IN THE
Court of Appeals of Indiana Vance Tolbert, individually and on behalf of Lucas Tolbert, Appellants-Plaintiffs FILED Jun 19 2024, 9:35 am
CLERK v. Indiana Supreme Court Court of Appeals and Tax Court
Redbones, Inc., Appellee-Defendant
June 19, 2024 Court of Appeals Case No. 23A-CT-1857 Appeal from the Daviess Circuit Court The Honorable Gregory Smith, Judge Trial Court Cause No. 14C01-2105-CT-307
Opinion by Judge Riley Judges Brown and Foley concur.
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 1 of 15 Riley, Judge.
STATEMENT OF THE CASE [1] Appellants-Plaintiffs, Vance Tolbert (Vance), individually and on behalf of
Lucas Tolbert (Tolbert) (collectively, the Tolberts), appeal the trial court’s
partial summary judgment in favor of Appellee-Defendant, Redbones, Inc.
(Redbones).
[2] We affirm.
ISSUE [3] The Tolberts present this court with two issues, which we consolidate and
restate as follows: Whether genuine issues of material fact exist as to whether
Redbones owed Tolbert a duty of care.
FACTS AND PROCEDURAL HISTORY [4] Redbones is an Indiana corporation operating a bar and grill in Montgomery,
Daviess County, Indiana. This case stems from a fight which occurred on
Redbones’ business premises during the early morning of September 27, 2020,
between Tolbert and Tyler Ross (Ross). Prior to coming to Redbones, Tolbert
had attended a wedding and a reception where alcohol had been served. After
the reception, Tolbert was driven to Redbones by a friend. Tolbert was visibly
and obviously intoxicated when he arrived at Redbones. Angela Graber
(Graber) was the only Redbones employee working that night at the bar.
Graber is a licensed bartender who had worked for Redbones for over twenty
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 2 of 15 years. Graber informed Tolbert that he would not be served any alcohol and
that he should get a ride home. Tolbert assured Graber that he was fine, but he
was seen with his head on the bar by other patrons. A number of people from
the wedding party arrived, and the socializing continued.
[5] Ross had been at Redbones earlier in the evening, left to attend a party, but
returned to Redbones. Ross and Tolbert were at Redbones at the same time for
thirty minutes to an hour without any interaction or hostility. Neither was
acting aggressively toward other bar patrons. At the time of the fight, there
were around eight patrons left in the bar, as most of the wedding party had left
or were waiting outside for a party bus to pick them up. Music was playing in
the bar, and Ross and others were watching a professional basketball game on
the television. Ross and Tolbert were seated apart from each other at
Redbones’ horseshoe shaped bar, with other patrons and empty chairs between
them. Ross made a comment about an announcement that appeared on the
television for a social justice movement, which prompted Tolbert to lift his head
from the bar and pronounce his support for the movement. The two men had a
back-and-forth about this topic for approximately a minute and a half and then
continued talking with raised voices for approximately another minute and a
half, after which Tolbert got up from his barstool and approached Ross. The
men exchanged up to five shoves, although the record is unclear who shoved
first. Ross then punched Tolbert once. Tolbert was subsequently taken to the
hospital and treated for grave injuries to his head.
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 3 of 15 [6] On May 12, 2021, the Tolberts filed their Complaint sounding in an intentional
tort claim as to Ross and premises liability claims as to Redbones. 1 The
Tolberts alleged that Redbones had a duty to use ordinary care and diligence to
keep and maintain its premises secure and reasonably safe for its patrons and,
more specifically, that Redbones had a duty to exercise reasonable care to
protect its patrons from the danger of reasonably foreseeable injury occurring
from reasonably foreseeable acts of violence by its other patrons. On February
1, 2023, the Tolberts amended their Complaint to add a claim under the
Indiana Dram Shop Act. That same day, the trial court granted the Tolberts’
motion to dismiss Ross as a defendant, with the caveat that Redbones would be
allowed to name him as a non-party defendant.
[7] On February 24, 2023, the Tolberts filed their motion for partial summary
judgment, along with their memorandum and designation of evidence in
support, on the issue of whether Redbones owed Tolbert a duty of care to
protect him from Ross’ punch. In support of their motion, the Tolberts
designated evidence that Graber knew that Tolbert was intoxicated, that she
knew that customers could become aggressive when they consume alcohol, and
that she knew that you have to “keep an eye on” severely intoxicated patrons.
(Appellants’ App. Vol. II, p. 176). The Tolberts also designated the deposition
1 [1] On September 29, 2020, the State filed an Information, charging Ross with battery resulting in serious bodily injury. While the instant suit was ongoing, Ross was tried and acquitted.
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 4 of 15 testimony of Morganne Doyle (Doyle), who was seated next to Ross, that she
had heard Ross and Tolbert yelling and had turned to her husband to tell him
that she thought there was going to be a fight. The Tolberts also designated the
interrogatory response of Redbones’ owner Cindy Wilcher (Wilcher) that
[f]rom my discussions with [Graber], the incident occurred when Tolbert and Ross exchanged words while both were at the bar. Ross was seated at the bar. Tolbert walked over to where Ross was seated[,] and they continued to exchange words. Ross got up[,] and after shoves were exchanged, Ross hit Tolbert with one punch and fell Tolbert [sic].
(Appellants’ App. Vol. II, p. 131) (first names removed). In addition, Wilcher
provided the following deposition testimony:
Answer: They were exchanging words seated apart, and they continued to exchange words when [Tolbert] went over to where [Ross] was.
Question: But if [] Graber is hearing this, it’s obviously loud enough for her to hear it, right?
Answer: I’m assuming so, yes. She would be about three feet away from them.
(Appellants’ App. Vol. II, p. 84).
[8] After being granted several extensions of time, on June 14, 2023, Redbones
filed its cross-motion for partial summary judgment and response to the
Tolberts’ motion for partial summary judgment, together with a memorandum
and designation of evidence in support, arguing, as to the premises liability
claims only, that it owed no duty to Tolbert to protect him from the
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 5 of 15 unforeseeable act of Ross’ punch. In support of its motion, Redbones
designated the following evidence. Graber was behind the bar but had not been
watching Tolbert the whole time he was in the bar. Graber did not “know what
led up to [Ross’] punch.” (Appellants’ App. Vol. III, p. 66). Graber saw
Tolbert get up from his barstool but thought that he was leaving to catch a ride
home on the party bus with the rest of the wedding party. Graber turned away
to do something and then turned back around in time to see Ross punching
Tolbert. On July 17, 2023, the Tolberts filed their response to Redbones’ cross-
motion.
[9] On August 2, 2023, the trial court entered its Order, denying the Tolberts’
motion for partial summary judgment and granting Redbones’ motion for
partial summary judgment. The trial court did not enter any specific findings of
fact or conclusions thereon in support of its Order. The trial court entered final
judgment on the Tolberts’ premises liability claims pursuant to Indiana Trial
Rule 54(B).
[10] The Tolberts now appeal. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[11] An appellate court reviews summary judgment using the same standard as the
trial court: summary judgment is appropriate only when the designated
evidence “shows that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 6 of 15 56(C); Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The moving party
bears the initial burden of establishing that it is entitled to summary judgment.
Pfenning v. Lineman, 947 N.E.2d 392, 396-97 (Ind. 2011). Once the moving
party meets this burden, the non-moving party must set forth specific facts
demonstrating a genuine issue for trial. Id. at 397. The reviewing court is
required to construe the evidence in favor of the non-movant and to resolve all
doubts against the moving party. Id. Here, the parties submitted cross-motions
for summary judgment. Cross-motions for summary judgment do not affect
our standard of review, and we simply construe the facts most favorably to the
non-moving party in each instance. Alexander v. Linkmeyer Dev. II, LLC, 119
N.E.3d 603, 612 (Ind. Ct. App. 2019). Whether one party owes another a duty
for purposes of establishing a negligence claim is generally a question of law to
be determined by the trial court. Reece v. Tyson Fresh Meats, Inc., 173 N.E.3d
1031, 1033 (Ind. 2021). We review this legal question de novo, without
deference to the trial court’s decision. Ryan v. TCI
Architects/Engineers/Contractors, Inc., 72 N.E.3d 908, 912-13 (Ind. 2017).
II. Existence of a Duty of Care
[12] In order for a plaintiff to recover damages based on negligence, the plaintiff
must establish: “(1) a duty owed by the defendant to the plaintiff; (2) breach of
that duty; and (3) injury to the plaintiff resulting from the defendant’s breach.”
Wiley v. ESG Sec. Inc., 187 N.E.3d 267, 272 (Ind. Ct. App. 2022), trans. denied.
In the absence of any duty, no negligence or liability can be based upon the
alleged breach. Id. The parties do not dispute that Tolbert was a business
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 7 of 15 invitee of Redbones. Indiana courts have repeatedly stated that a landowner
“must exercise reasonable care for the invitee’s protection while the invitee is
on the premises” and that this duty includes taking “reasonable precautions to
protect invitees from foreseeable criminal attacks.” Rogers v. Martin, 63 N.E.3d
316, 320, 326 (Ind. 2016). Foreseeability is the “critical inquiry” in determining
whether this duty extends to the facts of a particular scenario. Id. at 323.
[13] In addressing the issue of whether a particular act was foreseeable, triggering a
duty of a landowner to an invitee, the court undertakes a “general analysis of
the broad type of plaintiff and harm involved” without regard to the facts of the
actual occurrence and assesses “whether there is some probability or likelihood
of harm that is serious enough to induce a reasonable person to take
precautions to avoid it.” Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d
384, 391-92 (Ind. 2016). The court considers the general class of persons to
which the plaintiff belonged and “whether the harm suffered was of a kind
normally expected.” Rogers, 63 N.E.3d at 325. Our supreme court has clarified
that, in evaluating the broad classes of plaintiff and type of harm for purposes of
a Goodwin/Rogers analysis, “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.” Cavanaugh’s Sports Bar & Eatery, Ltd. v. Porterfield, 140 N.E.3d
837, 840 (Ind. 2020); see also Singh v. Singh, 155 N.E.3d 1197, 1208 (Ind. Ct.
App. 2020) (acknowledging that in applying the Goodwin/Rogers framework,
“an examination of particular facts is necessary to fully resolve the question of
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 8 of 15 duty at this stage and to properly apply Cavanaugh’s required ‘foreseeability as a
component of duty’ analysis”). “If landowners had reason to know of any
imminent harm, that harm was, as a matter of law foreseeable in the duty
context.” Cavanaugh’s, 140 N.E.3d at 841. Courts applying the Goodwin/Rogers
framework have found that a duty exists “only when landowners had this
contemporaneous knowledge.” Id. Requiring that criminal acts are foreseeable
reflects the fact that a landowner’s duty to protect an invitee is not without
limit, as some harms are so unforeseeable that a landowner does not have a
duty to protect invitees against them. Rogers, 63 N.E.3d at 324. Our supreme
court has recognized that “courts must have a gatekeeping function available to
them so that landowners do not become ‘the insurers of their invitees’ safety.’”
Id. (quoting Delta Tau Delta v. Johnson, 712 N.E.2d 968, 971 (Ind. 1999)).
[14] In Cavanaugh’s, Porterfield and a friend were out on the town and stopped at
Cavanaugh’s, a bar which was crowded but calm when they arrived. Id. at 838.
The two stayed for several hours, speaking with the bartenders and having no
disputes with anyone in the bar before closing time at 3:00 a.m. Id. As
Porterfield and his friend exited the bar into the parking lot along with the other
customers, a fight broke out. Id. Porterfield was injured in the fight and was
rendered permanently blind. Id. Porterfield sued the bar for negligence, and
the bar moved for summary judgment, arguing that it was not responsible for
the unforeseeable criminal acts of third parties. Id. at 839. The trial court
denied the bar summary judgment, and, on appeal, this court upheld that
ruling. Id. On transfer, after undertaking an examination of cases issued since
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 9 of 15 the Goodwin/Rogers decisions, the Cavanaugh’s court reversed, holding that
“Cavanaugh’s had no reason to foresee a bar patron blinding another during a
sudden parking lot fight” and that Porterfield had not shown that the bar “knew
or should have known about likely looming harm[.]” Id. at 843. The court
observed that the fight had occurred suddenly and without warning, where
Porterfield and his friend had been in the bar without incident for hours and
had shown no animosity towards any other customers. Id. The court
contrasted these facts with those of Hamilton v. Steak ‘n Shake Operations, Inc., 92
N.E.3d 1166, 1173 (Ind. Ct. App. 2018), trans. denied, wherein this court found
that a landowner had a duty because a fight preceded by an escalating thirty-
minute encounter between two specific factions that was witnessed by
employees was foreseeable, and with Certa v. Steak ‘n Shake Operations, Inc., 102
N.E.3d 336, 340-41 (Ind. Ct. App. 2018), trans. denied, wherein we held that a
fight was foreseeable when the landowner knew that patrons had a verbal
altercation and was aware of the potential for the escalation of the conflict. Id.
at 843-44. The Cavanaugh’s court also found that the bar had no reason to think
that their customers that evening “were particularly suited to committing the
specific criminal acts they perpetrated[,]” contrasting Porterfield’s case with that
of Buddy & Pals III, Inc. v. Falaschetti, 118 N.E.3d 38, 42-43 (Ind. Ct. App. 2019),
trans. denied, wherein this court found a fight was foreseeable where the
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 10 of 15 landowner/bar knew that a patron who had been removed from the bar was
unaccepting of that fact and was in a fighting mood. Id. at 844. 2
[15] We likewise conclude that Redbones did not owe Tolbert a duty to protect him
from Ross’ punch which was unforeseeable. The general class of plaintiffs to
which Tolbert belonged is a bar patron, and the general harm he suffered was
serious head injuries. Although a bar can be the site of rowdy behavior, we do
not believe that bar owners routinely contemplate that their patrons will punch
each other, causing serious head injuries. While it may happen at times, it is
not the norm. That being established, we conclude that the Tolberts did not
designate evidence that Redbones “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” sufficient to find that
a duty existed. Id. at 840. While Graber was behind the bar of this relatively
small establishment at the time of the fight, there was no designated evidence
that Graber was listening to the yelling between Tolbert and Ross or that she
saw the shoving that preceded Ross’ punch. One witness characterized the bar
as “loud”, a fact that the Tolberts do not refute with any designated evidence.
(Appellants’ App. Vol. II, p.98). As in Cavanaugh’s, prior to the fight, the
2 On January 9, 2024, after the Tolberts filed their appellants’ brief but before Redbones filed its appellee’s brief and the Tolberts filed their reply, our supreme court issued Pennington v. Memorial Hospital of South Bend, Inc., 223 N.E.3d 1086, 1097 (Ind. 2024), in which it discussed the test for duty applicable to cases such as this one stemming from activities on a landowner’s premises unrelated to the premises’ condition. The Pennington court restated the Goodwin/Rogers test wherein a court evaluates the broad types of plaintiff and harm. Id. The court emphasized that this was to be done without addressing the specific facts of the occurrence. Id. The Pennington court did not address Cavanaugh’s. Id.
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 11 of 15 combatants here were together for a significant period of time inside the
defendant’s establishment without incident, as Ross and Tolbert were in
Redbones for thirty minutes to an hour without any tensions between
themselves or other patrons. Id. at 843. No threats were exchanged between
the two men prior to the punch. While estimates varied among the various
other patrons who were there that night, the estimate most favorable to the
Tolberts was that the entire incident from Ross’ first comment to the punch
took less than five minutes, a significantly shorter period than the thirty-minute
escalating conflict which contributed to our conclusion in Hamilton that the
fight in that case was foreseeable. Hamilton, 92 N.E.3d at 1173-74. In addition,
this was not a scenario wherein Graber had any notice that either Ross or
Tolbert was particularly “suited” for fighting or were in a fighting mood that
evening. See Cavanaugh’s, 140 N.E.3d at 844 (distinguishing Buddy & Pals III,
Inc.).
[16] The Tolberts insist that we must infer that Redbones knew or had reason to
know of the imminent threat of a fight from evidence that Graber knew Tolbert
was intoxicated, knew that customers can become aggressive when consuming
alcohol, and knew she should keep an eye on extremely intoxicated patrons.
However, none of this evidence supports a finding of knowledge of “present
and specific” circumstances that would cause a reasonable person to recognize
the likelihood of “imminent harm”. Id. at 840. In addition, the Tolberts do not
support with any legal authority their contention that the fact that Doyle might
have been aware of facts that led her to conclude that there would be a fight is
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 12 of 15 sufficient for us to conclude that Graber knew or should have known that a fight
was imminent, and we are aware of none. Neither can we credit the Tolberts’
argument that Wilcher’s discovery responses support the existence of the
requisite knowledge here. Her assumption that Graber must have heard the
verbal interaction between Ross and Tolbert is just that–an assumption. There
is no designated evidence that Graber told Wilcher that she had heard the
verbal exchanges, that Graber was actually three feet away from the men when
the verbal back-and-forth occurred, or that the physical layout of the bar
precluded Graber from being more than three feet away from all the customers
seated at the bar. We also disagree with the Tolberts that we must construe the
description of the events that Wilcher included in her interrogatory responses as
establishing that Graber had personally witnessed all of those events, simply
because Graber had recited the events to Wilcher. Our standard of review
requires us to construe all evidence in favor of the Tolberts. See Pfenning, 947
N.E.2d at 397. However, construing evidence in favor of the non-moving party
does not mean creating facts where none exist. Wilcher did not testify that
Graber told her that she witnessed all of the events preceding Ross’ punch.
Absent any evidence that Graber actually witnessed the events she described to
Wilcher, we cannot construe the facts in the manner the Tolberts propose.
[17] The Tolberts also argue that the law is unclear “whether a proprietor’s
contention that it was only aware of the circumstances giving rise to a
likelihood of imminent harm for a short duration speaks to the element of duty
and constitutes a question of law for the court or speaks to the element of
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 13 of 15 breach and constitutes a question of fact for the jury[.]” (Appellants’ Br. p. 23).
The Tolberts contend that the duration of a landowner’s knowledge of
imminent danger is relevant only to the issue of breach. However, our review is
de novo, and we have concluded that no evidence was designated supporting
the requisite knowledge by Redbones for even a short duration. Therefore, we
do not address this argument other than to observe that in Hamilton we relied in
part upon the fact that the escalating tensions between two groups in the
restaurant were observed by the defendant’s employees for thirty minutes in
concluding that the defendant owed a duty of care to the plaintiff. Hamilton, 92
N.E.3d at 1173. Accordingly, we do not disturb the trial court’s summary
judgments.
CONCLUSION [18] Based on the foregoing, we hold that no genuine issues of material fact exist as
to whether Redbones owed Tolbert a duty of care to support its premises
liability claims.
[19] Affirmed.
Brown, J. and Foley, J. concur
ATTORNEY FOR APPELLANTS Gabriel A. Hawkins Cohen & Malad, LLP Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 14 of 15 Crystal G. Rowe R. Jeffrey Lowe Kightlinger & Gray, LLP New Albany, Indiana
Court of Appeals of Indiana | Opinion 23A-CT-1857 | June 19, 2024 Page 15 of 15