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857 N.E.2d 1024

Winchell v. Guy

Indiana Court of Appeals

Decided December 6, 2006

Indiana Court of Appeals · decided 2006-12-06

Cited by 25 later decisions — most recently December 2016 · most notably Stacy Knighten v. East Chicago Housing Authority, Individually and d/b/a West Calumet Complex, Davis Security Service, LLC, and Donnell Caldwell (2015), Illinois Bulk Carrier, Inc. v. Jackson Ex Rel. Jackson (2009)

23 state decisions

Key passage — most relied on by later courts

“There is no doubt, however, that reasonable foreseeability is an element of a landowner or business proprietor's duty of reasonable care. The issue is merely at what point and in what manner to evaluate the evidence regarding foreseeability. We believe that Sharp provides the better answer. Where, as in this case, the alleged duty is well-established, there is no need for a new judicial redetermination of duty. The court's function was merely to adequately inform the jury of the applicable duty, and the jury was then to determine whether the Pub breached this duty of reasonable care to protect its invitees from foreseeable criminal attacks. In ruling upon a motion for judgment on the evidence asserting the absence of a well-settled duty, a trial court need only make a general determination as to whether such duty is generally applicable to the nature of the case presented by the evidence. In the present case, the well-settled duty was sufficiently established merely by evidence that Barto-lini, a customer of the Pub, was beaten in the Pub parking lot as he was leaving. Upon receiving instructions as to the general nature of the Pub's duty, [1 the jury was then able to evaluate whether Bartolini's injuries resulted from a criminal attack that was reasonably foreseeable to the Pub and for which it failed to exercise reasonable care.”

quoted by 1 later decision, including Kroger Co. v. Plonski

Relies on Paragon Family Restaurant v. Bartolini · Hammock v. Red Gold, Inc. · Lane v. St. Joseph's Regional Medical Center

Good law ✅— No negative treatment on recordhow we know

Decided 2006-12-06

View the full empirical analysis of this case →

SULLIVAN, Judge,

¶1concurring.

¶2Our Supreme Court in Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1053 (Ind.2003) observed that the matter of "reasonable foreseeability is an element of a landowner or business proprietor's duty of reasonable care." (Emphasis supplied).4 Yet the Court noted that the issue is "merely at what point and in what manner to evaluate the evidence regarding foreseeability." Id. In doing so, the Court removed the issue of foreseeability from a strict "duty" as a matter of law analysis and placed it within the factual issues more appropriately resolved by the trier of fact.

¶3Therefore, it may be said that although foreseeability is an element of the duty, it is more appropriate, under the holding of Bartolini, to place resolution of that question within the context of whether the "well-established" duty, needing no independent judicial determination as to its existence, was breached or whether any such breach was a proximate cause of plaintiff's injury. See Hammock v. Red Gold, Inc., 784 N.E.2d 495 (Ind.Ct.App.2003), trans. denied.5

¶4My separate opinion does not diminish, but rather leads to, my concurrence in the reversal of the summary judgment.

¶5. This observation was no doubt occasioned by the proposition that, in the context before us, a business proprietor's duty to exercise reasonable care for the safety of a patron extends only to protect against "foreseeable criminal acts" of third persons.

¶6. It is in this sense that this author, in Lane v. St. Joseph's Reg'l Med. Ctr., 817 N.E.2d 266, 272 (Ind.Ct.App.2004), observed that Bartolini might be read to hold that "the facts did not actually 'establish' the duty but allowed for the application of the duty." It was not intended that such a reading of Bartolini was, as construed by the majority here, an "individualized determination of whether a duty exists where one is already well-settled." Slip op. at 7.

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