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DTCI: Existing duty is prerequisite of negligence

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DTCI-Gould-KatherineRTo prevail on a claim of negligence, a plaintiff must show that a duty exists, that the duty was breached, and that damages resulted from that breach. It goes without saying that there can be no negligence or liability where there is no duty.

The Indiana Supreme Court considered the question of duty this summer in Kroger Co. v. Plonski, 930 N.E. 2d 1 (Ind. 2010). Specifically, it examined the duty business owners owe to their invitees to protect them against foreseeable criminal acts and the evidence they must present to the court for it to determine whether the duty exists.

The law is well settled that “[l]andowners have a duty to take reasonable precautions to protect their invitees from foreseeable criminal attacks.” Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1052 (Ind. 2003). The court recognized that the more challenging inquiry is whether, in a given case involving business owners and invitees, the particular element of duty has been met. This is so because although reasonable foreseeability is ordinarily a question of fact for the jury to decide, in the context of duty, reasonable foreseeability is determined by the court because it is a question of law. The court considers the “totality of the circumstances” in its duty analysis. Delta Tau Delta v. Johnson, 712 N.E.2d 968, 972-73 (Ind. 1999); Vernon v. Kroger Co., 712 N.E.2d 976, 979 (1999); L.W. v. W. Golf Ass’n., 712 N.E.2d 983, 984-85 (Ind. 1999). “More precisely, the court must examine ‘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.’” Plonski, 930 N.E.2d at 7 (citing Delta Tau Delta, 712 N.E.2d at 972).

In Plonski, the plaintiff filed suit against Kroger after she was assaulted in the parking lot while loading groceries in the car. The store filed a motion for summary judgment based in part that it owed no duty to the plaintiff because the assault was not reasonably foreseeable.

Kroger, the moving party in the summary-judgment action, had the burden of demonstrating that as a matter of law the criminal assault on the plaintiff was not foreseeable. The only evidence Kroger designated to support its motion was the affidavits of its risk manager and safety manager. Both managers asserted that the store was located in a part of the city that had a reputation for low levels of criminal activity. The safety manager also stated that during the two-year period preceding the incident, there had only been one incident that could be considered violent criminal activity. Plonski, 930 N.E.2d at 7-8.

The court stated that the single event occurring within two years of plaintiff’s assault did not necessarily support the view that the criminal act on Kroger’s premises was foreseeable. Yet, the assertion concerning the area of the city and its reputation for minimal criminal activity was unpersuasive because it offered no insight as to the reasonable foreseeability of a criminal attack in the particular parking lot where the assault occurred. The court held that summary judgment was inappropriate because the materials Kroger designated did not satisfy the burden of demonstrating that criminal activity on its premises at the time of the plaintiff’s assault was unforeseeable. Thus, the plaintiff did not need to offer evidence to the contrary.

It appears this was a case in which affidavits simply did not include enough information to necessitate a finding of summary judgment in favor of Kroger. Further, if parties present only evidence concerning the reputation of the area surrounding the business where the attack occurred, they will not persuade the court to grant summary judgment in their favor.•

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Katherine R. Gould is an associate in the Indianapolis office of LewisWagner. The opinions expressed in this article are those of the author.

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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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