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Powell v. Stuber

Court of Appeals of Indiana

December 13, 2017

DaShawn Powell, Appellant-Plaintiff,
v.
Kevin Stuber d/b/a Bleachers Pub, Appellee-Defendant

         Appeal 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 Indianapolis, Indiana.

          Attorneys for Appellee Kevin W. Kearney Deneal M. Kushner Hunt Suedhoff Kalamaros, LLP South Bend, Indiana.

          Baker, Judge.

         [¶1] 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.

         Facts

         [¶2] 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.

         [¶3] 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.

         [¶4] On March 5, 2014, Powell filed a complaint against Bleachers and other parties, [1] 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.

         [¶5] 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.

         [¶6] 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 ...

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