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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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  2. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  3. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

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  5. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

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