Gail Westbrook v. HN Food Plus, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 2, 2020
• Docket: 19A-CT-2407
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 02 2020, 9:27 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Richard J. LaSalvia J. Thomas Vetne South Bend, Indiana Jones Obenchain, LLP South Bend, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gail Westbrook, July 2, 2020 Appellant-Plaintiff, Court of Appeals Case No. 19A-CT-2407 v. Appeal from the St. Joseph Superior Court HN Food Plus, Inc., The Honorable David C. Appellee-Defendant. Chapleau, Judge Trial Court Cause No. 71D06-1705-CT-225

Shepard, Senior Judge.

[1] Gail Westbrook appeals the trial court’s finding that HN Food Plus could not

have foreseen a random attack upon her by a third party and thus did not have

a duty to protect her from such attack. We affirm the trial court.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020 Page 1 of 8 Facts and Procedural History [2] The facts most favorable to Westbrook, the non-movant, follow. In June 2016,

HN Food Plus was doing business in South Bend as a Citgo gas

station/convenience store. Westbrook was riding in a friend’s car when they

pulled into the Citgo lot, behind another car that was blocking further entrance.

Westbrook got out of the car and asked the other driver to move his car

forward. The man told Westbrook she could wait her turn and called her a

“bitch.” Appellant’s App. Vol. 2, p. 24 (Westbrook Depo. p. 50).

[3] Westbrook continued walking to the store entrance. As she was opening the

door, the man came up behind her, grabbed her purse, and punched her several

times in the face with a closed fist. Westbrook’s glasses were broken and she

was knocked to the ground. Westbrook got up and ran toward her friend’s car,

but she reached the attacker’s car first and attempted to get in. Before she could

do so, the man caught up to her and punched her several more times. He then

left in his car, with Westbrook and her friend in pursuit. They were unable to

get the man’s license plate number. Westbrook went back to Citgo and asked

the cashier to call the police.

[4] Citgo had a surveillance system that captured the attack. The parties agree the

video reflects that three minutes and thirteen seconds elapsed between

Westbrook’s arrival at the store and the time her attacker fled. Just 64 seconds

passed between the first set of punches at the door of the store and the time the

man fled.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020 Page 2 of 8 [5] Based on these events, Westbrook sued HN Food Plus alleging negligence in

failing “to provide adequate security or to provide for [her] safety.” Id. at 11

(Complaint ¶ 4). HN Food Plus moved for summary judgment, which Judge

Chapleau granted after a hearing.

Issue [6] The sole issue we decide is whether the trial court erred by entering judgment in

favor of HN Food Plus on Westbrook’s negligence claim.

Discussion and Decision [7] When reviewing the entry of summary judgment, our standard of review is

similar to that of the trial court: whether there exists a genuine issue of material

fact and whether the moving party is entitled to judgment as a matter of law.

City of Indianapolis v. Cox, 20 N.E.3d 201 (Ind. Ct. App. 2014), trans. denied

(2015). Appellate review of a summary judgment motion is limited to those

materials specifically designated to the trial court. Sheehan Const. Co., Inc. v.

Cont’l Cas. Co., 938 N.E.2d 685 (Ind. 2010). All facts and reasonable inferences

drawn from those facts are construed in favor of the non-movant. Id. Further,

the trial court’s grant of summary judgment is clothed with a presumption of

validity, and the party who lost in the trial court has the burden of

demonstrating that granting summary judgment was erroneous. Auto-Owners

Ins. Co. v. Benko, 964 N.E.2d 886 (Ind. Ct. App. 2012), trans. denied.

[8] Westbrook’s negligence claim against HN Food Plus is grounded in premises

liability. To prevail on such a claim, a plaintiff must show: (1) a duty owed by Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020 Page 3 of 8 the defendant to the plaintiff; (2) a breach of that duty; and (3) injury to the

plaintiff resulting from the defendant’s breach. Miller v. Rosehill Hotels, LLC, 45

N.E.3d 15 (Ind. Ct. App. 2015). Absent a duty, there can be no negligence or

liability based upon a breach. Powell v. Stuber, 89 N.E.3d 430 (Ind. Ct. App.

2017), trans. denied (2018). Under Indiana premises liability law, it is well

established that a landowner’s duty to an invitee is one of reasonable care for

the invitee’s protection while the invitee is on the premises. Rogers v. Martin, 63

N.E.3d 316 (Ind. 2016). Whether a duty exists is a question of law for the

courts to decide. Podemski v. Praxair, Inc., 87 N.E.3d 540 (Ind. Ct. App. 2017),

trans. denied (2018).

[9] Recent decisions by our Supreme Court in Goodwin v. Yeakle’s Sports Bar and

Grill, Inc., 62 N.E.3d 384 (Ind. 2016) and Rogers, 63 N.E.3d 316 drive our

decision in this case.

[10] In Goodwin, a patron at a bar became angry when he overheard comments he

believed to be about his wife. He produced a handgun and shot three people.

Those three individuals sued the bar for negligence based on premises liability.

On transfer, the Supreme Court affirmed summary judgment and the

determination that the bar did not owe the patrons a duty to protect them. The

Court recognized foreseeability as a component of the duty element of

negligence and concluded that the assessment of foreseeability in this context is

a determination to be made by the court utilizing an analysis of the “‘broad type

of plaintiff and harm involved, without regard to the facts of the actual

occurrence.’” Id. at 390. The Court reasoned that although bars can be host to

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020 Page 4 of 8 rowdy behavior, bar owners would not routinely contemplate that one patron

might suddenly shoot another. Id. at 393-94. Therefore, the Court declined to

recognize a duty and held that a shooting inside a neighborhood bar is not

foreseeable as a matter of law. Id. at 394.

[11] On the same day it decided Goodwin, the Court decided Rogers. In that case, a

homeowner and her boyfriend co-hosted a party. At the end of the night, the

boyfriend engaged in a fistfight with two guests. Afterward, the homeowner

found one of the guests lying motionless on her basement floor. He died a short

time later. His estate sued the homeowner for negligence. On transfer, the

Court applied the Goodwin foreseeability analysis and determined that the

homeowner did not have a duty to protect the guest from being injured by a co-

host of the party in an unforeseeable fistfight. The Court explained, “Although

house parties can often set the stage for raucous behavior, we do not believe

that hosts of parties routinely physically fight guests whom they have invited.

Ultimately, it is not reasonably foreseeable for a homeowner to expect this

general harm to befall a house-party guest.” Id. at 326.

[12] The Court then addressed a second issue in Rogers: whether the homeowner

had a duty to render aid to the guest when she found him lying unconscious on

her basement floor and could thus be liable for negligence in responding to the

incident. This question the Court answered in the affirmative. The Court

reasoned that “[h]omeowners should reasonably expect that a house-party guest

who is injured on the premises could suffer from an exacerbation of those

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020 Page 5 of 8 injuries” and for that reason, the homeowner owed the guest a duty to protect

him from the exacerbation of an injury that occurred in her home. Id. at 327.

[13] Bearing this framework in mind, we turn to the case at hand. Westbrook hangs

her hat on the second duty discussed in Rogers—she argues that HN Food Plus

“had a duty to intervene to prevent an exacerbation of [her] injury during the

second assault.” Appellant’s Br. p. 8. For its part, HN Food Plus maintains it

owed no duty to protect Westbrook from a sudden assault in its parking lot.

[14] We first note, as we have many times, that a landowner has a duty to take

reasonable precautions to protect invitees from foreseeable criminal attacks.

Rogers, 63 N.E.3d 316. Whether this duty applies to HN Food Plus, as a matter

of law, requires us to evaluate the broad type of plaintiff and harm involved,

without considering the specific facts of the case. Thus, applying the Goodwin

foreseeability analysis, we find the broad type of plaintiff is a gas

station/convenience store patron, and the broad type of harm is a random

attack by a third party. Although random attacks have become more prevalent

in our society, they are not the norm. Therefore, it is not reasonably foreseeable

for a business owner to expect this type of harm to occur to one of its

customers. To find otherwise would be “to impose a blanket duty on

proprietors to afford protection to their patrons” thus requiring proprietors to be

“insurers of their patrons’ safety,” contrary to the public policy of this state.

Goodwin, 62 N.E.3d at 394; see also Cavanaugh’s Sports Bar & Eatery, Ltd. v.

Porterfield, 140 N.E.3d 837 (Ind. 2020) (determining that bar owed no duty to

protect patron from sudden parking lot brawl when no evidence showed that

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020 Page 6 of 8 bar knew fight was impending and reiterating objection to imposing

comprehensive duty on proprietors to afford protection to their patrons from

unpredictable criminal attacks). Accordingly, HN Food Plus had no duty to

protect Westbrook from attack by an unknown third party.

[15] We turn next to whether HN Food Plus owed a duty to Westbrook to protect

her from an exacerbation of her injuries. Westbrook claims the HN Food Plus

clerk saw the first attack and therefore had a duty to call the police or somehow

intervene to protect her from the second assault where her injuries were

exacerbated. Westbrook’s evidence in this regard is her deposition testimony

that, when she approached the door just before the first assault, she looked at

the clerk inside the store, and the clerk “looked at me just a little bit.”

Appellant’s App. Vol. 2, p. 26 (Westbrook Depo. p. 59).

[16] The duty in Rogers rested on the homeowner’s knowledge of an injury caused by

the fight, and that knowledge generated her duty to protect against exacerbation

of the injury. Here, there is no indication that the clerk, who was helping

customers inside the store, actually saw the first attack which occurred outside

the store, much less had knowledge that Westbrook was injured. Moreover, it

is not reasonable that HN Food Plus would foresee that a second attack would

occur seconds later further out in its parking lot, with the whole episode—from

first punch to attacker fleeing—lasting 64 seconds. Thus, with no knowledge of

Westbrook’s injuries, HN Food Plus had no duty to take action to prevent

exacerbation of those injuries. See Rose v. Martin’s Super Markets LLC, 120

N.E.3d 234 (Ind. Ct. App. 2019) (affirming summary judgment for grocery

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020 Page 7 of 8 store and holding store had no duty to take action to prevent exacerbation of

customer’s injuries where store had knowledge of active shooter but had no

knowledge of customer’s injuries inflicted by shooter until it was too late to

offer her assistance), trans. denied.

Conclusion [17] The trial court did not err in granting summary judgment to HN Food Plus.

[18] Affirmed.

Najam, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-2407 | July 2, 2020 Page 8 of 8