Anthony Rose as Special Administrator of the Estate of Rachelle L. Godfread, deceased, Appellant-Plaintiff,
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.
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
Summary and Issue
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 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.
and Procedural History
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.
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.
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.
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
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.
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 ...