Del. Porterfield

INDIANAPOLIS, Ind. — The Indiana Supreme Court has ruled against a lawsuit filed by Del. Eric Porterfield of Princeton related to a 2006 incident in the parking lot of a bar that left Porterfield blind.

In a 2008 civil lawsuit, Porterfield claimed Cavanaugh’s Sports Bar & Eatery, located in Schererville, Ind. near Gary. Ind., was negligent “after a sudden fight in the bar’s parking lot at closing time left him grievously injured” because the owners must “take reasonable precautions to protect invitees from foreseeable criminal attacks.”

Differing statements related to the details of that fight were reported but several people were involved and Porterfield, who was 32 at the time, was severely injured as his eyes were “poked out,” according to the police report.

Cavanaugh’s filed a motion for a summary judgment (which, in essence, terminates the case) of Porterfield’s civil suit, arguing it “owed Porterfield no duty because the incident was unforeseeable” and it was a “parking lot brawl” that showed no evidence Cavanaugh’s knew the fight was impending.

However, a trial court denied the motion for summary judgment and a Court of Appeals affirmed that decision, which, on appeal, landed the case in the state Supreme Court.

The decision to overturn the lower court’s’ decision and grant summary judgment to Cavanaugh’s was a close one, but in a 3-2 vote the majority reached the conclusion that the “criminal attack at issue here was unforeseeable, the duty of Cavanaugh’s to protect Porterfield did not extend to this particular scenario.”

According to the Supreme Court case background summary, “In the crowded but calm Cavanaugh’s, the two men (Porterfield and his friend Steven McPherson) socialized with bartenders and had no disputes with anyone in the bar. At the 3 a.m. closing time, the men, along with the rest of the bar’s clientele … left the bar for the parking lot. Halfway across the lot, they fought with some other departing customers. The details of the incident are unclear, but Porterfield sustained terrible injuries that rendered him permanently blind.”

Porterfield maintained that security should have been in place “because Cavanaugh’s had a reputation for being located in an area of criminal activity and known, or should have been known by [Cavanaugh’s], to be frequented by persons with a propensity to engage in criminal conduct,” and Cavanaugh’s “has experienced criminal activity for years prior to the attack …”

The fray was foreseeable, the lawsuit said, because “police were called to Cavanaugh’s five times in the year preceding the clash to respond to fights in the parking area, between 3 a.m. and 3:30 a.m.”

The trial court did not consider that Porterfield’s evidence supported that the bar was historically dangerous, but denied Cavanaugh’s request for summary judgment because “there simply were not enough agreed material facts presented” for it to decide whether Cavanaugh’s owed Porterfield a duty.

The Court of Appeals affirmed, holding that “parking lot fistfights at closing time are generally within the type of ‘rowdy behavior’ that bar owners should contemplate” … and the “history of reported incidents” at Cavanaugh’s “gave it reason to contemplate further such incidents in its own parking lot.”

According to the Supreme Court’s majority decision filed last week, though, “no present knowledge informed the landowner (Cavanaugh’s) that any sudden harm was impending, and the restaurant didn’t owe the patron a duty to protect him from the ‘criminal act at issue.’”

The majority decision said Cavanaugh’s had “no reason to foresee a bar patron blinding another during a sudden parking lot fight. Unlike the cases where courts have found a duty when a landowner knew or should have known about likely looming harm, Porterfield does not show that Cavanaugh’s had any reason to believe the fight would occur. The skirmish occurred suddenly … and without warning: for hours before the fracas, Porterfield and his friend socialized with bartenders and had no animosity with any other customers. Indeed, no evidence suggests any tension in the bar before the fight.”

A landowner’s responsibility, the majority said, is to “take reasonable precautions to protect invitees from foreseeable criminal attacks.”

That particular scenario was not foreseeable, the Supreme Court concluded.

In the dissent, the judge said that “while I agree with the majority that businesses should not become insurers of their invitees’ safety, its new requirements take us too far toward the harm at the other end of the spectrum: providing blanket immunity to businesses for foreseeable harms that befall their invitees. The majority also relies on the particular facts of this case rather than conducting the more general analysis our precedent requires. When we look at the broad types of plaintiff and harm as part of the foreseeability inquiry, we do so without addressing the specific facts of the occurrence.”

In addition to the specific issues already discussed, the “majority opinion more broadly impedes the right to a trial,” where the outcome of this particular scenario should have been decided, the dissent said, adding that based on “common-sense foreseeability inquiry … a fight like this one” would be foreseeable.

“We are very disappointed in the 3 to 2 decision,” Porterfield said Monday. “The court ruled that the event was unforeseeable. We would certainly disagree with that due to the previous incidents (at Cavanaugh’s).”

Porterfield, founder of Blind Faith Ministries in Princeton, said he would have also liked to have had his “day in court,” and prefer to live with whatever decision would have been made there.

“But we will take it from the Lord and be grateful this 13-year legal process has concluded and move on to the next chapter,” he said. “I thank the Lord for the good and the bad and am thankful I have a pretty wonderful life. You can live as a victim or you can live as an overcomer.”

Contact Charles Boothe at cboothe@bdtonline.com

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