Vernon v. Kroger Co.
| Decision Date | 03 August 1995 |
| Docket Number | No. 50A04-9404-CV-153,50A04-9404-CV-153 |
| Citation | 654 N.E.2d 24 |
| Parties | Robert VERNON, Appellant (Plaintiff Below), v. The KROGER COMPANY, a corporation, LaSalle Square Associates, and Indiana Limited partnership, Lavon R. Blankenbaker, General Partner, Waldemar Hefner Associates, and Indiana Limited Partnership, Thomas L. Hefner, General Partner, Dwain F. Bower and Richard L. Johnson, Limited Partners, B.J. Realty, Inc., Garry B. Lindboe, and Vincent W. Todd, Appellees (Defendants Below). |
| Court | Indiana Appellate Court |
Robert Vernon appeals the trial court's having granted the respective motions for summary judgment of defendant The Kroger Company and defendants B.J. Realty, Inc., Garry B. Lindboe and Vincent W. Todd. We affirm.
About 6:30 p.m. on December 6, 1987, Robert Vernon ("Vernon") stopped at the LaSalle Square Shopping Center 1 in South Bend in order to purchase several items at the Kroger store ("Kroger"). Vernon parked his automobile in the shopping center parking lot. He walked from his car toward the store. He noticed a large, older car with a driver and two occupants which was parked immediately in front of the Kroger entrance, blocking the handicap ramp leading from the pavement onto the sidewalk. Vernon completed his shopping in about ten minutes and exited the store, observing the same vehicle in the same location.
Vernon walked to his car in the parking lot, started it, and began to drive toward the lane alongside the parked car--into which he would turn left to proceed to his desired exit. As Vernon drove toward the parked car, he observed a man exit Kroger, remove items from his coat, and throw them onto the seat of the parked car. This man entered the car, and Vernon saw all four occupants looking down at the items the man had placed on the seat. Vernon was watching the car and driver, because he had to turn in front of the car. Seeing no indication that the car would move forward in the exit lane, Vernon began turning, moving into the lane. Meanwhile, the driver of the other car stepped on the gas without looking up and ran into the front passenger side of Vernon's car.
Vernon lowered his passenger side window and informed the occupants of the other car that there would be no problem because he had full insurance. He heard someone in the other car say they did not want the police involved; he heard another say they should just leave; and someone said that if they just took off, their license number might be noted. Vernon then saw the man in the passenger seat ease out of the car and move, crouching, around the front of his car. Vernon remembers little of the next sequence of events, except that he was being beaten and ended up on the pavement. The record indicates the beating was committed by two men from the other car. 2 The car then drove away.
On December 5, 1989, Vernon filed his complaint alleging a breach of the "implied warranty of reasonable safety" and breach of the "duty to maintain and operate the shopping center in a reasonably safe condition" against The Kroger Company and the owners of the shopping center--B.J. Realty, Garry B. Lindboe, and Vincent W. Todd (hereafter, "Realty"). (R. filed January 3, 1995, 3 at 16-17). Kroger filed a cross-claim against Realty, citing a clause in the lease between Kroger and the landlord providing that any claim arising from or out of the injury of any person while on a common area shall be the responsibility of the landlord and that the landlord agrees to carry ample insurance to protect the landlord and tenant against such claims. Although the record submitted by Vernon does not contain the defendants' answers to his complaint, 4 a Vernon motion refers to their non-party defenses naming Vernon's assailants Calvin Carter and Kevin Carter as non-parties. Vernon moved for partial summary judgment as to the non-party defenses in September, 1993.
Then, in November, 1993, Kroger and Realty filed motions for summary judgment. Kroger asserted the lack of a genuine issue of material fact as to: 1) whether Kroger owed Vernon a duty of care under the circumstances; and 2) whether any action or inaction on the part of Kroger proximately caused the injuries suffered by Vernon, stating that:
[w]hile the plaintiff's beating in the vicinity of a Kroger's store forms the centerpiece of the claims plaintiff asserts in this case, Kroger's had nothing whatever to do with either the beating; or the collision of automobiles which preceded it; or the shopping mall parking lot where both the collision and beating took place.
(R. filed June 13, 1994, at 79). According to Realty's motion, the lack of evidence that the landlord was on notice of any criminality in the form of crimes against persons on the parking lot precluded finding that the shopping center landlord had a duty to provide parking lot security. Realty's memorandum in opposition responded to additional arguments propounded by Vernon in his motion for partial summary judgment which asserted his status as a third-party beneficiary to the provision in the shopping center lease. Vernon filed his opposition to defendants' motions. The court held oral argument on the motions, and entered summary judgment for Kroger and Realty on January 10, 1994. The court cited Welch v. Railroad Crossing, Inc., (1986), Ind.App., 488 N.E.2d 383 as "controlling" when it held that "the defendants violated no duty that they owed to the customer Robert Vernon." (R. filed June 13, 1994, at 205).
On appeal from the grant of summary judgment, "we apply the same standard applicable in the trial court." Malachowski v. Bank One, Indianapolis (1992), Ind., 590 N.E.2d 559, 562 (citing Webb v. Jarvis (1991), Ind., 575 N.E.2d 992). This means that:
[W]e must consider the pleadings and evidence sanctioned by Ind.Trial Rule 56(C) without deciding its weight or credibility. Id. Rational assertions of fact and reasonable inferences therefrom are deemed to be true. Id. Any doubt about the existence of a fact or the inference to be drawn from it is to be resolved in favor of the nonmoving party. Id. Only if such evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law should summary judgment be affirmed. Id.
Vernon's claim against Kroger and Realty sounds in negligence. Therefore, to recover Vernon must establish three elements:
(1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff, (2) failure of the defendant to conform his conduct to the requisite standard of care required by the relationship, and (3) an injury by the plaintiff proximately caused by the breach.
Webb v. Jarvis, 575 N.E.2d at 995. The existence of duty, i.e., whether the law recognizes any obligation on the part of a particular defendant to conform his conduct to a certain standard for the benefit of the plaintiff, is a question of law. Id. To impose a duty at common law, the court must balance three factors: the relationship between the parties, the reasonable foreseeability of harm to the person injured, and public policy concerns. Id. As we stated in the case cited by the trial court, "It is axiomatic that a defendant must have a duty to protect the injured party from harm before the defendant can be held liable." Welch v. Railroad Crossing, Inc., 488 N.E.2d at 387.
Vernon argues that both Kroger and the landlord "had reason to know" that shoplifters frequented the Kroger store and "that many shoplifters frequenting this particular store become violent and pose[ ] a general threat to the safety of other patrons." Vernon's Brief at 15. Further, "defendants should foresee that an intercepted shoplifter would engage in a violent criminal act." Id. at 16. And defendants had a "duty to provide a reasonably safe place for Vernon to not only shop but for Vernon to exit." Id. at 18. Hence, Vernon bases his arguments for imposing a duty on Kroger and its landlord upon the foreseeability of his being beaten.
Vernon suggests the instant circumstances require us to follow Bearman v. University of Notre Dame (1983), Ind.App., 453 N.E.2d 1196, and Ember v. B.F.D. (1986), Ind.App., 490 N.E.2d 764, rather than Welch, supra. In Bearman, the plaintiff:
was injured in the parking lot of the Notre Dame football stadium when an intoxicated man unintentionally fell into her from behind, knocking her to the ground, as she was returning to her car after the game. Following the incident, Bearman sued the University of Notre Dame for damages alleging that she was a business invitee of Notre Dame, and therefore, Notre Dame owed her a duty to protect her from injury caused by the acts of other persons on the premises. At trial, after the close of all evidence, the trial court granted Notre Dame's motion for judgment on the evidence finding that Bearman had failed to show that Notre Dame owed her a duty of reasonable care. On appeal, we reversed and held that Notre Dame did have a duty to take reasonable precautions to protect those who attended the football games from injury caused by the acts of third persons.
Motz v. Johnson, (1995), Ind.App., 651 N.E.2d 1163, 1166-67. As we found in Motz, the circumstances differ: "Mrs. Bearman was injured when an intoxicated man unintentionally fell into her from behind;" but the assault by Motz "was an act of volition, and the injuries inflicted ... were the intended result of his deliberate design;" and the beating of Vernon was, likewise, "an act of volition, and the injuries inflicted ... were the intended result of" the...
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