Bearman v. University of Notre Dame
| Decision Date | 22 September 1983 |
| Docket Number | No. 3-882A223,3-882A223 |
| Citation | 453 N.E.2d 1196 |
| Court | Indiana Appellate Court |
| Parties | 13 Ed. Law Rep. 843 James BEARMAN & Christenna Bearman, Appellants-Plaintiffs, v. UNIVERSITY OF NOTRE DAME, Appellee-Defendant. |
Gerald M. McNerney, Butler, for appellants-plaintiffs.
John E. Doran, David T. Ready, South Bend, for appellee-defendant .
Christenna Bearman suffered a broken leg when she was knocked down by a drunk as she was returning to her car after a Notre Dame football game. Bearman and her husband sued the University of Notre Dame for damages resulting from that injury. After the close of all evidence, the trial court granted Notre Dame's motion for judgment on the evidence. Bearman appeals, raising one issue:
Whether Notre Dame had a duty to protect Mrs. Bearman from injury caused by the acts of third persons.
Reversed and remanded.
The evidence and inferences most favorable to Bearman shows that on October 27, 1979, Mr. and Mrs. Bearman attended a football game at the University of Notre Dame. The Bearmans left the game shortly before it ended. As they were walking through a parking lot toward their car, they observed two men who appeared to be drunk. The men were fighting, one of them fell down, and then they walked away from each other. One of the men walked past the Bearmans. A few moments later, the man fell into Mrs. Bearman from behind, knocking her to the ground. Mrs. Bearman suffered a broken leg from the fall. There were no ushers or security people in the area when the incident occurred.
When the trial court considers a motion for judgment on the evidence, it must consider only the evidence most favorable to the non-moving party. The motion may be granted only if there is no substantial evidence, or reasonable inference to be drawn therefrom, which supports an essential element of the claim. If reasonable persons might differ as to the inferences to be drawn from the evidence, then judgment on the evidence is not proper. Keck v. Kerbs (1979), Ind.App., 395 N.E.2d 845, 846.
Bearman argues that she was a business invitee of the University of Notre Dame; therefore, Notre Dame owed to her a duty to protect her from injury caused by the acts of other persons on the premises. On the other hand, Notre Dame argues that absent notice or knowledge of any particular danger to a patron, the University cannot be held liable for the acts of third persons.
It is axiomatic that the conduct of a person will give rise to an action for negligence only if that person owed a duty to the plaintiff to conform his actions to the standard of care. The existence of such a duty is a question of law . Koroniotis v. LaPorte Transit, Inc. (1979), Ind.App., 397 N.E .2d 656.
Generally, the operator of a place of public entertainment owes a duty to keep the premises safe for its invitees. Cory v. Ray (1944), 115 Ind.App. 50, 55 N.E.2d 117. This duty includes a duty to provide a safe and suitable means of ingress and egress, Verplank v. Commercial Bank of Crown Point (1969), 145 Ind.App. 324, 251 N.E.2d 52, and a duty to exercise ordinary and reasonable care to protect a patron from injury caused by third persons. 86 C.J.S., Theatres and Shows Sec. 41c. However, the invitor is not the insuror of the invitee's safety. Hammond v. Allegretti (1974), 262 Ind. 82, 311 N.E.2d 821. Before liability may be imposed on the invitor, it must have actual or constructive knowledge of the danger. Id.
The Restatement of Torts (Second) Sec. 344 (1965) sets forth the applicable rule:
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