Welch v. Railroad Crossing, Inc., 2-484-A-119
| Decision Date | 04 February 1986 |
| Docket Number | No. 2-484-A-119,2-484-A-119 |
| Citation | 488 N.E.2d 383 |
| Parties | Mary Elizabeth WELCH, Appellant (Plaintiff), v. RAILROAD CROSSING, INC., Appellee (Defendant). |
| Court | Indiana Appellate Court |
Thomas N. Eckerle, Deborah J. Caruso, Dale, Eckerle and Eke, John M. Choplin, II, Peter A. Schroeder, Norris, Choplin and Johnson, Indianapolis, for appellant (plaintiff).
R. William Irwin, Stephen J. Peters, Stewart, Irwin, Gilliom, Fuller and Meyer, Indianapolis, for appellee (defendant).
Plaintiff-appellant, Mary Elizabeth Welch (Welch), appeals from a final judgment entered on a directed verdict in favor of the defendant-appellee, Railroad Crossing, Inc. (Railroad Crossing), in her action for personal injuries, in which she alleged that Railroad Crossing, as the operator of a tavern, failed to protect her from a criminal assault. Welch contends that the trial court's decision to grant the Railroad Crossing's motion for judgment on the evidence 1 at the close of her case-in-chief was contrary to law and that the trial court erred by excluding certain evidence offered by her.
We affirm.
As this case was taken from the jury on the Railroad Crossing's motion for judgment Railroad Crossing is a food-serving tavern in Tipton, Indiana. On Friday evening, September 18, 1981, a band was scheduled to perform, and a large crowd was expected. Welch and a friend, Randy McDaniel (McDaniel), arrived at the tavern at approximately 9:30 p.m. Welch was only eighteen years old, but was allowed to enter the bar because she presented a fraudulent Indiana identification card. The I.D. card bore her picture, but listed her name as Mary E. Walsh and indicated her age as twenty-one years old. 2
on the evidence, we relate only the evidence most favorable to Welch, the non-movant.
At trial, Welch admitted that she had falsified her name and date of birth when she obtained the fraudulent card. During the course of the evening, Welch danced or sat in a booth drinking alcoholic beverages and socializing with McDaniel, Rick Lovell (Lovell), and others. At approximately 1:15 a.m., Welch was advised that the zipper on her blue jeans was broken. She told friends that she was going to her car to obtain a change of jeans. She also advised the doorman, Dan Tragessor (Tragessor), of her intention as she left the bar. Although they did not appear to be leaving together, Lovell also left the bar only a few steps behind Welch. Welch obtained the jeans from her car and was returning to the bar via the public sidewalk in front of the Railroad Crossing when she was confronted by Lovell at the northern corner of the building. Welch testified that Lovell prevented her from returning to the bar and began calling her obscene names. Welch was frightened by Lovell's threatening manner and attempted to retreat across a grassy area owned by the Railroad Crossing. Lovell, however, pursued her and viciously attacked her with a knife. Welch tried to run away, but collapsed as a result of the severity of her injuries which were extensive, disfiguring, and nearly fatal. The last thing Welch remembered before she lost consciousness was seeing Lovell walk around the corner of the building.
Approximately twenty-five minutes after he had seen Lovell follow Welch out, McDaniel saw Lovell return to the bar. Concerned that Welch had not returned, McDaniel decided to look for her. He found her unconscious behind the Railroad Crossing building. The area in which Welch was found was not actually owned by Railroad Crossing. It was, however, located immediately behind the building and adjacent to the Railroad Crossing's property. In addition, there was evidence that the Railroad Crossing had exercised some form of control over some portion of the area in which Welch was found. Thus, it appears that the confrontation began on the public sidewalk, that it escalated as the two crossed the grassy area owned by the bar, and that it culminated with Welch's collapse immediately behind the building.
Lovell had arrived at the Railroad Crossing at approximately 7:30 p.m. on the evening of the attack. At about 8:30 p.m., Lovell left the bar to go to a nearby liquor store and returned with a bottle of champagne. Lovell asked the manager, David Bruce Jones (Jones), to chill the champagne for him, explaining that it was for a friend's birthday celebration later in the evening. Jones agreed to do so. Later, Lovell retrieved the champagne and drank it on the premises. In allowing Lovell to carry in and consume the champagne on its premises, the tavern presumably committed a violation of Ind.Code 7.1-5-8-4 (1982). 3 Over the course of the evening, in addition to the champagne, Lovell drank at least six mixed drinks and an unknown While Lovell was characterized as looking somewhat out of place in the bar due to the tattoos on his arms, the leather cap he wore, and the pocketknife he wore in a carrier on his belt, he was no stranger to the bar. There was evidence that Lovell had been in the bar at least ten times prior to the evening of the attack. There was, however, no evidence that Lovell had ever caused any type of disturbance in or around the bar prior to his attack, or that the employees of the bar had any knowledge or reason to believe that Lovell might become violent when under the influence of alcohol. Tragessor testified that he saw the carrier on Lovell's belt and assumed that it contained a knife, but "didn't really pay a lot of attention to it." Record at 1030. Jones was not aware that Lovell was wearing a pocketknife but testified: "that's nothing special." Record at 1012. He went on to testify that a lot of people wear pocketknives like Lovell's on their belts because they use them in their work and that customers had come in wearing such knives on several occasions. Record at 1012, 1021. Moreover, Lovell did not remove his pocketknife from its carrier while in the bar, and he made no threats to anyone; nor was he bellicose or even boisterous or unruly. Rather, Lovell sat in the same booth with Welch much of the evening and danced with her at least twice.
quantity of beer. According to some of Welch's witnesses, Lovell was visibly quite intoxicated. While there was a considerable amount of credible evidence which tends to contradict the conclusion that Lovell was visibly intoxicated, in considering only the evidence favorable to Welch, we must assume that Lovell was visibly intoxicated and that he was served additional drinks while in this condition. 4
Prior to Lovell's assault, the Railroad Crossing's history as a site of violent activity was composed of the following three altercations. Peter Cleveland (Cleveland) testified that he was a patron in the Railroad Crossing when two or three patrons spontaneously jumped up and broke bottles on the table where they were sitting. He further testified: "That's about the extent of the fight, I believe, it was stopped at that point." Record at 1106. This incident occurred at least one year prior to Lovell's attack. Elizabeth Elaine Lovell (Elizabeth), the assailant's wife, testified that she had been to the Railroad Crossing probably ten times and had witnessed two fights outside the tavern. The first began inside as an argument between a man and a woman. The arguing couple left the bar, proceeded across the street, and began fighting. The second involved two men fighting in front of the tavern. Both of these fights occurred approximately three years prior to Lovell's assault on Welch. The record contains no additional details of any of these three altercations, nor does it contain evidence of any other violent activity at the tavern.
Welch commenced this action against Railroad Crossing to recover damages for her injuries. 5 Her action was premised on two theories. First, she alleged that the Railroad Crossing had negligently performed its common law duty to protect her from Lovell's criminal attack and, second, that the bar's statutory violations constituted negligence per se. These acts of negligence, she complained, were the proximate cause of her injuries. At the close of her case-in-chief, the Railroad Crossing moved for judgment on the evidence. The court granted this motion, directed the jury to render a verdict in favor of the Railroad Crossing, and entered a final judgment thereon.
On appeal, Welch attacks the trial court's decision to grant the motion for judgment on the evidence and also argues the court erred in excluding certain evidence tendered by her.
The critical underlying questions dispositive of the various issues as presented in Welch's brief can be more succinctly restated as follows:
1. Did the Railroad Crossing owe Welch a common law duty to protect her from Lovell's criminal assault?
2. Whether the Railroad Crossing's statutory violations were the proximate cause of Lovell's attack and Welch's injuries?
3. Did the trial court abuse its discretion by excluding certain evidence tendered by Welch?
ISSUE ONE--Did the Railroad Crossing owe Welch a common law duty to protect her from Lovell's criminal assault?
PARTIES' CONTENTIONS--Welch contends that traditional premises liability concepts do not apply to her case because criminal attacks by an intoxicated patron, even attacks against a non-patron off the tavern's premises, are a natural and foreseeable danger created by a tavern's sale of alcoholic beverages. Consequently, she argues, the law imposes a duty on tavern owners to protect even members of the public at large from assaults by their patrons.
The Railroad Crossing responds that it owed Welch no common law duty because she was a trespasser. It further contends that even if traditional premises liability concepts are not applied, it still owed her no duty because Lovell's attack was an entirely unforeseeable event.
CONCLUSION--The Railroad Crossing owed Welch no common law duty to protect her from Lovell's criminal assault.
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