Ember v. B.F.D., Inc.
| Decision Date | 13 March 1986 |
| Docket Number | No. 2-883-A-291,2-883-A-291 |
| Citation | 490 N.E.2d 764 |
| Parties | Roger EMBER and Jane Ember, Appellants (Plaintiffs), v. B.F.D., INC., Appellee (Defendant). |
| Court | Indiana Appellate Court |
Earl Raskosky, Fort Wayne, for appellants.
John F. Lyons, John M. Clifton, Jr., Thomas M. Kimbrough, Barrett, Barrett & McNagny, Fort Wayne, for appellee.
Plaintiffs-appellants Roger Ember (Ember) and his wife, Jane, appeal the trial court's entry of summary judgment in favor of defendant-appellee B.F.D., Inc., doing business as O'Sullivan's Italian Pub (the Pub), claiming the trial court erroneously found that the Pub did not breach any duty owed Ember when he was attacked and beaten by three assailants across the street from the Pub.
We reverse and remand.
The facts most favorable to the nonmoving party, as revealed by the pleadings and depositions before the trial court, show that the Pub is a corporation which began operating a tavern in July of 1978. The Pub is situated in an older, mixed residential and commercial neighborhood of Fort Wayne at the corner where Runnion Street deadends into Main Street. The building is surrounded by a sidewalk along both streets, and Main Street is also bounded by a sidewalk on the opposite side of the street from the Pub. In addition, there is a parking lot directly across Main Street from the Pub. The ownership of this lot is not established. Soon after opening, the Pub became known as the "hottest bar in town." Record at 48. As the crowds increased during the first months of business, the Pub received complaints from nearby residents and the local neighborhood association due to problems attributed to the Pub's patrons.
As related in his deposition, Todd M. Davis (Davis), a co-manager and shareholder indicated the complaints centered around instances of excessive noise, urination in the parking lot, bottle throwing, and "things that went along with the crowds" generated by the Pub's business. Record at 40. Davis knew of several instances of criminal activity on the streets adjacent to the building. The building next door to the tavern was broken into, and at least three or four cars were broken into while parked in the rear parking lots or on adjacent streets. Davis was also aware of at least five or six incidents of violence, both inside and outside the tavern.
After its first year of operation, the Pub experienced difficulty in renewing its liquor license. In the fall of 1979, the Pub supported its application for renewal with a letter to the Indiana Alcoholic Beverage Commission detailing the complaints against the Pub's operation and the solutions employed by the Pub owners to that date. The letter revealed that large trash cans were placed outside the tavern and that two youths were employed to pick up trash daily to alleviate the presence of bottles, cans, and other litter. To remedy parking problems, the existing parking lot behind the tavern was improved and warnings and citations were issued to illegally parked vehicles; furthermore, attempts to lease an adjoining lot were promised if parking problems continued. Enlargement of the restroom facilities and a police officer's presence outside the tavern deterred urination outside the building. The Pub employed two uniformed police officers, one stationed at the door and one to maintain order outside, to solve the excess noise problem. With regard to the officer posted outside, the letter to the Indiana Alcoholic Beverage Commission maintained that Record at 75 (emphasis supplied).
The Pub's letter also represented that a solution had been found to a complaint lodged against the Pub with the Ombudsman's Office, a city agency, and the Mayor of Fort Wayne. In response to the complaint the Pub's owners met with the neighborhood association and Mayor's office. As a result of that meeting, the Pub distributed this flyer in November, 1980:
"4 2 2 - 5 8 9 6
If something in the neighborhood is disturbing you or someone's property and you wish for O'Sullivan's to try to correct the problem . . . even if it doesn't pertain to us . . . we would be responsive and helpful if you will do the following:
CALL THE PUB AGAIN IF NO ACTION HAS CORRECTED THE PROBLEM WITHIN SEVERAL MINUTES
IF PUB LINE IS BUSY KEEP TRYING . . . WE TRY TO LIMIT USE OF OUR PHONE
Sometime during the next few days following an incident one of the owners of the Pub will contact you to see if the incident was resolved or if there is anything else that needs to be done . . . you may just wish to let us know how we handled it, etc. If we fail to do this simply call the pub and remind us to give you a report on it.
422-5896 422-5896 422-5896"
Record at 74 (emphasis supplied). Davis indicated that the written flyer was distributed "to the neighborhood association, anybody that wanted it." Record at 45 (emphasis supplied). Davis additionally assured the neighborhood residents:
"We told them that we would continue to do what we had been doing the entire time, and that was to have a police officer on duty in the evenings and to continue to do as we had always done, to walk around ourselves when we were working, at sporadic times, and check the parking lots in the area and so forth for any kind of thing that was happening."
Record at 46-47 (emphasis supplied). Indeed, the Pub maintained police and civilian patrols outside its premises due to its acknowledged adverse effect on the immediate neighborhood. Davis admitted that officers employed by the bar had, in fact, rendered assistance with problems in the neighborhood which occurred off the Pub's premises. "[T]here was one down the street, and it had nothing to do with us ... one of the police officers that worked for us handled it." Record at 43. This officer was posted at the door "and went outside to help with a neighborhood problem down the street." Record at 43.
The tavern employed off-duty police officers as security every night until the beginning of 1981, when the crowds began to decrease and security measures were curtailed. However, security was employed when bands were scheduled to appear or on certain holidays, such as St. Patrick's Day, when large crowds were anticipated. Although security was routinely expected to begin duty around 10:30 p.m., due to the large crowd expected on St. Patrick's Day, 1981, an off-duty police officer was hired to begin work at 8:00 p.m. In addition, Davis testified that he personally patrolled outside the building more than usual due to the crowds. The police officer reported late. At 8:00 p.m., Davis was the only person on patrol, and he was in the parking lot behind the Pub.
Ember, an off-duty policeman himself, arrived at the Pub at approximately 8:00 p.m. He was a regular patron of the establishment, visiting the tavern on a weekly basis. On this particular evening, Ember had arranged to meet his wife and another couple at the Pub to celebrate St. Patrick's Day. When Ember arrived, he observed a noisy crowd of twenty to thirty persons consuming alcoholic beverages outside the Pub while awaiting entry. The crowd was described as a line stretching around the side of the building. The Pub's only parking lot was located at the rear of the building. The Pub apparently did not own or lease any other parking lot in the area although patrons including Ember routinely used other business lots while frequenting the tavern. There is no indication in the record that other area businesses were open at the time in question. To obtain a vantage point so as to locate his wife and friends in the crowd, Ember parked his automobile straddling the sidewalk directly across Main Street from the Pub's entrance. As alleged in the complaint, Ember was about to cross the street to the tavern when three men approached Ember and began beating on his automobile. Record at 11. The trio then walked on toward their vehicle which was parked in the grass beyond the sidewalk at the end of the block. Ember left his automobile and approached the group approximately twenty feet away. Remarks by Ember's assailants during the ensuing argument indicate they believed Ember to be another regular patron of the tavern. In any event, the men attacked Ember, inflicting severe injuries which required hospitalization. The attack took place at or near the assailants' parked vehicle, and the assailants escaped. At the time of the initial confrontation, and during the attack, Davis was patrolling the Pub's rear parking lot and the off-duty police officer had not yet arrived for duty.
On November 6, 1981, Ember filed a complaint against the Pub alleging negligence; Jane also sought damages for loss of consortium. Based upon the pleadings and the depositions of Ember and Davis, the trial court rendered summary judgment in favor of the Pub concluding there was no genuine issue of material fact and the Pub "did not breach any duty" toward Ember. Record at 173-75.
One issue is raised for review:
Whether the trial court properly granted summary judgment on the theory that, as a matter of law, the Pub did not breach any gratuitously assumed duty to protect persons outside the Pub's premises?
PARTIES' CONTENTIONS--Ember argues the Pub's conduct constituted the gratuitous...
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