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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. Welcome to Hendricks County where local and state statutes (especially Indiana Class C misdemeanors) are given a higher consideration than Federal statues and active duty military call-ups.

  2. If real money was spent on this study, what a shame. And if some air-head professor tries to use this to advance a career, pity the poor student. I am approaching a time that i (and others around me) should be vigilant. I don't think I'm anywhere near there yet, but seeing the subject I was looking forward to something I might use to look for some benchmarks. When finally finding my way to the hidden questionnaire all I could say to myself was...what a joke. Those are open and obvious signs of any impaired lawyer (or non-lawyer, for that matter), And if one needs a checklist to discern those tell-tale signs of impairment at any age, one shouldn't be practicing law. Another reason I don't regret dropping my ABA membership some number of years ago.

  3. The case should have been spiked. Give the kid a break. He can serve and maybe die for Uncle Sam and can't have a drink? Wow. And they won't even let him defend himself. What a gross lack of prosecutorial oversight and judgment. WOW

  4. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  5. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

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