Merchants National Bank v. Simrell's Sports Bar & Grill, Inc.
2000 Ind. App. LEXIS 2053, 741 N.E.2d 383, 2000 WL 1858792 (2000)
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Rule of Law:
A tavern owner's common law duty to protect an invitee from foreseeable criminal acts of third parties, including those on adjacent public property used for egress, is determined by the "totality of the circumstances" test, but this duty does not extend to unforeseeable criminal acts, nor does it arise from merely ordering an intoxicated patron to leave or providing security on different nights. Furthermore, a willful, malicious criminal act by a third party will typically break the chain of proximate causation for Dram Shop Act liability.
Facts:
- On Tuesday, January 7, 1997, Christopher C. Merchant entered Simrell’s Sports Bar & Grill in Terre Haute.
- Merchant remained inside the bar until approximately 3:30 a.m. when it closed.
- Merchant then left the bar with two friends, shortly after another group of patrons, including Theodore Brewer, had also left.
- An altercation subsequently erupted involving Merchant and Brewer on the sidewalk immediately outside Simrell’s.
- Brewer shot and killed Merchant during the altercation.
Procedural Posture:
- Merchants National Bank, as Administrator of the Estate of Christopher C. Merchant, filed a wrongful death suit against Simrell’s Sports Bar & Grill, Inc. in the trial court.
- Simrell's moved for summary judgment, arguing that it owed no duty to Merchant as a matter of law.
- Following a hearing, the trial court granted summary judgment in favor of Simrell’s.
- The Administrator appealed the trial court's grant of summary judgment to the Indiana Court of Appeals.
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Issue:
Does a tavern owner owe a common law duty to protect a patron from an unforeseeable criminal act by a third party on an adjacent public sidewalk, or does the tavern assume such a duty by providing security on other nights or ordering an intoxicated patron to leave, or is it liable under the Dram Shop Act when the criminal act is an intervening cause?
Opinions:
Majority - Najam, Judge
No, Simrell's did not owe a common law duty to Merchant because Brewer's criminal act was unforeseeable under the totality of the circumstances; Simrell's did not gratuitously assume a duty to protect Merchant; and Simrell's is not liable under the Dram Shop Act because Brewer's criminal act was an intervening cause that broke the chain of causation. The court applied the "totality of the circumstances" test, established in Delta Tau Delta v. Johnson, to determine the foreseeability of a criminal act. This test considers the nature, condition, and location of the land, as well as prior similar incidents. While the duty of reasonable care extends to providing a safe means of ingress and egress, the record lacked evidence of any prior or similar shooting incidents outside the tavern. Testimony about general fights occurring "quite a bit" was deemed insufficient to make a shooting death foreseeable. There was also no evidence that Simrell’s had knowledge of Brewer’s propensity for criminal acts or any prior hostility between Merchant and Brewer inside the bar. Therefore, Simrell’s had no common law duty. Regarding an assumed duty, the court noted that such a duty arises only when an actor, through affirmative conduct, specifically undertakes to perform a task, citing Butler v. City of Peru. Unlike the facts in Ember v. BFD, Inc., where a tavern undertook affirmative steps to provide neighborhood security, Simrell's merely provided security on Thursday, Friday, and Saturday nights, but Merchant was shot on a Tuesday night. Ordering an intoxicated patron to leave, as in Fast Eddie’s v. Hall, does not constitute an assumed duty to protect their safety and would inappropriately make tavern owners guarantors of patron safety. Finally, concerning the Dram Shop Act (Indiana Code Section 7.1-5-10-15.5), liability requires both actual knowledge of visible intoxication and that the intoxication be a proximate cause of the injury. Even assuming a breach of statutory duty regarding intoxication, Brewer's willful, malicious criminal act of shooting Merchant was an intervening act that broke the causal chain between any alleged negligence by Simrell's and Merchant's death, as held in Basicker ex rel. Johnson v. Denny’s, Inc. Thus, summary judgment was appropriate on all issues.
Analysis:
This case significantly clarifies the scope of a tavern owner's duty to protect patrons from third-party criminal acts in Indiana, reinforcing that foreseeability under the "totality of the circumstances" test requires more than a general history of altercations to predict lethal violence. It establishes a high bar for proving an assumed duty, demanding specific, affirmative conduct rather than general security measures or routine actions like ordering patrons to leave. Furthermore, the decision affirms that an intervening, willful criminal act typically severs the chain of proximate causation, making it challenging to hold a bar liable under dram shop statutes even if there was a breach of duty in serving alcohol. This limits the potential liability of businesses for criminal acts occurring off-premises or those deemed unforeseeable.
