from the St. Joseph Superior Court The Honorable Jenny Pitts
Manier, Judge Trial Court Cause No. 71D05-1403-CT-44
Attorney for Appellant Stacy L. Kelley Glaser & Ebbs
Attorneys for Appellee Kevin W. Kearney Deneal M. Kushner
Hunt Suedhoff Kalamaros, LLP South Bend, Indiana.
DaShawn Powell filed a negligence claim against Kevin Stuber
d/b/a Bleachers Pub (Bleachers) after Powell was attacked in
the parking lot outside of Bleachers and sustained injuries
as a result. After our Supreme Court decided Goodwin v.
Yeakle's Sports Bar and Grill, Inc., 62 N.E.3d 384
(Ind. 2016), the trial court reopened the deadline for
dispositive motions and Bleachers moved for summary judgment.
The trial court granted the motion, finding, pursuant to
Goodwin, that Bleachers did not owe a duty to
Powell. Powell appeals, arguing that the trial court should
not have reopened the deadline for dispositive motions or
granted summary judgment in favor of Bleachers. Finding no
error, we affirm.
On July 31, 2012, around 1:30 a.m., Powell drove to Bleachers
in Mishawaka to play pool with a friend. Around 2:30 a.m.,
Powell left Bleachers and walked to his vehicle in the
parking lot. Someone called out to Powell; he turned in the
direction of the voice and was struck from behind by someone
else. The assailants hit him, stole the keys to his vehicle,
stole his wallet, and ran away. Powell did not notify anyone
at Bleachers of the incident; instead, he got into his
vehicle and talked to his girlfriend on the phone.
About five to ten minutes later, still sitting in his
vehicle, Powell noticed that the vehicle's lights were
flashing and the locks had been activated. One of the
assailants opened the vehicle door, and Powell hit him. The
assailants fled to another vehicle and Powell pursued them,
grabbing the other vehicle and trying to reclaim his keys.
The driver put the vehicle in reverse and the mirror struck
Powell. He again grabbed onto the vehicle. The driver then
drove away, running over Powell in the process. Powell
sustained serious injuries, including a ruptured bladder,
when the other driver ran over him.
On March 5, 2014, Powell filed a complaint against Bleachers
and other parties,  seeking damages for his injuries that he
alleges were caused by Bleachers's negligence. The trial
court eventually set a dispositive motion deadline of
February 12, 2015; that deadline was later reset to August 4,
2015, by agreement of the parties. The trial had been set for
May 12, 2016, but the trial court rescheduled the trial for
July 26, 2016, because of a conflict with a criminal matter.
At Powell's request, the trial court again continued the
trial to October 12, 2016; that trial date was vacated for
reasons not revealed by the Chronological Case Summary.
Appellant's App. Vol. II p. 12.
On November 1, 2016, Bleachers notified Powell of our Supreme
Court's recent ruling in Goodwin and its
possible effect on this case. On November 2, 2016, Bleachers
filed a motion to reopen the dispositive motion deadline
based on Goodwin. The trial court granted the motion
to reopen the dispositive motion deadline.
On December 28, 2016, Bleachers filed a motion for summary
judgment. Following briefing and a hearing, the trial court
granted the motion on February 21, 2017, finding, in
pertinent part, as follows:
Plaintiff's status on Defendant's premises was as an
invitee. The broad classification of plaintiff properly
assigned to Plaintiff is a patron of a bar.
The type of harm to which Plaintiff was exposed is the
likelihood of criminal attack.
As an invitee, Plaintiff was owed a duty of reasonable care
by Defendant, including the duty to take reasonable
precautions to protect him ...