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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. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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