When Businesses Have a Duty to Protect Their Customers: The Foreseeable Attack

On November 29, 2023, the Indiana Court of Appeals published its Opinion in Brummett v. Bailey, 23A-CT-683, slip op. Brummett is the latest case in a string of Indiana Court of Appeals decisions following the Indiana Supreme Court’s Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 389 (Ind. 2016). In these cases, the courts have been grappling with the question of whether a landowner or businessowner owes a duty of care to its invitees (what the law calls customers) for the criminal acts of other parties. The key determining factor in these cases has consistently been whether the owner knew or had reason to know of the imminent harm.

On the evening of January 4, 2020, at a bar in Muncie, Indiana, Plaintiff Bailey was pushed off his bar stool following an altercation with another patron. Bailey filed a lawsuit against the bar, its owner, and employees, claiming they were negligent because of their employees’ acts and failures to act to prevent the harm. The bar defendants moved for summary judgment claiming that it and its employees did not owe a duty to Bailey to protect him from an unforeseeable act. The trial court denied the bar defendants’ motion and the defendants appealed.

In its decision, the Brummett court pointed to analysis from Singh v. Singh, 155 N.E. 3d 1197 (Ind. Ct. App. 2020), which discussed the recent Indiana Supreme Court holding from Cavanaugh’s Sports Bar & Eatery, Lt. v. Porterfield, 140 N.E.3d 843 (Ind. 2020). As these cases discuss, an owner must “take reasonable precautions to protect invitees from foreseeable criminal attacks.” Rogers v. Martin, 63 N.E.3d 316, 326 (Ind. 2016). In determining whether an owner has a duty for the criminal act at issue, the Court focuses on the foreseeability of the attack which requires “an evaluation of (1) the broad type of plaintiff and (2) the broad type of harm.” Id. at 325. “In other words, a court looks at foreseeability globally for the purpose of determining whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm suffered such that a duty—and thus liability—may be imposed on the negligent party.” Godfread v. Martin’s Super Markets L.L.C., 120 N.E.3d 234, 240 (Ind. Ct. App. 2019)

A key factor in considering these categories is whether the owner “knew or had reason to know of any present and specific circumstance that would cause a reasonable person to recognize the probability or likelihood of imminent harm.” Cavanaugh’s, 140 N.E.3d at 840.[1] “If landowners had reason to know of any imminent harm, that harm was, as a matter of law, foreseeable in the duty context.” Id. This knowledge must be contemporaneous and specific to the criminal act that occurs. An establishment’s previous history of raucousness or rowdy behavior is typically not enough to demonstrate that the owner knew about any specific circumstances leading to the probability of imminent harm.

In Brummett, the evidence demonstrated that at the time of the incident, there were two staff members serving drinks at the bar, and these staff were not familiar with Nelson, the defendant who pushed Bailey off his stool. Brummett, at *11. Forty minutes prior to Nelson pushing Bailey, Bailey made a crude comment to Nelson, who laughed it off. Id. Otherwise, there was no indication to the staff that tensions were rising between the two. Id. Thus, the Brummett court found that the defendants did not have notice of present and specific circumstances that would make Nelson pushing Bailey off the stool foreseeable. Id.

The courts are reluctant to say precisely when there is sufficient evidence to demonstrate an owner’s knowledge of an imminent attack. As Justice Goff noted in his dissent in Cavanaugh’s, the courts are struggling with the spectrum of when a duty is found as a matter of law. On one end of the spectrum is the idea that “businesses should not become insurers of their invitees’ safety,” as that would be closer to strict liability. Cavanaugh’s, 140 N.E.3d at 846. The other end of the spectrum would “provide blanket immunity to businesses for foreseeable harms that befall their invitees.” Id. Justice Goff also recognized that the duty analysis, which in many cases can be fact-sensitive, has the potential to impede the injured party’s right to a trial. Id. “[B]y focusing on the facts in determining whether a duty exists, the majority takes from the factfinder at trial the ability to consider and weigh facts.” Id.


[1] See Hamilton v. Steak ‘n Shake Operations, Inc., 92 N.E.3d 1166, 1167 (Ind. Ct. App. 2018) (reversing summary judgment for restaurant on issue of duty where despite restaurant employees observing escalating tensions between two groups of customers over a period of thirty minutes, they did not intervene or call security or police, and a customer was shot inside the restaurant), trans. denied.; Certa v. Steak ‘n Shake Operations, Inc., 102 N.E.3d 336, 341 (Ind. Ct. App. 2018) (holding a fight was foreseeable when restaurant knew patrons had engaged in verbal altercation and there was potential for escalation).


For injured victims, this can be a pivotal make or break issue in seeking compensation for injuries or wrongful death. Hiring an experienced attorney to navigate and ensure that a claim is properly investigated and pursued is just as pivotal. If you or someone you love has been injured, contact the Indiana premises liability attorneys at Parr Richey Frandsen Patterson Kruse. The attorneys at Parr Richey Frandsen Patterson Kruse use our strengths to your advantage. Our attorneys possess the resources and experience to successfully represent clients in their claims for damages against negligent parties. We understand how important recovery is for our clients, and we work to ensure that our clients obtain the compensation they deserve. Contact our office at 317-269-2509 to schedule a free initial consultation with an attorney at our law firm.







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