April 16, 2018

Property Owner May Be Liable for Criminal Acts of Others; Hamilton v. Steak ‘n Shake Operations Inc.

Category: Indiana Law Review | Author: | Share:

In 2016, the Indiana Supreme Court redefined the analytical framework for evaluating foreseeability as it relates to the duty a landowner owes to an invitee in negligence actions. This case shows that test in action.

Hamilton and her friends were patrons at an Indianapolis Steak ’n Shake. Shortly after Hamilton’s group ordered its food, another group (including Jackson) entered the restaurant and sat about 10-20 feet away. Jackson began to threaten and verbally abuse Hamilton and her brother on account of the brother’s sexual orientation. Jackson goaded and taunted Hamilton and her brother over the course of the next 30 minutes. The server was aware of what was going on and informed the cook/manager of what was happening, but neither took any action.

The confrontation got worse as the two groups made their way to the cash register. When a physical altercation seemed imminent, the cook/manager told the groups that they had “to stop it and leave.” No one paid any attention. Eventually a fight began, which ended when Jackson shot Hamilton in the face.

Hamilton sued Steak ‘n Shake, arguing that it was negligent when it failed to control the situation at the restaurant. Steak ‘n Shake moved for summary judgment, and the trial court granted that motion. Hamilton appealed.

On appeal, the Court noted the Supreme Court’s mandate in the recent Goodwin and Rogers decisions that foreseeability as it relates to the duty a landowner owes to an invitee in negligence actions looks to (1) the broad type of plaintiff and (2) the broad type of harm. In Goodwin, which involved a shooting in a neighborhood bar, the Supreme Court found that this type of conduct is generally not foreseeable in that context as a matter of law. And in Rogers (which involved a death at party at the defendants’ home), the Court found that it was not foreseeable for the host of a house-party to expect that guests would fight, but that the homeowner did have a duty to assist a guest who was lying motionless on the floor.

Turning to the facts of this case, the Court distinguished it from Goodwin because the shot in Goodwin was fired “without warning.” And it found that the fight in Rogers “was not predictable.” But this case was different.

Here, Hamilton asserts that Steak ’n Shake was fully aware of the discord between the two groups and the escalating tension that intensified over the course of approximately thirty minutes. Indeed, the thirty-minute altercation involved not only verbal threats and taunts, but also efforts to incite a physical confrontation, blocking of the entrance/exit, and pounding on the windows from outside of the restaurant.

[T]he factual scenario presented is akin to the second situation identified by the Supreme Court in Rogers, wherein the Court redefined the broad type of plaintiff and harm in terms of the landowner’s knowledge that a house-party guest had been injured. The Rogers Court concluded that the landowner’s knowledge that the house-party guest had been injured gave rise to a duty to take precautions to protect the injured guest from exacerbation of those injuries. Similarly, here, Steak ’n Shake’s knowledge of the events taking place on its premises gave rise to a duty to take reasonable steps to provide for patron safety.

Put another way, the restaurant had a duty to protect its patrons “once the raucous behavior came to its attention.” This is, of course, not the end of the injury as Hamilton still must prove breach and proximate cause. But it helps us know how to apply the recently-announced foreseeability analysis.


A landowner which sees an escalating, dangerous situation has a duty to take reasonable steps to make the situation safer.