By Katie Buckner
The Indiana Court of Appeals recently decided that a grocery store’s landlord owed no duty to store patrons who were injured by an intoxicated driver in the parking lot. Poppe v. Angell Enterprises, Inc. __ N.E.3d __ (2021). The Poppes had been walking from the store to their vehicle in a marked crosswalk when a truck came toward them and pinned them to their vehicle, causing injury. Without looking at the condition of the land or other specifics of the situation in the Poppes’ incident, the Court of Appeals affirmed that the company was entitled to summary judgment because it owed no duty to the Poppes.
It might seem strange that the court would make such a determination without looking at the specific situation or allowing a jury to examine the facts, but Indiana courts approach landowner liability cases by taking a broad approach to the type of plaintiff injured and the type of harm suffered. This avoids making landowners act as insurers to their patrons when the acts of third parties are involved. Yet the caselaw has not always been so clear. In this author’s lifetime, Indiana courts have shifted from evaluating duty based on the specific situation to evaluating duty much more broadly.
For plaintiffs to prevail on negligence claims, they must demonstrate: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by allowing conduct to fall below the applicable standard of care; and (3) a compensable injury proximately caused by the defendant’s breach of duty. King v. Northeast Security, Inc., 790 N.E.2d 474, 484 (Ind. 2003). Yet Indiana has historically used varied approaches in determining that first element: whether a duty is owed. While Indiana has generally recognized that a duty exists only when a harm is foreseeable, courts have altered the way they determine what is foreseeable.
A sticking point has been that the elements of duty and of proximate cause require an inquiry into foreseeability. In 1991, the Supreme Court’s approach to evaluating the foreseeability aspect of duty was to consider each specific situation. “In analyzing the foreseeability component of duty, we focus on whether the person actually harmed was a foreseeable victim and whether the type of harm actually inflicted was reasonably foreseeable.” Webb v. Jarvis, 575 N.E.2d at 997 (no duty as it is not foreseeable that a prescription might make a patient assault someone). The court then in Fawley v. Martin’s Supermarkets, Inc., noted that the “exact same” factor of foreseeability was involved in the question of duty and the question of proximate cause. 618 N.E.2d 10 (1993) (court considered history in the area to determine there was no duty to protect business invitees from an intoxicated driver).
In 1999, the court handed down three cases affirming the specific approach to the foreseeability aspect of determining a commercial premises owner’s duty, stating that courts should look at the totality of the circumstances. See L.W. v. Western Golf Ass’n, 712 N.E.2d 983, 984–85 (Ind. 1999); Vernon v. Kroger Co., 712 N.E.2d 976, 979 (Ind. 1999); Delta Tau Delta v. Johnson, 712 N.E.2d 968, 973 (Ind. 1999). This involved looking at “all of the circumstances surrounding an event, including the nature, condition, and location of the land, as well as prior similar incidents.” Western Golf, 712 N.E.2d at 985.
Four years later in Paragon Family Restaurant v. Bartolini, the court discussed the trilogy of cases from 1999, but determined that the law in that case was well-established: Landowners have a duty to take reasonable precautions to protect their invitees from foreseeable criminal attacks. 799 N.E.2d 1048, 1052 (Ind. 2003). That approach was affirmed and applied in Kroger Co. v. Plonski, 930 N.E.2d 1 (Ind. 2010) (Kroger failed to demonstrate the criminal activity was not foreseeable). However, by 2016, in a footnote to Rogers v. Martin, the court clarified that to read Bartolini as “suggest[ing] that a court need not evaluate foreseeability in the context of duty because the landowner-invitee duty was well-settled” is a much too narrow reading. 63 N.E.3d 316, 324 (Ind. 2016). The court in Rogers abrogated the decisions in Plonski and Delta Tau Delta, instead holding that “foreseeability, as part of the duty analysis, was required to focus on general class of persons … whether harm suffered was of a kind normally to be expected, without addressing the specific facts of the occurrence.” Id.
Suddenly, Indiana seemed to change its duty-analysis approach from looking at the specific circumstances to looking at the situation broadly.
Since then, Indiana courts have strayed from the specific approach in favor of the general inquiry into whether a duty exists. In 2016, the Supreme Court in Goodwin v. Yeakle’s Sports Bar and Grill, Inc., noted the “conflict in our opinions” and clarified that whether a duty exists is a question of law for the court, and the “totality of the circumstances” tests are therefore “ill-suited to determine foreseeability in the context of duty.” 62 N.E.3d 384, 390, 392 (2016). The court acknowledged that “at least part of the confusion in this area of the law is grounded in the fact that for most negligence actions foreseeability is a component of proximate causation only,” but in some cases a foreseeability inquiry is also necessary to determine whether a duty exists. Goodwin at 389. Thus, it adopted the approach used in Goldsberry v. Grubbs, that whether a duty exists involves a “lesser inquiry which ‘requires a more general analysis of the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence.’” 672 N.E.2d 475, 479 (Ind. Ct. App 1996).
Now, the broader approach to evaluating duty rejects strict liability of commercial premises owners for the criminal acts of third parties because that would make proprietors insurers of their patrons’ safety, which is contrary to public policy. See Goodwin at 394. Although Indiana has strayed from the “totality of the circumstances” approach, the outcome has consistently been that criminal acts of third persons are not generally foreseeable unless the facts suggest otherwise.•
■ L. Katie Buckner is an associate attorney with The Tyra Law Firm in Indianapolis and a member of DTCI. Opinions expressed are those of the author.