The Indiana Supreme Court has dealt a near deathblow to negligent security cases in Indiana, and worse, perhaps a blow to proximate cause in general.
Typically, when you go into a tavern or any other business, you should be able to expect that you won’t get shot or hurt by other customers that the establishment knows or should know is a problem.
If a business fails to take precautions or issue warnings or prevent incidents, it’s a type of negligence known as premises liability. A specific type of premises liability is called negligent security. A business or establishment had the duty to make sure it takes reasonable steps to protect patrons from criminal actions of other patrons or others nearby.
The key term in negligence security cases (and duty or proximate cause issues in all negligence cases according to Palsgraf case “foreseeability.” A business (or any person) cannot be held to have a duty to an injured party unless it was “foreseeable” that the action or lack of preventative steps would have a possibility that it could injure somebody. In tavern cases, that’s typically proven by showing a pattern of past similar crimes in the same place or same general area.
But, the Indiana Supreme Court thinks otherwise. In the recent case of Goodwin v. Yeakle’s Sports Bar & Grill, negligent security was the issue. But, the Indiana Supreme Court went way past negligent security issues and started talking about duty or proximate cause in general in all negligence lawsuits.
The trial facts were undisputed. Three friends went to a small tavern or bar late one night in August 2010. They were seated at a table and socializing. Nearby, another couple — husband and wife — were sitting. The husband believed he heard one of the three friends comment badly upon his wife. So, he took out his gun and shot the man he thought said the comment. For good measure, he shot all three friends.
He was arrested and pleaded guilty to three counts of battery as a felony.
The plaintiff filed a legal complaint against the tavern and bar, alleging a failure to provide security for its patrons by failing to search the gunman for weapons and for failing to warn the plaintiff that others might be armed and dangerous.
The tavern’s lawyers argued the act of the shooter was not foreseeable, so it did not have a duty to search for weapons or prevent the crime from occurring.
The trial court agreed with the defendant and granted summary judgment. The appeals court reversed in favor of the Plaintiff, but the Indiana Supreme Court reinstated the trial court’s order and ordered the case dismissed against the tavern.
Although the appeals court held that reasonable foreseeability is not necessary to prove the bar breached its duty of care, the state supreme court disagreed.
The Indiana Supreme Court ruled requirements of negligence in personal injury law includes: a duty of care owed by the defendant to the plaintiff, that the defendant breached that duty and the defendant’s breach of duty proximately (immediately or logically) caused the injury to the plaintiff.
The Indiana Supreme Court said that foreseeability issues in cases involving liability for third-party attacks requires a look at all facts.
Certainly, owners of taverns owe patrons and customers a duty to use reasonable care in protecting them from injuries caused by other customers. This includes making sure there is enough staff to control instances of potential disorderly conduct. Indiana law is clear whether it’s a slip and fall on slippery or icy parking lots or getting shot in a tavern: landowners don’t have to ensure their guests’ safety, but they do have to take reasonable measures to protect them from injury.
The court ruled that foreseeability was a necessity in these cases when it comes to showing whether reasonable care was used. There remains some conflict with regard to how that standard should be applied.
Here, based on all the facts, the trial court found that the shooting was not foreseeable because:
- The bar was in a relatively safe neighborhood;
- No prior shootings had occurred before this night;
- No other incidents involving guns had occurred at the tavern or club prior to this night; and
- The shooter was commonly known as a “joker” rather than a violent thug or hot-head.
The case could have been decided without the extra language of what “foreseeability” means.
One can expect numerous filings by defense lawyers in all negligence and personal injury cases to dismiss the case against their clients as unforeseeable.