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Certa v. Steak 'N Shake Operations Inc.

Court of Appeals of Indiana

May 29, 2018

Jeffery Certa, Appellant-Plaintiff,
v.
Steak 'n Shake Operations Inc., Mikal Gillham, and Matthew Hulett, Appellees-Defendants.

         Appeal from the Tippecanoe Superior Court Trial Court Cause No. 79D01-1404-CT-50 The Honorable Randy J. Williams, Judge.

          Attorneys for Appellant James F. Olds William E. Emerick Mark R. Molter Stuart & Branigin LLP Lafayette, Indiana

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

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

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

          Barteau, Senior Judge

         Statement of the Case

         [¶1] Appellant Jeffery Certa appeals the trial court's entry of summary judgment in favor of Appellee Steak 'n Shake.[1] We reverse and remand.

         Issue

         [¶2] Certa presents one issue for our review: whether the trial court erred in granting Steak 'n Shake's motion for summary judgment.

         Facts and Procedural History

         [¶3] The facts most favorable to Certa, the nonmovant, follow. In the early morning hours of May 4, 2013, Certa and his friends, Rick and Arlene Luse, arrived at the Steak 'n Shake in Lafayette, Indiana. Certa and the Luses had been drinking. As they walked from the parking lot to the entrance of the restaurant, they observed a man and a woman arguing and saw the man push the woman against the wall. Certa stepped between the two people and told the man not to put his hands on the woman. Mikal Gillham was with the man and woman and witnessed Certa's actions. She and Certa exchanged words when she suggested that Certa stay out of their affairs. Certa then entered the restaurant with the Luses and informed a Steak 'n Shake employee that there was a physical altercation occurring outside the restaurant. The employee indicated that he would take care of the situation, and Certa and the Luses were seated at a table.

         [¶4] Gillham entered the restaurant to join her friends, Matthew Hulett and Lynn Huhn, who had already been seated. Like Certa and the Luses, Gillham and her friends had been drinking that evening. Gillham's aunt, Ladonna Musik, is a Steak 'n Shake employee and was the server on duty that night. Musik was aware that the two groups had been drinking. When Gillham entered the restaurant, she told Musik about her exchange with Certa, and she advised her aunt not to allow Certa and his friends into the restaurant because she "could tell that they were intoxicated" and she "just had a feeling that they were going to start an argument[ ] or a fight." Gillham Depo., Appellant's Appendix Vol. 2, p. 152. Musik stated that everyone should calm down, eat their food, and mind their own business. Musik advised her manager to watch the two tables because there might be a conflict.

         [¶5] Gillham and her friends were seated at a table on the other side of the restaurant from Certa and the Luses. Although there was no conversation, yelling, or fighting between the two tables, the people at Gillham's table were talking loudly, pointing, and gesturing at ...


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