Paragon Family Restaurant v. Bartolini, No. 45S03-0211-CV-608.

• Docket Nº: No. 45S03-0211-CV-608.
• Citation: 799 N.E.2d 1048
• Case Date: December 09, 2003
• Court: Supreme Court of Indiana

799 N.E.2d 1048

PARAGON FAMILY RESTAURANT, d/b/a Round the Corner Pub, Appellant (Defendant below),
v.
Mario BARTOLINI, Jr., Appellee (Plaintiff below)

No. 45S03-0211-CV-608.

Supreme Court of Indiana.

December 9, 2003.

799 N.E.2d 1051

Thomas A. Carton, Bullaro & Carton, Chtd., Munster, IN, James R. Branit, Bullaro & Carton, Chtd., Chicago, IL, Attorneys for Appellant

George T. Patton, Jr., Carrie L. Wagner, Bose McKinney & Evans, LLP, Indianapolis, IN, Barry D. Sherman, Kristen D. Hill, Barry D. Sherman & Assoc., Hammond, IN, Attorneys for Appellee.

799 N.E.2d 1049

799 N.E.2d 1050

DICKSON, Justice

The defendant, Paragon Family Restaurant, d/b/a Round The Corner Pub ("the Pub") appeals from a $280,000 jury verdict and judgment for the plaintiff, Mario Bartolini, arising from an assault on Bartolini by underage patrons of the Pub in its parking lot. The Court of Appeals affirmed in part, reversed in part, and remanded for a new trial. Paragon Family Restaurant v. Bartolini, 769 N.E.2d 609 (Ind.Ct.App.2002). We granted transfer, 783 N.E.2d 701 (Ind.2002), and now affirm the judgment of the trial court.

In its appeal, the Pub claims reversible error resulted from the denial of its motion for judgment on the evidence, from the denial of its motion to correct errors, and from the allegedly improper closing argument of plaintiff's counsel.

Motion for Judgment on the Evidence

At the close of Bartolini's evidence, the Pub moved for judgment on the evidence. Its motion was denied by the trial court. On appeal, the Pub contends that it was entitled to judgment on the evidence because of Bartolini's failure of proof on the elements of duty and proximate cause.¹

The applicable appellate standard for review is well-established:

It is axiomatic that in reviewing the trial court's ruling on a motion for judgment on the evidence the reviewing court must consider only the evidence and reasonable inferences most favorable to the nonmoving party. Judgment on the evidence in favor of the defendant is proper when there is an absence of evidence or reasonable inferences in favor of the plaintiff upon an issue in question. The evidence must support without conflict only one inference which is in favor of defendant. If there is any probative evidence or reasonable inference to be drawn from the evidence or if there is evidence allowing reasonable people to differ as to the result, judgment on the evidence is improper.

Sipes v. Osmose Wood Preserving Co., 546 N.E.2d 1223, 1224 (Ind.1989) (quoting Jones v. Gleim, 468 N.E.2d 205, 206-07 (Ind.1984)); see also Northern Indiana Public Service v. Sharp, 790 N.E.2d 462, 467 (Ind.2003); Kirchoff v. Selby, 703 N.E.2d 644, 648 (Ind.1998); Benante v. United Pacific Life Ins. Co., 659 N.E.2d 545, 547 (Ind.1995); and Clark v. Wiegand, 617 N.E.2d 916, 918 (Ind.1993).

The Pub first contends that Bartolini has failed to demonstrate that it owed him a duty because he did not present any evidence that Paragon had knowledge of any violent tendencies of Bartolini's assailants. It urges that serving an underage customer, or serving a customer beyond the point of intoxication, is not enough to

799 N.E.2d 1052

make the customer's commission of a criminal battery foreseeable.

Bartolini had been a customer of the Pub on the Friday night of the incident, arriving about 11:00 p.m. Approximately 1:00 a.m., Jeffrey Todd and John Mattull arrived at the Pub. Mattull was twenty-one but Todd was under twenty-one years of age, and the Pub did not check for identification. The Pub served beer to both Todd and Mattull. Todd had frequented the Pub on ten or fifteen prior occasions and his identification had never been checked. While in the Pub, Todd and Mattull appeared loud and obnoxious to at least one other patron, yelling several times. Todd testified that he and Bartolini "had words" in the Pub, and there may have been "high anxiety" between them. App. of Appellant at 100. At closing time, about 3:30 a.m., Bartolini left the bar with his female friend, and was walking her to her car in the Pub's parking lot. As Todd and Mattull left the Pub, one of them punched and knocked over a stop sign that was mounted in a tire or bucket of cement, and then Todd threw a bottle in the air which burst on the concrete. When Todd and Mattull got to the parking lot, they began taunting Bartolini. A waitress advised the Pub's bartender and night manager of the disturbance in the parking lot. The ensuing verbal altercation between Todd and Bartolini became physical. Employees of the Pub, including the bouncer, stood by for five or six minutes without doing anything as the argument escalated in the parking lot. The bantering included Todd's threat to Bartolini: "Look, buddy, we're going to get you. We're going to kill you, and if it ain't tonight or tomorrow, but we're going to kill you." App. of Appellant at 342. Eventually, Mattull lunged at Bartolini who fell to the ground, striking his head, and Todd and Mattull then both continued to viciously attack Bartolini. The bouncer eventually was able to pull Mattull away from Bartolini, but Todd continued kicking and hitting him. Bartolini suffered serious injuries.

Landowners have a duty to take reasonable precautions to protect their invitees from foreseeable criminal attacks. Delta Tau Delta v. Johnson, 712 N.E.2d 968, 973 (Ind.1999). In addition, we have observed that the duty of a business to exercise reasonable care extends to keeping its parking lot safe and providing a safe and suitable means of ingress and egress. Vernon v. Kroger Co., 712 N.E.2d 976, 979 (Ind.1999). We have further recognized that an individualized judicial determination of whether a duty exists in a particular case is not necessary where such a duty is well-settled. Northern Indiana Public Service v. Sharp, 790 N.E.2d 462, 465 (Ind.2003). Thus, there is usually no need to redetermine what duty a business owner owes to its invitees because the law clearly recognizes that "[p]roprietors owe a duty to their business invitees to use reasonable care to protect them from injury caused by other patrons and guests on their premises, including providing adequate staff to police and control disorderly conduct." Id., quoting Muex v. Hindel Bowling Lanes, Inc., 596 N.E.2d 263, 266 (Ind.Ct.App.1992). This duty only extends to harm from the conduct of third persons that, under the facts of a particular case, is reasonably foreseeable to the proprietor. Muex, 596 N.E.2d at 267.

In three cases handed down together four years ago, this Court held that the determination of whether a landowner owed an invitee a duty to take reasonable care to protect the invitee against a third party criminal attack requires consideration of the totality of the circumstances to determine whether the criminal act was reasonably foreseeable. L.W. v. Western

799 N.E.2d 1053

Golf Ass'n, 712 N.E.2d 983, 984-985 (Ind. 1999); Vernon, 712 N.E.2d at 979; Delta Tau Delta, 712 N.E.2d at 973. This analysis includes looking to "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 (holding incidents of isolated childish pranks and actions in college co-ed living facility, absent evidence of prior violent acts or sexual assaults, do not make rape foreseeable); Vernon, 712 N.E.2d at 980 (holding frequent shoplifting and physical confrontations with escaping shoplifters, plus frequent police runs to premises, shows reasonable foreseeability that a shopper might be injured by crime); and Delta Tau Delta, 712 N.E.2d at 974 (holding that prior instance and information regarding sexual assaults at fraternity house demonstrated reasonable foreseeability of a sexual assault). While the number, nature, and location of prior similar incidents are substantial factors, "the lack of prior similar incidents will not preclude a claim where the landowner knew or should have known that the criminal act was foreseeable." Id. at 973. We emphasized that "when the landowner is in a position to take reasonable precautions to protect his guest from a foreseeable criminal act, courts should not hesitate to hold that a duty exists." Id. at 974.

Upon the question of whether an individualized redetermination of duty is necessary where the general duty is otherwise well-settled, there is thus a procedural...