Indiana Court of Appeals Reinstates Claims of Patron Shot at Steak ‘n Shake Because of Foreseeable Nature of Threat

By Codie Ross

Under Indiana law, a proprietor owes a duty to invitees to take reasonable precautions to protect them from “foreseeable” criminal acts. The Indiana Court of Appeals recently reinstated a patron’s claims that Steak ‘n Shake should have reasonably foreseen the potential for injury when other patrons were engaged in an extended, escalating, conflict that spilled over and affected the injured patron. Amber Hamilton v. Steak ‘n Shake Operations, Inc., 49A02-1704-CT-776.

In December 2012, Amber Hamilton and her brother Dustyn were at Steak ‘n Shake when another group, including Ricky Jackson, entered the restaurant. Jackson began harassing the siblings because of Dustyn’s sexual orientation and sought to goad Dustyn into a fight.  Although the employees of the restaurant were aware of the ongoing argument, none of them sought to intervene until approximately thirty minutes later when the argument became physical. Then, the manager simply asked both groups to leave the premises, but took no further action when they ignored him. Ms. Hamilton was then shot by Mr. Jackson after she attempted to assist her brother. Ms. Hamilton subsequently filed claims of negligence against Steak ‘n Shake, including alleging that the restaurant had failed “to take affirmative action to control the wrongful acts of third parties.”

While the trial court initially dismissed Ms. Hamilton’s claims of negligence, the Court of Appeals reinstated her claims finding that Steak ‘n Shake could have reasonably foreseen the potential for the escalating conflict to affect other patrons, like Ms. Hamilton. Essentially, the Court of Appeals found that the 30 minutes of interaction between the two groups (complete with verbal threats, taunts and attempts to start a fight) placed Steak ‘n Shake on notice of the potential for violence, and thus potentially triggered a duty by Steak ‘n Shake to protect or warn its patrons of the hazard.

For business owners, this case illustrates that there must be vigilance on their part to prevent, or at least address, “foreseeable” outbreaks of violence. Indeed, here, the employees could have addressed the situation well before it got out of hand and Ms. Hamilton was injured. Such vigilance can include step-by-step training on how to handle such situations, additional handbook information for the employees, and actual attempts to involve the police. And, if necessary, businesses can employ private security to address these types of situations if they find themselves with recurring incidents.  Otherwise, the longer a situation like this festers, the more likely that liability will be imposed on the business owner for failing to protect its patrons from an increasingly foreseeable threat.

If you have any questions regarding this recent decision or its impact on Hoosier businesses, please contact any member of our Retail, Hospitality and Entertainment Facilities Practice Group.