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

This was exactly what occurred in a recent Gary injury lawsuit considered by the Indiana Court of Appeals. The case involved a grocery store injury at the store involving a defective shopping cart.

The appellate court records don’t spell out many details from the original complaint, except that the plaintiff suffered injuries as a result of using a malfunctioning shopping cart at the store. She filed a personal injury lawsuit against the store, alleging they were liable for her injuries on the basis of premises liability.

The claim was filed in August 2013. (The statute of limitations on Indiana personal injury lawsuits is two years, per I.C. 34-11-2-4(1).)

The summons for the complaint was addressed to the “highest executive officer found on site” and was served by the local sheriff’s department at the store, and it was also mailed via certified mail – with return receipt requested – to the site. The sergeant who delivered the summons received the return receipt, although it was noted the signature was illegible.

About six months later, after having received no answer to the complaint, the plaintiff sought entry of a default judgment – which the court granted three months later, with a damages hearing two months after that, awarding $500,000 to the plaintiff for her injuries.

Courts do not generally favor default judgments because the theory is the best outcomes occur when both sides have a chance to adequately represent themselves and present their respective cases. However, appellate courts will usually only reverse a default judgment if there is evidence of some procedural error or a legitimate reason why the person failed to timely answer or appear. The system can’t wait around forever for litigants to participate.

In this case, following the default judgment in favor of the plaintiff, the plaintiff filed a motion to enforce, and it was only after this point that an attorney representing the grocery store appeared in court and filed a motion to set aside the default judgment. He argued the default judgment was void under state trial rules for lack of personal jurisdiction, based on numerous defects in the service of the summons. Furthermore, he alleged the failure to respond was the result of excusable neglect.

The trial court denied the defense motion to set aside the judgment, and the defendant appealed.

The appellate court cited previous case law and noted default judgment is an extreme remedy available only when a party fails to defend or prosecute a case. In general, motions to set aside are reviewed for a trial court’s abuse of discretion.

Proper service of a lawsuit is guaranteed under the 14th Amendment to the U.S. Constitution, which requires constructive notice of the lawsuit be sufficient. That means the serving party must exercise due diligence in locating the litigant’s whereabouts. In this case, the summons was delivered by a sergeant who worked as a process server for six years and served hundreds of subpoenas. The store claimed it never received a summons – either as delivered by the sergeant or by certified mail. The court found the sergeant followed the letter of state trial rules, as evidenced by the copy of the summons with a stamp indicating it had been delivered, as well as the return receipt. Therefore, the appeals court said it couldn’t say the trial court abused its discretion in denying the store’s motion to set aside.

The $500,000 Gary personal injury judgment will stand.

Indiana Injury Attorney Burton A. Padove handles personal injury claims throughout northern Indiana, including Highland, Gary and Hammond. Additional Resources: Menard, Inc. v. Lane, Feb. 1, 2017, Indiana Court of Appeals

More Blog Entries: Indiana Woman Injured in Fall Gets New Shot at Trial, March 2, 2017, Indiana Personal Injury Attorney Blog