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Hamilton v. Steak'n Shake Operations Inc.

Court of Appeals of Indiana

March 7, 2018

Amber Hamilton, Appellant-Plaintiff,
v.
Steak'n Shake Operations Inc., Appellee-Defendant

         Appeal from the Marion Superior Court Trial Court Cause No. 49D01-1308-CT-30340 The Honorable Heather A. Welch, Judge

          Attorneys for Appellant Richard A. Cook Bryan C. Tisch Yosha Cook & Tisch Indianapolis, Indiana

          Attorney for Amicus Curiae Indiana Trial Lawyers Association Gabriel A. Hawkins Cohen & Malad, LLP Indianapolis, Indiana

          Attorneys for Appellee Lisa M. Dillman Thomas C. Hays Barath S. Raman Lewis Wagner, LLP Indianapolis, Indiana

          Attorneys for Amicus Curiae Defense Trial Counsel of Indiana Lucy R. Dollens Jacob V. Bradley Quarles & Brady LLP Indianapolis, Indiana

          Altice, Judge.

         Case Summary

         [¶1] Amber Hamilton was shot in the face during an altercation that transpired after a group of individuals entered the Steak 'n Shake restaurant where she was eating and verbally threatened and taunted her and her brother over a period of approximately thirty minutes. Steak 'n Shake employees witnessed the escalation of threats and verbal abuse, but did not take action until it seemed that a physical altercation was imminent, at which point the acting manager told the group they needed to leave the premises. Moments later, the altercation turned physical inside the Steak 'n Shake, at which time, the Steak 'n Shake employees summoned help. Hamilton was shot less than a minute later.

         [¶2] Hamilton filed a complaint alleging that Steak 'n Shake was negligent for failing to protect her from the criminal act of another. Steak 'n Shake filed a Motion for Summary Judgment, which was initially denied by the trial court. A little more than a year later, Steak 'n Shake filed a motion asking the trial court to reconsider its denial of summary judgment in light of the recent pronouncement by the Indiana Supreme Court with regard to the determination of duty. After considering the Supreme Court's decisions in Goodwin v. Yeakle's Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016) and Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016), the trial court granted summary judgment in favor of Steak 'n Shake, concluding that Steak 'n Shake did not owe Hamilton a duty to protect her from another's unforeseeable criminal act. Hamilton appeals, arguing that the trial court's determination that Steak 'n Shake did not owe her a duty is erroneous.

         [¶3] We reverse and remand.

         Facts & Procedural History[1]

         [¶4] The facts most favorable to Hamilton, the non-movant, follow. On or about December 21, 2012, Hamilton, her brother Dustyn, and two friends were patrons at an Indianapolis Steak 'n Shake. A server and a cook, who was also acting as the manager, were the only other persons present. Shortly after Hamilton's group ordered their food, another group of individuals, including Ricky Jackson, entered the Steak 'n Shake and sat about ten to twenty feet away. Jackson began to threaten and verbally abuse Hamilton and Dustyn on account of Dustyn's sexual orientation. Jackson also attempted to goad Dustyn into fighting him and even blocked the door so no one could leave. At one point, Jackson went outside and continued taunting Hamilton and Dustyn by repeatedly pounding on the windows and yelling for Dustyn to come outside and fight him.

         [¶5] The tension between the two groups escalated over the course of approximately thirty minutes. The server was aware of the verbal exchange and the nature of the insults and informed the cook/manager of the confrontation between the groups. Neither of the Steak 'n Shake employees took any action to intervene while the groups were seated at their tables, nor did they contact Steak 'n Shake's security agency or the police to defuse the situation.

         [¶6] The confrontation continued to intensify as the two groups made their way toward the cash register. The server and the cook stood behind the counter observing the heated exchange between the groups. Only after it seemed as though a physical altercation was imminent did the cook/manager address the groups, saying several times, "Hey, you guys got to stop it and leave." Appellant's Appendix Vol. 4 at 54. None of the individuals heeded the order and moments later, a physical altercation ensued between Jackson and Dustyn inside the Steak 'n Shake near the cash register. Hamilton inserted herself into the fray to help her brother and in response to Jackson repeatedly calling her names. After Hamilton hit Jackson in the face, Jackson pulled out a gun and shot Hamilton point blank in the face, causing Hamilton to suffer serious injuries. After the physical confrontation started, the server called for help, and after the gun was fired, the cook ran across the street to a nearby business to summon help.

         [¶7] On August 8, 2013, Hamilton filed a complaint alleging negligence against Steak 'n Shake for failing "to take affirmative action to control the wrongful acts of third parties, " which ultimately resulted in harm to her, an invitee of the restaurant. Appellant's Appendix Vol. 2 at 52. After a period of discovery, Steak 'n Shake filed a motion for summary judgment along with a brief in support thereof and designated evidence on October 16, 2014. Hamilton filed a response in opposition to summary judgment and her designation of evidence on May 29, 2015. Steak 'n Shake filed a motion to strike Hamilton's designated evidence in opposition to summary judgment along with a reply in support of summary judgment. On June 22, 2015, the trial court held a hearing on the pending summary judgment motion. On September 24, 2015, the trial court entered an order denying Steak 'n Shake's motion for summary judgment.[2]

         [¶8] On November 17, 2016, Steak 'n Shake filed a Motion to Reconsider the trial court's order denying its motion for summary judgment in light of the Supreme Court's recent decision in Goodwin. On January 26, 2017, Hamilton filed a response directing the trial court's attention to Rogers, a companion case handed down the same day as Goodwin. [3] Hamilton also filed a supplemental designation of evidence. On January 31, 2017, Steak 'n Shake filed a reply in support of its motion to reconsider and a motion to strike Hamilton's supplemental designation of evidence. At a February 1, 2017 hearing, counsel for both parties presented oral argument on the motion to reconsider and the motion to strike. On March 14, 2017, the trial court granted Steak 'n Shake's motion to reconsider and thereafter entered summary judgment in favor of Steak 'n Shake based on its determination that Steak 'n Shake did not owe a duty to Hamilton.[4] Hamilton filed her Notice of Appeal on April 13, 2017. Additional facts will be provided as necessary.

         Discussion ...


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