Interlocutory Appeal from the Lake Superior Court The
Honorable Bruce D. Parent, Judge Trial Court Cause No.
Attorneys for Appellant Christopher D. Cody Georgianna Q.
Tutwiler Hume Smith Geddes Green & Simmons, LLP
Attorney for Appellee A. Leon Sarkisian Sarkisian Law Offices
Shortly after closing time, several patrons of
Cavanaugh's Sports Bar & Eatery, Ltd.
("Cavanaugh's"), became involved in an
altercation in Cavanaugh's parking lot, and patron Eric
Porterfield was injured. Porterfield filed a personal injury
action, claiming that Cavanaugh's was negligent in
failing to take reasonable care for his safety against
criminal attacks in its parking lot. In this interlocutory
appeal, Cavanaugh's challenges the denial of its motion
for summary judgment. Finding that Cavanaugh's failed to
establish as a matter of law that it did not owe Porterfield
a duty to protect him from criminal activity in its parking
lot, we affirm the denial of summary judgment.
and Procedural History
The facts most favorable to Porterfield as the nonmoving
party are as follows. At 3:00 a.m. on Sunday, December 10,
2006, Cavanaugh's closed for the night. At the time, the
bar was crowded, and Cavanaugh's employees directed the
patrons to the exits. One of those patrons, Porterfield, had
been at Cavanaugh's with his friend Steven McPherson.
Porterfield did not consume any alcohol, but McPherson did.
When they reached Cavanaugh's parking lot, McPherson made
a comment to a female patron, to which her boyfriend and his
companions, also patrons, took umbrage. Porterfield turned
and saw McPherson surrounded by the boyfriend and his
friends. An altercation ensued, and Porterfield suffered a
serious eye injury.
Porterfield filed a personal injury action against
Cavanaugh's, claiming that Cavanaugh's was negligent
in failing to take reasonable care for his safety as an
invitee/patron. Several years later, Cavanaugh's filed a
motion for summary judgment accompanied by designated
materials, claiming that as a matter of law it owed no duty
to protect Porterfield.
Porterfield designated several exhibits in opposition to
summary judgment. Plaintiff's Exhibits 2 through 6
comprise reports of five police runs to Cavanaugh's
during the eleven months preceding the current incident. All
the reports involve incidents of reported fisticuffs outside
Cavanaugh's shortly after closing time. Exhibit 7
includes excerpts from the deposition of Schererville Police
Department Corporal Michael A. Vode, who testified that each
police run record sets out regularly recorded and conducted
activities of his department. Ind. Evidence Rule 803(8)(A).
Two days before the summary judgment hearing, Cavanaugh's
filed a motion to strike, claiming that the police reports
contained inadmissible hearsay. The court did not rule on the
motion at that time.
The trial court conducted a hearing and issued an order
denying Cavanaugh's summary judgment motion. As part of
its order, the trial court stated that it did not consider
the police run reports in making its decision and found
Cavanaugh's motion to strike moot. This interlocutory
appeal ensued. Additional facts will be provided as
Cavanaugh's claims that the trial court erred in denying
its motion for summary judgment. We review a court's
ruling on a summary judgment motion de novo, applying the
same standard as the trial court. Hughley v. State,
15 N.E.3d 1000, 1003 (Ind. 2014). In conducting our review,
we consider only those matters that were designated to the
trial court during the summary judgment stage. Biedron v.
Anonymous Physician 1, 106 N.E.3d 1079, 1089
(Ind.Ct.App. 2018), trans. denied (2019).
Summary judgment is appropriate if the designated evidence
shows that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law. Hughley, 15 N.E.3d at 1003; Ind. Trial Rule
56(C). The moving party bears the onerous burden of
affirmatively negating an opponent's claim.
Hughley, 15 N.E.3d at 1003. Then, if
"the moving party satisfies this burden through evidence
designated to the trial court, the non-moving party may not
rest on its pleadings, but must designate specific facts
demonstrating the existence of a ...