ILNews

DTCI: Existing duty is prerequisite of negligence

Back to TopE-mailPrintBookmark and Share

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.•

__________

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

ADVERTISEMENT

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT