Vernon v. Kroger Co.

• Decision Date: 12 July 1999
• Docket Number: No. 50S04-9907-CV-380.,50S04-9907-CV-380.
• Citation: 712 N.E.2d 976
• Parties: Robert VERNON, Appellant (Plaintiff Below), v. The KROGER COMPANY, a corporation, Lasalle Square Associates, an Indiana Limited Partnership, Lavon R. Blankenbaker, General Partner, Waldemar Hefner Assoc., an Indiana Limited Partnership, Thomas L. Hefner, General Partner, Dwain F. Bower, Richard L.Johnson, Limited Partners, B.J. Realty, Inc., Garry B. Lindboe, and Vincent W. Todd, Appellees (Defendants Below).
• Court: Indiana Supreme Court

712 N.E.2d 976

Robert VERNON, Appellant (Plaintiff Below), v. The KROGER COMPANY, a corporation, Lasalle Square Associates, an Indiana Limited Partnership, Lavon R. Blankenbaker, General Partner, Waldemar Hefner Assoc., an Indiana Limited Partnership, Thomas L. Hefner, General Partner, Dwain F. Bower, Richard L.Johnson, Limited Partners, B.J. Realty, Inc., Garry B. Lindboe, and Vincent W. Todd, Appellees (Defendants Below).

No. 50S04-9907-CV-380.

Supreme Court of Indiana.

July 12, 1999.

Gregory Ball, Paul Kusbach Attorneys, South Bend, Indiana, Attorneys for Appellant.

John C. Hamilton, John E. Doran, Doran, Blackmond, Ready, Hamilton & Williams, South Bend, Indiana, Attorneys for Appellee, The Kroger Company.

R. Kent Rowe, Steven D. Groth, Rowe & Rowe, South Bend, Indiana, Attorneys for Appellees, B.J. Realty, Inc., Gary B. Lindboe, and Vincent Todd.

ON CIVIL PETITION FOR TRANSFER

SELBY, J.

Appellant Robert Vernon ("Vernon") brings this appeal of an adverse summary judgment ruling in a negligence action. This case is one of three that we decide today on the common premises liability issue of whether a landowner/invitor ever owes an invitee a duty to take reasonable care to protect the invitee from the criminal acts of a third party. Vernon filed a complaint against the Kroger company ("Kroger") and B.J. Realty for damages he sustained after he was assaulted in a parking lot owned by B.J. Realty and in front of a Kroger store. Both Kroger and B.J. Realty filed motions for summary judgment on the grounds that no duty was owed to Vernon and, in the alternative, that any actions taken by defendants were not the proximate cause of the injury. After oral argument, the court entered summary judgment for both Kroger and B.J. Realty on the grounds that no duty existed. Vernon appealed the trial court's decision to the Court of Appeals, and the Court of Appeals affirmed. Vernon v. Kroger, 654 N.E.2d 24 (Ind.Ct.App.1995). Vernon then filed a petition for transfer with this Court. We now grant transfer to address the following issues: (1) whether summary judgment should be denied on the issue of duty; (2) whether the trial court acted within its discretion by denying defendants' motions to strike certain evidence; and (3) whether a motion by Vernon for partial summary judgment should be granted. We answer the first two issues in the affirmative and remand to the trial court for consideration of the remaining issues.

FACTS

On the evening of December 6, 1987, Vernon went to the Kroger¹ store near his house in South Bend, Indiana, in order to buy a paper and some candy. Vernon parked his car in the parking lot beside the Kroger store. As Vernon was walking up to the sidewalk in front of Kroger's entrance, he noticed that a car was parked in front of the store and was blocking the handicap access ramp. Vernon saw three people inside of the car. Vernon had to walk around the car in order to get onto the sidewalk and into the store. A little more than ten minutes later, Vernon exited the Kroger store. The car with the three people was still parked in the same place in front of the store. The passengers in the car were laughing at people who had to avoid them in order to get to the parking lot. Vernon went to his car and began to exit from the parking lot.

Vernon was in a line of cars waiting to exit the parking lot, and each car had to turn by the parked car in order to exit. Each driver, before turning to exit, would look at the parked car in order to determine whether it was going to move or not. When it was Vernon's turn to move by the parked car, he saw a man come out of the Kroger store, take some things from inside pockets of his coat, throw the goods on the seat of the car, and get into the car. Vernon, believing that the car was not going to move because the occupants were looking at the goods in the car, started to turn in front of the parked car. At the same time and without looking, the driver of the other car started to drive and ran into the side of Vernon's car.

Vernon rolled down his window so that he could tell the driver of the other car that there was no problem because Vernon was insured. Vernon heard one of the men in the car suggest that they go because they did not want the police to come, but another said that, if they left, then Vernon would get their license plate number. Vernon saw the man in the front passenger side get out of the car, crouch down, and sneak around the front of the car. The next thing Vernon remembers is that he was out of his car and that he was hit across the face with a metal bar. Vernon fell to the ground and was beaten and kicked. He lost consciousness and woke up in the hospital. A Kroger employee saw the license plate number of the assailants' car as it drove away and gave it to the police. The assailants, two brothers, were later apprehended.

DISCUSSION

I.

Vernon brought a negligence action against both Kroger and B.J. Realty for the damages which he sustained due to the attack. Vernon alleged that defendants had a duty to keep the parking lot safe from foreseeable criminal attacks, that defendants breached this duty, and that the breach proximately caused his injuries. As was true in the two other cases decided today, Delta Tau Delta v. Johnson, 712 N.E.2d 968 (Ind.1999) and L.W. v. Western Golf Ass'n, 712 N.E.2d 983 (Ind.1999), defendants filed motions for summary judgment on the issue of duty. In this case, the trial court granted the motions. The issue before us in this case, like the other cases, is whether the trial court properly ruled on the issue of duty.

This issue revolves around whether defendants owed plaintiff a duty to take reasonable care to protect plaintiff from the criminal attack of a third party. Though not argued by either party, it bears note that Vernon was an invitee of both Kroger and B.J. Realty. First, Vernon was injured while leaving the store where he had shopped. As such, he was an invitee of Kroger, and an invitor's duty to exercise reasonable care extends to providing a safe and suitable means of ingress and egress for the invitee. See Lutheran Hosp. of Indiana, Inc. v. Blaser, 634 N.E.2d 864, 868-69 (Ind.Ct.App.1994)

. Second, Vernon was injured in a parking lot which is owned by B.J. Realty and in which Vernon parked so that he could use a store in the shopping center owned by B.J. Realty. As such, he was an invitee of B.J. Realty and B.J. Realty owed Vernon a duty of reasonable care to keep the area safe.²

See Markle v. Hacienda Mexican Restaurant, 570 N.E.2d 969, 975 (Ind.Ct.App.1991).

At this point, we confront the common question of the three opinions decided today: whether Kroger and B.J. Realty owed an invitee a duty to take reasonable care to protect against a third party criminal attack. As announced in Delta Tau Delta v. Johnson, a court answers this question by asking whether the totality of the circumstances demonstrates that the criminal act was reasonably foreseeable. 712 N.E.2d at 973. When determining whether the totality of the circumstances supports the imposition of a duty, a court must look to "all of the circumstances surrounding an event, including the nature, condition, and location of the land, as well as prior similar incidents, to determine whether a criminal act was foreseeable." Id. at 972. "A substantial factor in the determination of duty is the number, nature, and location of prior similar incidents, but 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. While landowners have no duty to insure invitees' safety, they do have a duty to take reasonable precautions to prevent foreseeable criminal acts against invitees.

The record discloses the following relevant evidence. First, shoplifting was not an unusual occurrence at the Kroger store; it was enough of a problem that Kroger employed off-duty police officers to patrol the store and deter shoplifters. Second, several employees of Kroger testified in their depositions that some shoplifters would have a car waiting at the curb for a quick getaway. Third, several Kroger personnel and security guards testified in their depositions that they had witnessed shoplifters use physical force when stopped as they were attempting to escape. One employee, who had been an employee at the LaSalle Square Kroger since it opened, testified that about five to ten percent of the shoplifters would use physical force if stopped as they were trying to escape. Another employee, a police officer who worked part-time as a security guard at Kroger, testified that "probably four of ten would probably in some way, shape, or form, try to physically resist besides running. They'd either pull away, swing at you. I've lost my radio before; my gun fell out of my holster before, where it came to a physical confrontation." (R. at 140-45.) Furthermore, several other police officers who worked part time as security guards at Kroger and a manager testified about physical confrontations with shoplifters whom they had stopped. Fourth, several Kroger employees testified to criminal occurrences outside of the store in the parking lot. For example, an employee testified that, "Every so often, you would get a purse snatching. Muggings, purse snatching-wise, that happened." (R. at 444.) Finally, the record contains evidence of police runs made to the Kroger store address.³ This evidence shows that the police made 19 runs for crimes of violence between the years 1985 and 1987 and that police runs for battery and shoplifting increased from 22 in 1986 to 59 in 1987.

As a whole, the evidence shows that Kroger could reasonably foresee that a shopper might be injured by crime while shopping in or around the Kroger store and, thus, is sufficient to hold that a duty exists. While criminal activity may not have been an everyday occurrence at and around the Kroger store in LaSalle...