the Indiana Supreme Court disagreed in its split decision.

The majority cited a pair of 2016 decisions, noting that “(w)hen evaluating the broad class of plaintiff and broad type of harm in these cases, we 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.”  The Court went on to state, “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 — until now — that landowners cannot foresee these sudden attacks.”

Accordingly, the majority found the bar had no reason to foresee that a patron would blind another patron during a sudden and “without warning” fight in its parking lot. Unlike the cases where courts have found a duty when a landowner knew or should have known about likely looming harm, the majority concluded the plaintiff did not show that the bar had any reason to believe the fight would occur.

Furthermore, the Court found the plaintiff improperly substituted evidence of the bar’s past raucousness for contemporaneous knowledge of imminent harm by pointing to police runs made to the bar during the year before the fight.  The majority wrote, “Because we hold that the criminal attack at issue here was unforeseeable, the duty of [the bar] to protect [the plaintiff] did not extend to this particular scenario.  We reverse and remand with instructions for the trial court to enter summary judgment for [the bar].”

The decision strengthens the position of business owners when patrons allege harm was done to them as a result of sudden acts of violence—even when there have been some prior examples of raucous behavior at the institution in the past.  The standard is that the landowner must recognize the risk of an imminent criminal act that extends to the specific scenario in which the plaintiff is involved.

If you have any questions regarding this decision or its impact on Indiana businesses, please contact any member of our Retail, Hospitality and Entertainment Facilities Practice Group.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.


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