COA allows negligence case against Steak ‘n Shake to proceed

May 29, 2018

A negligence case against an Indiana Steak ‘n Shake restaurant will proceed to trial after the Indiana Court of Appeals determined the restaurant owed a duty to protect one of its patrons from a third-party injury, making summary judgment inappropriate.

Jeffery Certa and Rick and Arlene Luse were at a Lafayette Steak ‘n Shake in the early morning hours of May 4, 2013 when they saw a man and woman arguing in the parking lot. The man shoved the woman into a wall, so Certa stepped between them and told the man not to touch the woman. Certa then began arguing with Mikal Gillham, a woman who was with the couple and told Certa to stay out of their business.

Certa then entered the restaurant, followed shortly by Gillham, who was joining friends who were already inside. Gillham’s aunt, Ladonna Musik, was the server working that night, and Gillham told her aunt not to allow Certa and his friends into the restaurant because she believed they had been drinking and would start a fight. Gillham and her friends had also been drinking.

Musik tried to diffuse the situation and advised her managers of the situation, and though the groups did not speak to each other, they spoke loudly about each other. Both groups then left the restaurant around the same time, and as Certa exited the building, he saw Gillham punching Arlene.

Certa ran into the restaurant and asked employees to call the police, then returned to the scene and attempted to get Gillham’s license plate number, but one of Gillham’s friends put her car in reverse and backed it over him. As a result, Certa sued multiple parties, including Steak ‘n Shake, which he alleged was negligent in failing to reasonably control customers, properly train staff to handle intoxicated guests, provide proper security and call the police in a timely manner.

The Tippecanoe Superior Court initially denied Steak ‘n Shake’s subsequent motion for summary judgment, but then entered summary judgment after granting a motion to reconsider. The Court of Appeals, however, reinstated the trial court’s original decision on Tuesday after finding the restaurant owed a duty to Certa.

Specifically, Senior Judge Betty Barteau – relying on the analyses laid out in Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384 (Ind. 2016) and Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016) – wrote that here, the broad type of plaintiff is a restaurant patron, and the broad type of harm is an injury caused by a third party.

“In determining the foreseeability, we are mindful that Steak ‘n Shake did not have to know the precise harm that its customers would suffer, only that there was some probability or likelihood of harm that was serious enough to induce a reasonable person to take precautions to avoid it,” Barteau wrote. “…Given these circumstances, we conclude that Steak ‘n Shake’s knowledge of the events on its premises in this case gave rise to a duty to take reasonable steps to provide for Certa’s safety as a patron of its establishment.”

The court remanded the case of Jeffery Certa v. Steak ‘n shake Operations, Inc., Mikal Gillham, and Matthew Hullet, 79A05-1708-CT-1873, noting that the issues of breach of the duty to Certa and proximate cause must be resolved by a trier of fact.


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