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Rose v. Martin's Super Markets L.L.C.

Court of Appeals of Indiana

February 28, 2019

Anthony Rose as Special Administrator of the Estate of Rachelle L. Godfread, deceased, Appellant-Plaintiff,
v.
Martin's Super Markets L.L.C., Martin's Super Markets of Elkhart East L.L.C., Martin's Super Markets of Elkhart L.L.C., and Martin's Super Markets Inc., Appellees-Defendants.

          Appeal from the St. Joseph Superior Court The Honorable Steven L. Hostetler, Judge Trial Court Cause No. 71D07-1601-CT-15

          ATTORNEYS FOR APPELLANT Andrew Lucas Martz and Lucas, LLC Valparaiso, Indiana Benjamin D. Fryman Schwerd Fryman & Torrenga, LLP Valparaiso, Indiana

          ATTORNEYS FOR APPELLEES J. Thomas Vetne Janet G. Horvath Jones Obenchain, LLP South Bend, Indiana

          ROBB, JUDGE.

         Case Summary and Issue

         [¶1] Rachelle Godfread was killed when a man began shooting inside a Martin's Super Market (the "Store") in Elkhart, Indiana. Anthony Rose, as special administrator of Godfread's estate (the "Estate"), sued the Store[1] for negligence. The parties filed cross motions for summary judgment. The trial court entered final judgment granting the Store's motion for summary judgment and denying the Estate's. The Estate appeals, raising two issues for our review that we consolidate and restate as one: whether the trial court erred in granting summary judgment to the Store on the issue of duty. Concluding the Store, as a matter of law, did not have a duty to Godfread either before or after the shooting began, we affirm.

         Facts and Procedural History[2]

         [¶2] In the late evening of January 15, 2014, Shawn Bair entered the Store and proceeded to walk around without a basket or a cart. Bair retrieved only a single bottle of soda but he did stop to ask two Store employees where another item was located. He primarily talked or texted on his phone as he walked the aisles. Such behavior was not unusual for Bair, who had visited the Store on several other occasions.

         [¶3] Approximately forty minutes after his arrival, Bair pulled a gun from beneath his coat and shot and killed Krystal Dikes, a Store employee, as she stocked shelves in aisle 3. Jodi Beaver, another Store employee, came to investigate the commotion and found Dikes on the floor. As Beaver fled toward the front of the store, Bair shot at her but missed. Bair continued walking the store, stopping at the end of aisle 17. Godfread was at the opposite end of aisle 17 with her back to Bair. Bair shot her in the back and she fell to the ground. As Godfread tried to sit up, Bair walked to her and shot her in the head at point-blank range, killing her. Sixty-four seconds had elapsed from the first shot.

         [¶4] Dan Zimmer, a Store employee working security/loss prevention that night, was at the Store's entrance when he heard the first shot. As he ran toward the sound, Beaver rounded a corner running toward him, yelling, "He's shooting[!]" Appellant's Corrected Appendix, Volume 2 at 159. Zimmer turned back, ushered everyone at the front of the store outside, and called 911. Police arrived within two minutes and forty-three seconds of Bair's first shot. Bair was shot and killed by police roughly five minutes after he had begun shooting.

         [¶5] The Estate filed this negligence action against the Store on January 13, 2016, alleging the shooting was foreseeable and that the Store had a duty to take action to protect Godfread after the shooting began. In March 2018, the Estate filed a motion for summary judgment along with its designation of evidence, seeking a determination that the Store had a duty to protect Godfread as a matter of law because an active shooter situation was foreseeable. The Estate designated evidence that in September 2012, the Store's corporate office had circulated to store managers, assistant store managers, closing managers, and security officers a memo titled "Active Shooter Protocol" that was drafted by its head of security and human resources department. The memo stated:

Attached you will find a fact sheet, a couple of laminated pocket cards and a DVD on Active Shooter Protocol. Please review this material with your assistant store manager, all closing managers and anyone working security. Please have each person sign the bottom of this memo verifying they have reviewed the material.
We hope this is information you will never need to use, but given current events across the country, much that you see on the news, we want to make these materials available to you. This is good knowledge for all of us to have in our work and personal lives as we visit public establishments.

Id. at 119. The fact sheet, pocket cards, and DVD themselves were not among the evidence designated by the Estate. The Estate also designated the deposition of Zimmer and John Kimmey, who was the closing manager the night of the shooting. Zimmer stated that the Store did not provide him any training for an active shooter situation and that he had not seen the pocket cards or DVD distributed with the September 2012 memo. Kimmey also stated that he had never seen the pocket cards or DVD and that on the date of the shooting, he was not familiar with the term "active shooter." Kimmey testified at his deposition that to his knowledge, no announcements were made in-store about the situation as it unfolded. Kimmey encountered Bair in an aisle of the store after Godfread was shot, and Bair had his gun pointed at him when police entered and shot Bair.

         [¶6] In April, the Store filed its own motion for summary judgment arguing that the shooting was unforeseeable and therefore it did not owe Godfread a duty as a matter of law. After hearing argument on the parties' respective motions, the trial court issued its order denying the Estate's motion for summary judgment and granting the Store's:

When presented with a set of circumstances so clearly analogous to those of Goodwin [v. Yeakle's Sports Bar & Grill, 62 N.E.3d 384, 394 (Ind. 2016)], a trial court has an absolute and important obligation to follow established precedent. As a sudden shooting inside a neighborhood bar is not foreseeable as a matter of law, it must be held that a sudden shooting inside a supermarket is similarly not foreseeable as a matter of law.
The shootings that occurred on that unfortunate evening of January 15, 2014, were terrible and tragic. However, based on the controlling precedent, the Court has no choice but to rule that, as a matter of law, [the Store] owned [sic] no duty to protect Ms. Godfread from being shot. [The Store's] Summary Judgment Motion must therefore ...

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