Winchell v. Guy, 90A02-0604-CV-346.

• Citation: 857 N.E.2d 1024
• Decision Date: 06 December 2006
• Docket Number: No. 90A02-0604-CV-346.,90A02-0604-CV-346.
• Parties: Sonya WINCHELL, Appellant-Plaintiff, v. Remco GUY, Ariel Graham and Fort Wayne Area Taco Bell Restaurant Owners Association, d/b/a Taco Bell, Appellee-Defendants.
• Court: Court of Appeals of Indiana

857 N.E.2d 1024

Sonya WINCHELL, Appellant-Plaintiff, v. Remco GUY, Ariel Graham and Fort Wayne Area Taco Bell Restaurant Owners Association, d/b/a Taco Bell, Appellee-Defendants.

No. 90A02-0604-CV-346.

Court of Appeals of Indiana.

December 6, 2006.

COPYRIGHT MATERIAL OMITTED

Samuel W. Jarjour, Fort Wayne, IN, Attorney for Appellant.

Daniel Cueller, The Miller Law Group, LLC, Indianapolis, IN, Attorney for Appellee.

OPINION

BARNES, Judge.

Case Summary

Sonya Winchell appeals the trial court's granting of a motion for summary judgment filed by Fort Wayne Area Taco Bell Restaurant Owners Association, d/b/a Taco Bell ("Taco Bell"). We reverse.

Issue

Winchell raises one issue, which we restate as whether the trial court properly concluded that she could not maintain a negligence action against Taco Bell.

Facts¹

At approximately 3:00 a.m., on February 3, 2000, a Thursday morning, Sonya Winchell was driving two of her friends through a Fort Wayne Taco Bell drive-thru. When Winchell arrived in line, there was one car in front of her at the speaker. Winchell noticed that the occupants of the car, Remco Guy and Ariel Graham, were taking a long time placing their order and that there were other cars in line behind her. Guy and Graham then got out of their car. At that point, Winchell yelled out her window, "can we get moving, we are hungry." App. p. 58. Guy approached Winchell's car, stuck his head in the window, and "started cussing everybody out." Id. Guy removed his head from the window, stuck it back in, and asked, "you got an F-ing problem?" Id. Winchell responded by "drill[ing] him in the nose." Id. Guy then pulled a gun out of his pants and shot Winchell. One of Winchell's passengers and other observers summoned police officers located at a nearby parking lot.

Winchell survived the shooting, and Guy was convicted of attempted murder. Winchell filed a civil action against Guy, Graham, and Taco Bell. The complaint against Taco Bell alleged negligence. On October 27, 2003, Taco Bell moved for summary judgment. Winchell responded. After a hearing, the trial court granted Taco Bell's motion. Winchell now appeals.

Analysis

Winchell argues that the trial court improperly granted Taco Bell's motion for summary judgment. When reviewing a grant or denial of summary judgment the standard of review is the same as the standard governing summary judgment in the trial court. Northern Indiana Pub. Serv. Co. v. Bloom, 847 N.E.2d 175, 180 (Ind.2006). We consider whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Id.; see also Ind. Trial Rule 56(C). "Summary judgment should be granted only if the evidence designated pursuant to Indiana Trial Rule 56(C) shows that there is no genuine issue of material fact and the moving party deserves judgment as a matter of law." Bloom, 847 N.E.2d at 180. All evidence must be construed in favor of the non-moving party, and all doubts as to the existence of a material issue must be resolved against the moving party. Id.

To prevail on a theory of negligence, Winchell must prove: 1) that Taco Bell owed her a duty; 2) that it breached the duty; and 3) that her injury was proximately caused by the breach. See Dennis v. Greyhound Lines, Inc., 831 N.E.2d 171, 173 (Ind.Ct.App.2005), trans. denied. In negligence cases, summary judgment is rarely appropriate because they are particularly fact sensitive and are governed by a standard of the objective reasonable person—one best applied by a jury after hearing all of the evidence. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.2004). Nonetheless, summary judgment is appropriate when the undisputed material evidence negates one element of a negligence claim. Id. at 385.

Here, the trial court concluded that Taco Bell established that it did not owe Winchell a duty. A trial court's findings and conclusions supporting its summary judgment order offer insight into the rationale of the trial court's judgment, but they are not binding upon us. Cox v. Northern Indiana Pub. Serv. Co., 848 N.E.2d 690, 695 (Ind.Ct.App.2006). Instead, we will affirm on any theory or basis supported by the designated materials. Id.

The parties first dispute whether Taco Bell owed a duty to Winchell. Whether a defendant owes a duty of care to a plaintiff is a question of law for the court to decide. Northern Indiana Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind.2003). Both parties appear to agree that the starting point for determining whether a duty exists is Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048 (Ind.2003), in which a bar patron was beaten in the bar parking lot by another patron.

In Bartolini, our supreme court addressed whether the trial court properly denied Paragon's motion for judgment on the evidence because Bartolini failed to prove the elements of duty and proximate cause. Id. at 1051. Our supreme court initially stated:

Landowners have a duty to take reasonable precautions to protect their invitees from foreseeable criminal attacks. 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. 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. 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." 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.

Id. (alterations in original, citations omitted). The court acknowledged that whether the criminal act of a third party was reasonably foreseeable was determined by the totality of the circumstances surrounding the event, including the nature, condition, and location of the land and prior similar incidents. Id. at 1052-53.

Importantly, the court recognized that whether an individualized redetermination of duty was necessary where the general duty was otherwise well-settled had been the subject of procedural inconsistency. Id. at 1053. The court stated, "There is no doubt, however, that reasonable foreseeability is an element of a landowner or business proprietor's duty of reasonable care. The issue is merely at what point and in what manner to evaluate the evidence regarding foreseeability." Id. The court stated:

Where, as in this case, the alleged duty is well-established, there is no need for a new judicial redetermination of duty. The court's function was merely to adequately inform the jury of the applicable duty, and the jury was then to determine whether [Paragon] breached this duty of reasonable care to protect its invitees from foreseeable criminal attacks.

Id. The court concluded that the disputed evidence regarding the events of the night in question were irrelevant to the trial court's denial of the motion for judgment on the evidence and were matters for the jury to evaluate in determining whether Paragon "breached its duty to exercise reasonable care to protect Bartolini from reasonably foreseeable intentional acts of other persons on its premises." Id. at 1053-54.

Since our supreme court decided Bartolini, this court has attempted to apply its holding to a case where a teenage boy in an emergency room waiting room walked up to another patient in the waiting room and began hitting her on the arm and shoulder. Lane v. St. Joseph's Reg'l Med. Ctr., 817 N.E.2d 266, 268 (Ind.Ct.App. 2004). In determining whether summary judgment was proper, the Lane court considered two possible readings of Bartolini. Id. at 272. In the first, the court observed that Bartolini could be read to mean that reasonable foreseeability exists because the criminal attack occurred. Id. It went on to discount this reading because the result would hardly seem logical in that it would suggest that every criminal act which occurs would be foreseeable, and all landowners and proprietors would automatically be subject to liability. Id. The Lane court also suggested that Bartolini meant that the facts did not actually establish the duty but allowed for its application. Id. In other words:

the duty to protect business invitees from criminal acts of third parties has always existed and business proprietors owe that duty to invitees regardless of whether a criminal act has ever occurred. However, that conclusion should not be read so broadly to encompass all business proprietors. Rather, any conclusion that a duty is owed to protect patrons from criminal acts of third parties must include the consideration of whether the acts were foreseeable. Effectively, while one may expect that a criminal act would occur at a bar and that some precautions should be taken to protect patrons, one would not reasonably expect that a criminal attack would occur in a doctor's office. Thus, a doctor's office would not generally have the duty to maintain security measures to protect its patients.

Id. The Lane court concluded, "the existence of a duty is well-settled when one would expect that a criminal act of third party is likely to occur on the premises." Id. at 273.

Although we appreciate the ambiguity in Bartolini and Lane court's interpretations, we conclude that the Lane court's second reading of Bartolini, the reading it adopted, requires a court to perform an individualized determination of whether a duty exists where one is already well-settled. This approach was clearly rejected in Sharp, in which our supreme court observed that the three-part balancing test² articulated in Webb v. Jarvis, 575 N.E.2d 992,...