Attorneys for Appellant Attorneys For Appellee
Thomas A. Carton George T. Patton, Jr.
Bullaro & Carton, Chtd. Carrie L. Wagner
Munster, Indiana Bose McKinney & Evans, LLP
James R. Branit
Bullaro & Carton, Chtd. Barry D. Sherman
Chicago, Illinois Kristen D. Hill
Barry D. Sherman & Assoc.
Appeal from the Lake Superior Court, No. 45D01-9805-CT-396
The Honorable Jeffrey J. Dywan, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 45A03-0106-CV-212
December 9, 2003
In its appeal, the Pub claims reversible error resulted from the denial of
its motion for judgment on the evidence, from the denial of its motion
to correct errors, and from the allegedly improper closing argument of plaintiff's counsel.
The applicable appellate standard for review is well-established:
It is axiomatic that in reviewing the trial court's ruling on a motion for judgment on the evidence the reviewing court must consider only the evidence and reasonable inferences most favorable to the nonmoving party. Judgment on the evidence in favor of the defendant is proper when there is an absence of evidence or reasonable inferences in favor of the plaintiff upon an issue in question. The evidence must support without conflict only one inference which is in favor of defendant. If there is any probative evidence or reasonable inference to be drawn from the evidence or if there is evidence allowing reasonable people to differ as to the result, judgment on the evidence is improper.
Sipes v. Osmose Wood Preserving Co., 546 N.E.2d 1223, 1224 (Ind. 1989) (quoting Jones v. Gleim, 468 N.E.2d 205, 206-07 (Ind. 1984)); see also Northern Indiana Public Service v. Sharp, 790 N.E.2d 462, 467 (Ind. 2003); Kirchoff v. Selby, 703 N.E.2d 644, 648 (Ind. 1998); Benante v. United Pacific Life Ins. Co., 659 N.E.2d 545, 547 (Ind. 1995); and Clark v. Wiegand, 617 N.E.2d 916, 918 (Ind.1993).
The Pub first contends that Bartolini has failed to demonstrate that it owed
him a duty because he did not present any evidence that Paragon had
knowledge of any violent tendencies of Bartolini's assailants. It urges that serving
an underage customer, or serving a customer beyond the point of intoxication, is
not enough to make the customer's commission of a criminal battery foreseeable.
Bartolini had been a customer of the Pub on the Friday night of
the incident, arriving about 11:00 p.m. Approximately 1:00 a.m., Jeffrey Todd and
John Mattull arrived at the Pub. Mattull was twenty-one but Todd was
under twenty-one years of age, and the Pub did not check for identification.
The Pub served beer to both Todd and Mattull. Todd
had frequented the Pub on ten or fifteen prior occasions and his identification
had never been checked. While in the Pub, Todd and Mattull appeared
loud and obnoxious to at least one other patron, yelling several times.
Todd testified that he and Bartolini "had words" in the Pub, and there
may have been "high anxiety" between them. App. of Appellant at 100.
At closing time, about 3:30 a.m., Bartolini left the bar with his
female friend, and was walking her to her car in the Pub's parking
lot. As Todd and Mattull left the Pub, one of them punched
and knocked over a stop sign that was mounted in a tire or
bucket of cement, and then Todd threw a bottle in the air which
burst on the concrete. When Todd and Mattull got to the parking
lot, they began taunting Bartolini. A waitress advised the Pub's bartender and
night manager of the disturbance in the parking lot. The ensuing verbal
altercation between Todd and Bartolini became physical. Employees of the Pub, including
the bouncer, stood by for five or six minutes without doing anything as
the argument escalated in the parking lot. The bantering included Todd's threat
to Bartolini: "Look, buddy, we're going to get you. We're going to
kill you, and if it ain't tonight or tomorrow, but we're going to
kill you." App. of Appellant at 342. Eventually, Mattull lunged at
Bartolini who fell to the ground, striking his head, and Todd and Mattull
then both continued to viciously attack Bartolini. The bouncer eventually was able
to pull Mattull away from Bartolini, but Todd continued kicking and hitting him.
Bartolini suffered serious injuries.
Landowners have a duty to take reasonable precautions to protect their invitees from
foreseeable criminal attacks.
Delta Tau Delta v. Johnson, 712 N.E.2d 968, 973
(Ind. 1999). In addition, we have observed that the duty of a
business to exercise reasonable care extends to keeping its parking lot safe and
providing a safe and suitable means of ingress and egress. Vernon v.
Kroger Co., 712 N.E.2d 976, 979 (Ind. 1999). We have further recognized
that an individualized judicial determination of whether a duty exists in a particular
case is not necessary where such a duty is well-settled. Northern Indiana
Public Service v. Sharp, 790 N.E.2d 462, 465 (Ind. 2003). Thus, there
is usually no need to redetermine what duty a business owner owes to
its invitees because the law clearly recognizes that "[p]roprietors owe a duty to
their business invitees to use reasonable care to protect them from injury caused
by other patrons and guests on their premises, including providing adequate staff to
police and control disorderly conduct." Id., quoting Muex v. Hindel Bowling Lanes,
Inc., 569 N.E.2d 263, 266 (Ind. Ct. App. 1992). This duty only
extends to harm from the conduct of third persons that, under the facts
of a particular case, is reasonably foreseeable to the proprietor. Muex, 596
N.E.2d at 267.
In three cases handed down together four years ago, this Court held that
the determination of whether a landowner owed an invitee a duty to take
reasonable care to protect the invitee against a third party criminal attack requires
consideration of the totality of the circumstances to determine whether the criminal act
was reasonably foreseeable.
L.W. v. Western Golf Ass'n, 712 N.E.2d 983, 984-985
(Ind. 1999); Vernon, 712 N.E.2d at 979; Delta Tau Delta, 712 N.E.2d at
973. This analysis includes looking to "all of the circumstances surrounding an
event, including the nature, condition, and location of the land, as well as
prior similar incidents." Western Golf, 712 N.E.2d at 985 (holding incidents of
isolated childish pranks and actions in college co-ed living facility, absent evidence of
prior violent acts or sexual assaults, do not make rape foreseeable); Vernon, 712
N.E.2d at 980 (holding frequent shoplifting and physical confrontations with escaping shoplifters, plus
frequent police runs to premises, shows reasonable foreseeability that a shopper might be
injured by crime); and Delta Tau Delta, 712 N.E.2d at 974 (holding that
prior instance and information regarding sexual assaults at fraternity house demonstrated reasonable foreseeability
of a sexual assault). While the number, nature, and location of prior
similar incidents are substantial factors, "the lack of prior similar incidents will not
preclude a claim where the landowner knew or should have known that the
criminal act was foreseeable." Id. at 973. We emphasized that "when
the landowner is in a position to take reasonable precautions to protect his
guest from a foreseeable criminal act, courts should not hesitate to hold that
a duty exists." Id. at 974.
Upon the question of whether an individualized redetermination of duty is necessary where
the general duty is otherwise well-settled, there is thus a procedural inconsistency between
Sharp and the trilogy of Western Golf, Vernon, and Delta Tau Delta.
There is no doubt, however, that reasonable foreseeability is an element of a
landowner or business proprietor's duty of reasonable care. The issue is merely
at what point and in what manner to evaluate the evidence regarding foreseeability.
We believe that Sharp provides the better answer. Where, as in
this case, the alleged duty is well-established, there is no need for a
new judicial redetermination of duty. The court's function was merely to adequately
inform the jury of the applicable duty, and the jury was then to
determine whether the Pub breached this duty of reasonable care to protect its
invitees from foreseeable criminal attacks. In ruling upon a motion for judgment
on the evidence asserting the absence of a well-settled duty, a trial court
need only make a general determination as to whether such duty is generally
applicable to the nature of the case presented by the evidence. In
the present case, the well-settled duty was sufficiently established merely by evidence that
Bartolini, a customer of the Pub, was beaten in the Pub parking lot
as he was leaving. Upon receiving instructions as to the general nature
of the Pub's duty,
the jury was then able to evaluate whether Bartolini's
injuries resulted from a criminal attack that was reasonably foreseeable to the Pub
and for which it failed to exercise reasonable care.
The parties' disagreement regarding various items of evidence related to the specific events
and conduct of the Pub's employees on the night of the incident is
therefore irrelevant to the trial court's denial of the Pub's motion for judgment
on the evidence. Urging that there is sufficient evidence to support the
trial court's determination of duty, Bartolini points to evidence that Todd and Matull
were rowdy in the bar, that the Pub admitted and served underage drinkers,
that Todd and Matull had exhibited violence at the stop sign as they
left the bar in the presence of the bouncer, and that the bar
manager and bouncer stood around for five or six minutes while the assailants
engaged in an escalating argument with Bartolini. The Pub disputes each of
these evidentiary claims, primarily emphasizing that Bartolini should not be able to use
facts that arose long after the time when the Pub permitted his underage
assailants to enter the bar. The Pub argues that the violence
toward the stop sign does not suggest that the assailants would savagely beat
a human being, and that its bouncer did not idly stand by but
actively restrained one of the assailants and did everything possible to prevent the
beating. These items of disputed evidence were matters for the jury to
evaluate in determining whether the Pub breached its duty to exercise reasonable care
to protect Bartolini from reasonably foreseeable intentional acts of other persons on its
We therefore decline to find error in the denial of the Pub's motion
for judgment on the evidence with respect to the issue of duty.
The Pub also argues that the trial court should have granted its motion
for judgment on the evidence because Bartolini's evidence failed to establish the element
of proximate cause. In particular, the Pub argues that at the time
of the Pub's negligence in permitting Todd to enter, it was not reasonably
foreseeable that Todd would commit criminal battery on Bartolini, and that the criminal
attack on Bartolini was an intervening superceding cause of his injuries.
Bartolini responds that the evidence indicated that the Pub was known as a
place that underage drinkers could enter and be served; that the owner and
manager knew that younger drinkers were more inclined to be rowdy and out
of control; that if the Pub had turned Todd away, he and Matull
would have left the Pub and gone elsewhere; that Todd had been loud
and obnoxious in the bar that evening; that upon leaving the Pub he
violently punched a stop sign, smashed a bottle, and then made threats against
Bartolini in the parking lot; and that the Pub's night manager and bouncer
stood by for several minutes as the verbal altercation escalated into the violent
beating of Bartolini.
A negligent act is said to be the proximate cause of an injury "if the injury is a natural and probable consequence, which in the light of the circumstances, should have been foreseen or anticipated." Bader v. Johnson, 732 N.E.2d 1212, 1218 (Ind. 2000). At a minimum, proximate cause requires that the injury would not have occurred but for the defendant's conduct. Id. "[L]iability may not be imposed on an original negligent actor who sets into motion a chain of events if the ultimate injury was not reasonably foreseeable as the natural and probable consequence of the act or omission." Control Techniques, Inc. v Johnson, 762 N.E.2d 104, 108 (Ind. 2002).
The doctrine of superseding or intervening causation provides that when a negligent act
or omission is followed by a subsequent negligent act or omission so remote
in time that it breaks the chain of causation, the original wrongdoer is
relieved of liability.
Control Techniques, 762 N.E.2d at 107. A subsequent
act is "superseding" when the harm resulting from the original negligent act "could
not have been reasonably foreseen by the original negligent actor." Id. (quoting
Vernon, 712 N.E.2d at 981; Hooks SuperX, Inc. v. McLaughlin, 642 N.E.2d 514,
520 (Ind. 1994)). "Whether the resulting harm is 'foreseeable' such that liability
may be imposed on the original wrongdoer is a question of fact for
a jury." Control Techniques, 762 N.E.2d at 107.
The foreseeability requirement for proximate cause imposes the same limitations on liability as
does the superseding cause doctrine.
Id. at 108. The doctrine "adds
nothing to the requirement of foreseeability that is not already inherent in the
requirement of causation." Id. The essence of the Pub's claim that
Bartolini failed to prove proximate cause is its assertion of insufficient evidence of
foreseeability, which is the same factor that determines his claim of intervening cause.
To resolve the Pub's appellate claim that the trial court should have granted
its motion asserting lack of evidence of proximate cause, we consider only the
evidence and reasonable inferences most favorable to Bartolini, the nonmoving party. As
previously noted, the Pub is not entitled to prevail on its motion for
judgment on the evidence if there is any probative evidence or reasonable inferences
allowing reasonable people to differ as to the result. The trial evidence
was conflicting and such that reasonable fact-finders could differ as to whether the
Pub knew or should have known that the criminal acts that injured Bartolini
were foreseeable. We conclude that there exists probative evidence or reasonable inferences
to establish that Bartolini's injuries were reasonably foreseeable as the natural and probable
consequence of the Pub's admitting and serving Todd, who was underage, and of
its failing to act to prevent or interrupt the aggressive conduct of Todd
and Mattull and their eventual attack upon Bartolini in the Pub's parking lot.
The trial court did not err in denying the Pub's request for
judgment on the evidence asserting failure to show proximate cause.
Motion to Correct Error
Pursuant to Indiana Trial Rule 59(J), a trial court is required to take
such action as will cure any "prejudicial or harmful error," to grant a
new trial on a motion to correct error if the court determines that
the jury verdict is "against the weight of the evidence," and to enter
judgment if it determines that the jury verdict is "clearly erroneous as contrary
to or not supported by the evidence." Ind. Trial Rule 59(J).
The standard of appellate review of trial court rulings on motions to correct
error is abuse of discretion.
Sanchez v. State, 675 N.E.2d 306, 310
The Pub first contends that it is entitled to a new trial because
the jury's liability determination was contrary to the weight of the evidence.
It argues that there "was no evidence to suggest that Todd's and Mattull's
criminally willful and malicious aggravated battery would be the natural, probable and foreseeable
result of any act or omission by [the Pub]." Br. of Appellant
at 31. While Trial Rule 57(J) permits the trial judge to weigh
conflicting evidence, it "is not intended to invite the trial judge to cavalierly
substitute his evaluation of the evidence in place of a contrary evaluation made
by the jury."
Ingersoll-Rand Corp. v. Scott, 557 N.E.2d 679, 684 (Ind.
Ct. App. 1990). When, as in this case, the trial court
declines to intervene and refuses to set aside the jury verdict, it is
not the province of an appellate court to do so "unless the verdict
is wholly unwarranted under the law and the evidence." Indian Trucking v.
Harber, 752 N.E.2d 168, 179 (Ind. Ct. App. 2001). Having discussed the
conflicting evidence supra, we do not find the jury verdict to be wholly
unwarranted. The trial court did not abuse its discretion in refusing to
find that the jury's liability determination was contrary to the weight of the
The Pub also asserts that it is entitled to a new trial because
"the jury's allocation of fault is against the weight of the evidence."
Br. of Appellant at 34. It argues that the verdict finding the
Pub to be 80% at fault and Bartolini's attackers, Todd and Mattull, to
each be 10% at fault "shocks the conscience and cannot stand," Br. of
Appellant at 31, and that it has "no possible justification." Br. of
Appellant at 32.
Bartolini responds in part that, where a claim is based on the breach
of a business owner's duty to protect its customers from the reasonably foreseeable
criminal acts of others, this duty of care and its corollary remedy would
be negated if as a matter of law greater fault must always be
allocated to the criminal perpetrators.
Under the Indiana Comparative Fault Act, the jury considers "the fault of all
persons who caused or contributed to cause the alleged injury." Ind. Code
§ 34-51-2-7(b). The Act declares that the "requirements of causal relation" apply
to the determination of fault. I.C. § 34-51-2-3. This Court recently
observed that when a jury finds that the conduct of a second actor
was a superseding cause foreclosing the first actor as a proximate cause of
the claimed injury, "[t]his is simply another way of saying, in comparative fault
terms, that the original actor did not cause the harm and receives zero
share of any liability."
Control Techniques, 762 N.E.2d at 109. Under
this view, a jury's assessment of proportional fault includes consideration of the relative
degree of causation attributable among the responsible actors. The process by which
a jury analyzes the evidence, reconciles the views of its members, and reaches
a unanimous decision is inherently subjective and is entitled to maximum deference.
The Comparative Fault Act entrusts the allocation of fault to the sound judgment
of the fact-finder.
While the trial court could well have decided otherwise under the evidence and
ordered a new trial in this case,
see, e.g., Barnard v. Himes, 719
N.E.2d 862, 866 (Ind. Ct. App. 1999), here it exercised its discretionary power
in favor of letting the jury allocation stand. We acknowledge that the
jury and the trial court in this case may have chosen to allocate
a greater proportion of fault to the Pub than to the assailants because
the opportunity for the beating would not even have existed had the Pub
not failed to restrict Todd from entering its bar or had it taken
appropriate action to prevent or stop the attack on its parking lot.
In other words, the weight given to the causative role of the Pub
may have exceeded that given the relative degree of intentionality of the perpetrators.
We therefore decline to find an abuse of discretion by the
trial court in refusing to order a new trial on the allocation of
The Pub's final argument in favor of a new trial is that Bartolini's
closing argument was improper. In particular, the Pub challenges the following portion
of Bartolini's closing:
But your verdict can also do something else. It can send a message out, loud and clear, to every drinking establishment in our community by implicitly telling them it's their legal, it's their moral, it's their social responsibility to check I.D.'s at the door. Now, it won't always stop an intentional criminal act by an unruly patron. Some kids will slip through the cracks anyway. They've got pretty authentic looking I.D.'s. But it will go a long way towards stopping it, and it is beyond all doubt that it would have stopped it in this case. And so, at this moment, you are the conscience of our community. You can send this message to the restaurants and taverns. It isn't as though we're numbers or robots. We are people. We matter. And you could tell them, "You're not going to get away with this."
App. of Appellant at 530. Noting that the Pub had not presented an objection to this argument during trial, the trial court denied the motion to correct error without considering this claim. App. of Appellant at 6. To seek appellate relief based on alleged improprieties in a closing argument, a party "must promptly interpose and state its objection to the language or argument and request the court to so instruct the jury as to counteract any harmful effect of such language or argument." Ritter v. Stanton, 745 N.E.2d 828, 856 (Ind. Ct. App. 2001), trans denied. Having failed to object at trial, the Pub may not present this issue on appeal.
Sullivan, Boehm, and Rucker, JJ., concur. Shepard, C.J., dissents with separate opinion.