Premises liability is predicated on the legal theory that businesses and/ or property owners have a duty of care to shield invited customers or guests from an unreasonable risk of harm. The element of a “duty of care” is the foundation for any lawsuit alleging negligence, as is the breach of duty and the fact that the breach caused the injury. In premises liability cases in particular, foreseeability of danger is what establishes the duty.

The new test model was outlined in a pair of 2016 rulings – Goodwin v. Yeakle’s Sports Bar & Grills, Inc. and Rogers v. Martin. It’s particularly relevant to those cases stemming from a third-party criminal attack on someone else’s property. In both cases, the state high court established that courts must decide as a matter of law (by the judge) rather than as a matter of fact (by the jury) whether the injury in question was foreseeable by analyzing a broad type of harm and a broad type of plaintiff. This differs substantially from the previous approach, which relied on fact-sensitive inquiries. Those two cases have been cited as precedent-setting in a number of recent Indiana premises liability cases.more

This shift is one your Munster injury attorney will need to weigh carefully when formulating trial strategy in premises liability claims.

Prior to the Goodwin and Rogers rulings, courts were instructed to consider the totality of the circumstances to ascertain whether a harm was foreseeable. Defendants fought to have the issue of foreseeability (and thus duty) in summary judgment from the judge, while plaintiffs would argue the court should send those questions to a jury to decide. Plaintiffs argued that determination of whether an act was foreseeable is fact-intensive based on the circumstances of the incident, which would mean summary judgment wouldn’t be appropriate.

Now with this new approach that was established in 2016, an increasing number of defendants are seeking (and being granted) summary judgment in Indiana premises liability lawsuits before the case reaches the trial phase.

In the Goodwin case, the question that arose was whether a bar owed a duty of care to protect one of its customers from a shooting after the plaintiff allegedly made a derogatory comment about the assailant’s wife. The Indiana Supreme Court granted the defense motion for summary judgment, finding there was no duty established when the foreseeability of sudden gun violence at a local bar could not be proven.

In the Rogers case, the court was asked to consider whether the homeowner owed a duty to keep a party guest safe from a physical fight that erupted with a co-host and also whether it was foreseeable that his injuries were made worse after the home owner failed to help him when she discovered him motionless on her basement floor after the confrontation. Although the court found that a brawl is not a foreseeable consequence of a house party, there were questions of fact as to whether the defendant had acted negligently in failing to seek medical help for her injured guest and the exacerbation of his injuries was foreseeable.

Still, there is a great deal of ambiguity in these decisions, and there are a flurry of premises liability cases now making their way through Indiana civil courts that consider these matters. For instance, earlier this year, the Indiana Court of Appeals weighed the case of Hamilton v. Steak ‘n Shake Operations, Inc., wherein plaintiff was the victim of a shooting inside the fast-food restaurant. Defendant sought summary judgment, arguing such an incident wasn’t foreseeable. The appellate court, however, disagreed, noting that staffers were aware of a growing conflict at the site for a full half hour before the shooting occurred.

Some have expressed concern that this new pre-trial test could result in up to 60 percent of duties owed by premises liability defendants, therefore putting additional undue burden on plaintiff to try to weed out some exception that would show the danger was foreseeable. It may further result in fewer cases being settled through negotiation pre-litigation or pre-trial because defendants may want to take their chances at trial, knowing their odds of summary judgment are higher. An experienced injury attorney in Munster can help you weigh your options.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond.

Additional Resources:

Hamilton v. Steak ‘n Shake Operations, Inc., March 7, 2018, Indiana Court of Appeals

More Blog Entries:

Rogers v. Martin – Indiana Supreme Court Weighs Duty of Care for Party Hosts, November 16, 2016, Indiana Personal Injury Attorney Blog

According to court records in the case, the question was whether the trial court erred, even though the evidence tended to show the plaintiff, as a business invitee, knew about the dangerous condition on the floor.

The appellate court justices ruled there remained a genuine issue of material fact as to whether the owner of the property should have anticipated the plaintiff’s harm, despite her knowledge of the danger. Therefore, the trial court’s ruling was reversed and the case remanded for further proceedings.

The incident in question occurred in January 2011. The plaintiff’s husband was a patient at the defendant hospital. She had visited him there numerous times on previous occasions. During these visits, her husband would request from her a drink of water. She would oblige, and when he was finished, he would give the glass back to her, and she would return it to the table from which she had gotten it.

On one occasion, the plaintiff was returning the glass of water back to the table when she tripped over wires that were running along the floor underneath the table. This resulted in a severe injury to the plaintiff.

Later, during a deposition, she was asked whether she had to walk over the wires to get the water. She said she did. Asked whether she stepped over them, the plaintiff replied no, she simply walked over them. She agreed with a defense lawyer that if she had looked down when returning the glass of water, she “probably” would have seen the wires.

Unfortunately, while the plaintiff hired a law firm to represent her in a claim of negligence, the attorney failed to file the Indiana personal injury lawsuit within the relevant statute of limitations. She subsequently filed a complaint for legal malpractice against the law firm. The law firm moved for summary judgment. In granting that request, the trial court noted that to prove causation in a claim of legal malpractice, the plaintiff needed to show that but for the law firm’s negligence, the outcome of the personal injury lawsuit against the hospital would have been more favorable. Therefore, she had to prove the hospital breached its duty to her as a business invitee.

The trial court ruled the plaintiff failed to meet her burden in showing a genuine issue of material fact existed about whether she would have obtained a more favorable outcome. The court noted the legal malpractice claim required her to prove “a case-within-a-case.” The law firm had to show that even if it had filed the claim against the hospital in a timely manner, the plaintiff would have been no better off than in the situation in which its alleged negligence placed her. Thus, if the law firm could show the hospital didn’t breach its duty of care – i.e., the hazard was open and obvious – it wouldn’t have mattered if the lawsuit was timely filed.

The plaintiff needed to show the hospital owed her a duty, it breached the duty, and her injury was proximately caused by that breach. Indiana’s Restatement of Torts holds that landowners are liable for harm to invitees if – and only if – the landowner knew or should have known about the dangerous condition and should have realized it posed an unreasonable risk of harm. Plaintiffs must also show the landowner should have expected invitees would not discover the danger or would fail to protect themselves from that danger, and the landowner failed to exercise reasonable care in protecting invitees.

Here, the plaintiff testified that she had seen the wires and walked over them once, and presumably she would have seen them again had she looked down. Thus, there was no question the plaintiff knew about the hazard. However, the appeals court ruled the trial court never got to the issue of whether the landowner could have and should have anticipated the dangerous condition would cause physical harm to an invitee, notwithstanding its obvious or known danger.

Therefore, the case was remanded back to the trial court for further consideration.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Roumbos v. Vazanellis, Feb. 24, 2017, Indiana Court of Appeals

More Blog Entries: Fair Stage Collapse Not Foreseeable, Indiana Appeals Court Rules, Feb. 16, 2017, Munster Injury Lawyer Blog