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Ltd. v. Porterfield

Court of Appeals of Indiana

April 30, 2019

Cavanaugh's Sports Bar & Eatery, Ltd., Appellant-Defendant,
v.
Eric Porterfield, Appellee-Plaintiff

          Interlocutory Appeal from the Lake Superior Court The Honorable Bruce D. Parent, Judge Trial Court Cause No. 45D04-0710-CT-288

          Attorneys for Appellant Christopher D. Cody Georgianna Q. Tutwiler Hume Smith Geddes Green & Simmons, LLP Indianapolis, Indiana

          Attorney for Appellee A. Leon Sarkisian Sarkisian Law Offices Merrillville, Indiana

          CRONE, JUDGE.

         Case Summary

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         [¶5] 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 necessary.

         Discussion and Decision

         [¶6] 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).

         [¶7] 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 ...


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