ATTORNEYS FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
C. JOSEPH ANDERSON SHANNON L. ROBINSON
JOHN P. NICHOLS
WILLIAM H. KELLEY
Anderson & Nichols Kelley, Belcher & Brown
Terre Haute, Indiana Bloomington, Indiana
COURT OF APPEALS OF INDIANA
MERCHANTS NATIONAL BANK as )
Administrator of the ESTATE OF )
CHRISTOPHER C. MERCHANT, )
vs. ) No. 84A01-9908-CV-285
SIMRELLS SPORTS BAR & GRILL, INC., )
APPEAL FROM THE VIGO SUPERIOR COURT
The Honorable Dexter L. Bolin, Judge
Cause No. 84D03-9808-CT-1388
December 20, 2000
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Merchants National Bank, as Administrator of the Estate of Christopher C. Merchant (the
"Administrator"), filed a wrongful death suit against Simrell's Sports Bar & Grill, Inc.
("Simrell's"), after Merchant, a patron of Simrell's, was shot and killed on the
sidewalk outside of the tavern. Simrell's moved for summary judgment arguing that
it owed no duty to Merchant as a matter of law. Following
a hearing, the trial court granted summary judgment in favor of Simrell's.
The Administrator appeals.
The Administrator raises three issues for our review which we restate as:
1. Whether the trial court erred when it concluded, as a matter of law,
that Simrell's owed no common law duty to Merchant.
2. Whether the trial court erred when it concluded, as a matter of law,
that Simrell's did not gratuitously assume a duty to Merchant.
2. Whether the trial court erred when it concluded that Simrell's was not liable
for Merchant's death pursuant to the Dram Shop Act, Indiana Code Section 7.1-5-10-15.5.
On Tuesday, January 7, 1997, Merchant entered Simrell's, located in Terre Haute.
Merchant remained inside the bar until closing time at approximately 3:30 a.m. and
then left with two friends. Another group of patrons, including Theodore Brewer,
had left the bar several minutes earlier. After Merchant exited Simrell's, an
altercation erupted involving Merchant and Brewer on the sidewalk outside the bar.
Brewer shot and killed Merchant.
DISCUSSION AND DECISION
Standard of Review
When reviewing the grant or denial of a summary judgment motion, this court
applies the same standard as the trial court. Miles v. Christensen, 724
N.E.2d 643, 645 (Ind. Ct. App. 2000), trans. denied. Summary judgment is
appropriate only where the evidence shows there is no genuine issue of material
fact and the moving party is entitled to a judgment as a matter
of law. See Ind. Trial Rule 56(C); Shell Oil Co. v. Lovold
Co., 705 N.E.2d 981, 983-84 (Ind. 1998). All facts and reasonable inferences
drawn from those facts are construed in favor of the nonmoving party.
Shell Oil, 705 N.E.2d at 983-84.
To prevail on a motion for summary judgment in a negligence case, the
defendant must demonstrate that the undisputed material facts negate at least one element
of the plaintiff's claim. Ward v. First Indiana Plaza Joint Venture, 725
N.E.2d 134, 135-36 (Ind. Ct. App. 2000), trans. denied. Once the moving
party has met this burden with a prima facie showing, the burden shifts
to the nonmoving party to establish that a genuine issue does in fact
exist. Id. at 136. The party appealing the trial court's grant
of a motion for summary judgment bears the burden of persuading this court
that the trial court erred. Id.
Issue One: Common Law Duty
We first address the Administrator's contention that the trial court erroneously concluded that
Simrell's did not have a common law duty to protect Merchant from Brewer's
criminal act. To recover in negligence, a plaintiff must establish: (1) a
duty on the part of the defendant to conform his conduct to a
standard of care arising from his relationship with the plaintiff; (2) a failure
on the part of the defendant to conform his conduct to the requisite
standard of care; and (3) an injury to the plaintiff proximately caused by
the breach. Van Duyn v. Cook-Teague P'ship, 694 N.E.2d 779, 781 (Ind.
Ct. App. 1998), trans. denied. Absent a duty, there can be no
breach and, therefore, no recovery in negligence. Id.
We have long recognized "the duty of a tavern owner, engaged in the
sale of intoxicating beverages, to exercise 'reasonable care to protect guests and patrons
from injury at the hands of irresponsible persons whom they knowingly permit to
be in and about the premises.'" Ember v. BFD, Inc., 490 N.E.2d
764, 769 (Ind. Ct. App. 1986)(quoting Glen Park Democratic Club, Inc. v. Kysla,
129 Ind. App. 393, 396, 213 N.E.2d 812, 814 (1966)), modified, 521 N.E.2d
981 (Ind. Ct. App. 1988). However, we have also held that a
duty to anticipate and to take steps against a criminal act of a
third-party arises only when the facts of the particular case make it reasonably
foreseeable that a criminal act is likely to occur. Welch v. Railroad
Crossing, Inc., 488 N.E.2d 383, 388 (Ind. Ct. App. 1986). Particular facts,
which make it reasonably foreseeable, include the prior actions of the assailant either
on the day of the act or on a previous occasion. Id.
Keeping with these principles, our supreme court has recently held that Indiana courts
confronted with the issue of whether a landowner owes a duty to take
reasonable care to protect an invitee from the criminal acts of a third
party should apply the "totality of the circumstances" test to determine whether the
crime in question was foreseeable. Delta Tau Delta v. Johnson, 712 N.E.2d
968, 973 (Ind. 1999); see also Vernon v. Kroger Co., 712 N.E.2d 976
(Ind. 1999); L.W. v. Western Golf Ass'n, 712 N.E.2d 983 (Ind. 1999).
When considering whether the totality of the circumstances supports the imposition of a
duty, we look to "all of the circumstances surrounding an event, including the
nature, condition, and location of the land, as well as prior similar incidents,
to determine whether a criminal act was foreseeable." Delta Tau Delta, 712
N.E.2d at 972. "A substantial factor in the determination of duty is
the number, nature, and location of prior similar incidents, but 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.
While landowners have no duty to ensure an invitee's safety, they do
have a duty to take reasonable precautions to prevent foreseeable criminal acts against
an invitee. Id.
We note, as did the trial court, that Merchant was shot on a
public sidewalk just outside of Simrell's and, thus, Merchant was not actually on
premises owned by the tavern when he was killed. While the totality
of the circumstances test enunciated in Delta Tau Delta determines the premises liability
of landowners to their invitees, we nevertheless conclude that the totality of the
circumstances test is the appropriate analysis to be applied in the instant case.
First, it is strikingly similar to our prior law regarding the duty
of tavern owners to protect their patrons against the foreseeable criminal acts of
third parties. Moreover, in Vernon, our supreme court recognized that an invitor's
duty to exercise reasonable care extends to providing a safe and suitable means
of ingress and egress for the invitee. Vernon, 712 N.E.2d at 979.
Also, we had previously acknowledged in Ember that other jurisdictions have
extended a tavern's duty to its patrons beyond the limits of the business
property. Ember, 490 N.E.2d at 772. Indeed, "[a] duty of reasonable
care may be extended beyond the business premises when it is reasonable for
invitees to believe that the invitor controls premises adjacent to his own or
where the invitor knows his invitees customarily use such adjacent premises in connection
with the invitation." Id. (citing Ollar v. Spakes, 601 S.W.2d 868 (Ark.
1980); Chapman v. Parking, Inc., 329 S.W.2d 439 (Tex. App. 1959)(both cases involved
attacks in adjacent parking lots)); see also Alholm v. Wilt, 348 N.W.2d 106
(Minn. Ct. App. 1984) (assault in public alley behind tavern). Because Merchant
necessarily used the public sidewalk outside of Simrell's as a means of egress
from the tavern's premises, we apply the totality of the circumstances test to
determine whether Simrell's owed him a common law duty.
The record provides insufficient evidence for us to hold that Simrell's owed Merchant
a duty to protect him from Brewer's criminal act. There is no
evidence of any prior or similar shooting incidents outside of the tavern that
would have alerted Simrell's to the likelihood that Brewer would shoot Merchant.
The only evidence of prior incidents is testimony by a tavern employee that
fights occurred outside the tavern "quite a bit." Supplemental Record at 7.
This evidence is insufficient to demonstrate that Merchant's shooting death was foreseeable.
Additionally, there is nothing in the record to indicate that Simrell's had
any knowledge that Brewer had the propensity to commit a criminal act, and
further, there is no evidence that Merchant and Brewer had any contact while
inside the tavern on the night in question to indicate hostility between the
two. Under the totality of the circumstances presented here, we conclude, as
a matter of law, that Simrell's did not have a duty to protect
Merchant from the unforeseeable criminal act committed by Brewer.
Issue Two: Assumed Duty
The Administrator maintains, in the alternative, that summary judgment was inappropriate because Simrell's
assumed a duty to protect its patrons from the criminal acts of third
persons. We disagree.
As our supreme court recently reiterated, a duty may be imposed:
upon one who by affirmative conduct . . . assumes to act, even
gratuitously, for another to exercise care and skill in what he has undertaken.
It is apparent that the actor must specifically undertake to perform the
task he is charged with having performed negligently, for without actual assumption of
the undertaking there can be no correlative legal duty to perform the undertaking
Butler v. City of Peru, No. 52S02-0002-CV-117, 2000 WL 1160804, *4 (August 14,
2000) (citations omitted). The assumption of a duty creates a special relationship
between the parties and a corresponding duty to act in the manner of
a reasonably prudent person. Delta Tau Delta, 712 N.E.2d at 975.
The existence and extent of such duty is ordinarily a question of fact
for the trier of fact. Id. However, when the record contains
insufficient evidence to establish an assumed duty, the court will decide the issue
as a matter of law. Id. In other words, we may
decide whether Simrell's assumed a duty toward Merchant only if there are no
genuine issues of material fact. See Sizemore v. Templeton Oil Co., 724
N.E.2d 647, 651 (Ind. Ct. App. 2000). Issue Three: Dram Shop Act
In support of its argument that Simrell's assumed a duty to protect Merchant,
the Administrator relies on our decision in Ember. In Ember, a tavern
patron sued for negligence after being attacked and severely beaten by three men
outside the tavern. Ember, 490 N.E.2d at 768. The trial court
subsequently granted summary judgment in favor of the tavern. On appeal, we
reversed the entry of summary judgment concluding that there were genuine issues of
material fact regarding whether the tavern had gratuitously assumed a duty to its
patron after he left the tavern's premises. Id. at 770. Particularly,
we noted that the tavern took several affirmative actions indicating an intent to
assume a duty, such as: (1) distributing flyers throughout the neighborhood asking residents
to call the tavern if anyone was disturbing them, even if the disturbance
was unrelated to the tavern, (2) informing the neighborhood that the tavern would
provide security patrols in the area, and (3) writing a letter to the
Indiana Alcoholic Beverage Commission detailing the steps it had taken to preserve peace
and order in the vicinity of the tavern. Id.
Here, unlike in Ember, there is no designated evidence that Simrell's, through affirmative
conduct or agreement, gratuitously undertook a duty to protect Merchant from the unforeseeable
criminal act of a third-party. The Administrator points to evidence that Simrell's
provided security for its patrons on Thursday, Friday and Saturday nights when it
featured a band. Supplemental Record at 20. However, it is undisputed
that Merchant was shot on a Tuesday night. The evidence is insufficient
to establish, as a matter of law, that Simrell's assumed a duty to
protect Merchant from Brewer's criminal act.
The Administrator also relies on the fact that Simrell's ordered an intoxicated Merchant
to leave the premises as evidence that it assumed a duty to protect
him. However, ordering a patron to leave a tavern is not an
affirmative step to provide for that patron's safety. See Fast Eddie's v.
Hall, 688 N.E.2d 1270, 1274 (Ind. Ct. App. 1997), trans. denied. To
impute a duty under such circumstances would essentially "require tavern owners to be
the guarantors of each departing patron's safety," which we will not do.
Id. We find no assumed duty.
We next address the Administrator's contention that the trial court erred when it
concluded, as a matter of law, that Simrell's was not liable for Merchant's
death under Indiana Code Section 7.1-5-10-15.5. Pursuant to the Dram Shop Act,
a provider of alcoholic beverages is not liable in a civil action unless:
(1) the person furnishing the alcoholic beverage had actual knowledge that the person
to whom the alcoholic beverage was furnished was visibly intoxicated at the time
the alcoholic beverage was furnished; and,
(2) the intoxication of the person to whom the alcoholic beverage was furnished
was a proximate cause of the death, injury, or damage alleged in the
Ind. Code § 7.1-5-10-15.5(b). Accordingly, even though a proprietor may have a
statutory duty to refrain from providing alcoholic beverages to intoxicated persons, the proprietor
will not be held liable unless the alleged violation is the proximate cause
of the person's death or injury. Fast Eddie's, 688 N.E.2d at 1274.
Indeed, proximate cause places an effective limit on dram shop liability.
National R.R. Passenger Corp. v. Everton, 655 N.E.2d 360, 365 (Ind. Ct. App.
1995), trans. denied. Conclusion
In determining whether an act is the proximate cause of another's injury, we
consider whether the injury was the natural and probable consequence of the negligent
act which, in light of the attending circumstances, could have been reasonably foreseen
or anticipated. St. John Town Bd. v. Lambert, 725 N.E.2d 507, 520
(Ind. Ct. App. 2000). To be considered a proximate cause, the negligent
act must have set in motion a chain of circumstances which, in natural
and continuous sequence, led to the resulting injury. Id. However, a
willful, malicious criminal act of a third party is an intervening act that
breaks the causal chain between the alleged negligence and the resulting harm.
Basicker ex rel. Johnson v. Denny's, Inc., 704 N.E.2d 1077, 1080 (Ind. Ct.
App. 1999), trans. denied. While proximate cause is generally a question of
fact, it becomes a question of law where only a single conclusion can
be drawn from the facts. Id.
In the present case, even though a genuine issue of material fact exists
as to whether Simrell's breached its statutory duty under the Dram Shop Act,
any such breach was not the proximate cause of the resulting harm.
Brewer's criminal act of shooting Merchant was an intervening criminal act that broke
the causal chain between Simrell's alleged negligence and Merchant's death. Summary judgment
was appropriate on this issue.
In sum, Simrell's neither owed a common law duty based on a premises
liability theory, nor assumed a duty to protect Merchant from Brewer's unforeseeable criminal
act. Moreover, Simrell's is not liable for Merchant's death under the Dram
Shop Act. The trial court properly entered summary judgment in favor of
SHARPNACK, C.J., and BROOK, J., concur.