
    April GOODWIN, Tiffany Randolph, and Javon Washington, Appellants-Plaintiffs, v. YEAKLE’S SPORTS BAR AND GRILL, INC., Appellee-Defendant.
    No. 27A02-1407-CT-526.
    Court of Appeals of Indiana.
    March 25, 2015.
    Rehearing Denied June 25, 2015.
    
      Joe Keith Lewis, Marion, IN, Attorney for Appellants.
    James J. Shea, Sr., Timothy W. De-Groote, Andrew S. Williams, Fort Wayne, IN, Attorneys for Appellee.
   NAJAM, Judge.

Statement of the Case

[1] This case presents yet another opportunity for Indiana’s appellate courts to clarify the Indiana test for determining whether a duty exists in a negligence action, an issue that has created confusion at every level of our judiciary. There are two tests in Indiana. First, if a duty is well-established in our case law, and the case before the court is substantially similar to-that case law, then that duty applies. If, on the other hand, the ease before the court presents facts and circumstances that have not been addressed in prior decisions of Indiana’s appellate courts, then in determining whether a . duty exists, we must balance the three factors articulated in Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991), including the reasonable foreseeability of harm to the person injured.

[2] Here, April Goodwin, Tiffany Randolph, and Javon Washington (collectively “the Appellants”) filed a complaint against Yeakle’s Sports Bar arid Grill, Inc. (“the Bar”) alleging that the Bar was negligent when it failed to protect them from criminal acts committed by Rodney Carter on the Bar’s premises. The Bar moved:for summary judgment, and the trial court granted that motion following a hearing. On appeal, the. Appellants raise a single issue for,our;review, namely, whether the trial court erred when it entered summary judgment in favor of the Bar.

[3] The parties dispute whether a duty existed concerning whether the Bar could have reasonably foreseen Carter’s criminal acts. But the facts demonstrate that this is a straight-forward premises liability case, and the duty in such cases is well-established in our case law. As such, reasonable foreseeability is not part of the analysis with respect to the Bar’s duty. As this was the only argument raised to the trial court and was the basis of the court’s entry of summary judgment for the Bar, the trial court’s entry of summary judgment was erroneous as a matter of law. Accordingly, we reverse and remand for further proceedings.

Facts and Procedural History

[4] During the early morning hours of August 28, 2010, Goodwin, Randolph, and Washington were socializing with friends at Yeakle’s, -a small bar in Marion. Carter and his wife were also there, and they were positioned near Washington and the others. At some point, Carter thought he heard Washington make a derogatory remark about Carter’s wife, and Carter shot Washington. Carter separately, and accidentally, shot Goodwin and Randolph.

[5] The Appellants filed a complaint against the Bar alleging that it

was negligent in providing a safe place for their patrons to socialize as follows:
a. By negligently failing to provide security for its patrons;
b. By negligently failing to search Rodney Carter for weapons;
c. By otherwise negligently failing to warn plaintiffs that Rodney Carter was armed and dangerous.

Appellants’ App. at 15. The Bar filed a motion for summary judgment alleging that Carter’s criminal acts were unforeseeable as a matter of law and, therefore, that it did not have a duty to protect the Appellants from being shot. Following a hearing, the trial court entered summary judgment in favor of the Bar. This appeal ensued.

Discussion and Decision

[6] The Appellants contend that the trial court erred when it entered summary judgment in favor of the Bar. In particular, the Appellants maintain that Carter’s criminal acts were foreseeable and the trial court erred when it concluded that the Bar owed them no duty to protect them from being shot. We hold that the Bar had a duty to protect the Appellants from harm, but we do not address the foreseeability of Carter’s criminal acts in resolving this issue. • Instead, a determination of whether the shootings were reasonably foreseeable goes to the issue of whether the Bar breached its duty, an issue which was not raised on summary judgment.

[7] Our standard of review is well-settled.

We review summary judgment de novo, applying the same standard as the trial court: “Drawing all reasonable inferences in favor of ... the non-moving parties, summary judgment is appropriate 'if the designated evidentiary matter 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.’ ” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009) (quoting T.R. 56(C)). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ ■differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Id. (internal citations omitted).
The initial burden is on the summary-judgment movant to “demonstrate[ ] the absence of any genuine issue of fact as to a determinative issue,” at which point the burden shifts to the non-movant to “come forward with contrary evidence” showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks and substitution omitted). And “[a]l-though the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court’s decision to ensure that he was not improperly denied his day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E,2d 906, 909-10 (Ind.2009) (internal quotation marks omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.2014) (alterations original to Hugh-ley ).

[8] We emphasize that summary judgment is a “high bar” for the moving party to clear in Indiana. Id. at 1004. “In particular, while federal practice permits the moving party to merely show that the party carrying the burden of proof [at trial] lacks evidence on a necessary element, we impose a more onerous burden: to affirmatively ‘negate an opponent’s claim.’” Id. at 1003 (quoting Jarboe v. Landmark Comm. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.1994)).

[9] The issue of a landowner’s duty to protect an invitee from the criminal acts of a third party has been addressed by our courts in numerous significant cases. Our supreme court recently set out the general law underlying the question of duty in negligence actions as follows:

The essential elements for a negligence action are “(1) a duty owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by the breach of duty.” Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind.2011) (citing Caesars Riverboat Casino, LLC v. Kephart, 934 N.E.2d 1120, 1123 (Ind.2010)). Where there is no duty, there can be no breach, and thus the party cannot be found negligent. Pfenning, 947 N.E.2d at 398. Whether a duty exists is generally a question of law for the court. Id. In making this determination, “a three-part balancing test developed by this Court ‘can be a useful tool.’ ” Id. (quoting Kephart, 934 N.E.2d at 1123) (citing N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 465 (Ind.2003)) (referencing the factors enunciated in Webb [, 575 N.E.2d 992 at 995]: “(1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and- (3) public policy concerns”). However, this test is only needed “in those instances where the element of duty has not already been declared or otherwise articulated.” Sharp, 790 N.E.2d at 465; see also Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1053 (Ind.2003) (“Where, as in this case, the alleged duty is well-established, there is no need for a -new judicial -redetermination of duty.”).

Yost v. Wabash College, 3 N.E.3d 509, 515 (Ind.2014) (emphasis added). Relevant to the instant appeal, our supreme court has declared that the Webb balancing test is unnecessary where a particular duty is well-established. Id. But our courts have not consistently followed this rule since Sharp and Bartolini were handed down in 2003.

[10] Here, for instaiic'e, in concluding that the Bar did not owe a duty to the Appellants to protect then) from the shootings, the trial court relied on this court’s opinion in Merchants National Bank v. Simrell’s Sports Bar and Grill, Inc., 741 N.E.2d 383 (Ind.Ct.App.2000), which predated Sharp and jBartolini. In Simrell’s, which also involvéd a shooting at á bar, another panel of this court relied on a trilogy of opinions by our supreme court that had held that the determination of whether a landowner owes an invitee a duty to take reasonable care to. protect the invitee .against a third party criminal attack requires consideration of the totality of the circumstances to. determine whether the criminal act was reasonably foreseeable. Id. at 387 (citing Delta Tau Delta v. Johnson, 712 N.E.2d 968, 973 (Ind.1999); Vernon v. Kroger Co., 712 N.E.2d 976, 979 (Ind.1999); L.W. v. Western Golf Ass’n, 712 N.E.2d 983, 984-985 (Ind.1999)). The Simrell’s court held that, because the shooting was not reasonably foreseeable, the ban did not owe the plaintiff a duty of care to protect him from being shot.

[11] However, only four years after the Delta Tau Delta trilogy, our supreme court rejected application of the Webb balancing test where the existence of a duty is already “well-established.” Bartolini, 799 N.E.2d at 1053. In Bartolini the plaintiff, who was a patron of the defendant’s pub, was assaulted by other patrons in the parking lot. In addressing the issue of whether the defendant owed the plaintiff a duty to protect him from the criminal acts of third parties, our supreme court explained in relevant part as follows:

Landowners have a duty to take reasonable precautions to protect their invitees from foreseeable criminal attacks. Delta Tau Delta [, 712 N.E.2d at 973]. In addition, we have observed that'the duty of a business to exercise reasonable care extends to keeping its parking lot safe and providing a safe and suitable means of ingress and egress. Vernon[, 712 N.E.2d at 979]. [More recently, in Sharp, 790 N.E.2d at 465, we] recognized that an individualised judicial determination of whether a duty exists in a particular case is not necessary where such a duty is well-settled. Thus, there is usually no need to redetermine what duty a business owner owes to its invitees because the law clearly recognizes that “[proprietors owe a duty to their business invitees to use reasonable care to protect them frotó injury caused by other patrons and guests on their premises, including providing adequate staff to policé and control disorderly conduct.” Id., (quoting Muex v. Hindel Bowling Lanes, Inc., 596 N.E.2d 263, 266 (Ind.Ct.App.1992)). This duty only extends to harm from the conduct of third persons that, under the facts of a particular ease, is reasonably foreseeable to the proprietor. Muex, 596 N.E.2d at 267.
In three cases handed down together four years ago, this' Court held that the determination of whether a landowner owed an invitee a. duty to take reasonable care to protect the invitee against a third party criminal attack requires consideration of the totality of the circumstances to determine whether the criminal act was reasonably foreseeable, [Western Golf, 712 N.E.2d at 984-985]; Vernon, 712 N.E.2d at 979; Delta Tau Delta, 712 N.E.2d at 973. This-analysis includes looking to “all of the circumstances surrounding an event, including the nature, condition, and location of the land, as well as prior similar incidents.” Western Golf, 712 N.E.2d at 985 (holding incidents of isolated childish pranks and actions in college co-ed living facility, absent evidence of prior violent acts or sexual assaults, do not make rape foreseeable); Vernon, 712 N.E.2d at 980 (holding frequent shoplifting and physical confrontations with escaping shoplifters, plus frequent police runs to premises, shows reasonable foreseeability that a shopper might be injured by crime); and Delta Tau Delta, 712 N.E.2d at 974 (holding that prior instance and information regarding sexual assaults at fraternity house demonstrated reasonable foreseeability of a sexual assault). While .the number, nature, and location of prior similar incidents are substantial factors, “the lack of prior similar incidents will not preclude a claim where the landowner knew or. should have known that ,the criminal act was foreseeable.” Id. at 973. We emphasized that “when the landowner is in a position to take reasonable precautions to protect his guest from a foreseeable criminal act, courts should not hesitate to hold that a duty exists.” Id. at 974.
Upon the question of whether an individualized redetermination of duty is necessary where the general duty is otherwise well-settled, there is thus a procedural inconsistency between Sharp and the trilogy of Western Golf, Vernon, and Delta Tau Delta. There is no doubt, however, that reasonable foreseeability is an'element of a landowner or business proprietor’s duty of reasonable care. The issue is merely at what point and in what manner to evaluate the evidence regarding foreseeability. We believe that Sharp provides the better answer. Where, as in this case, the alleged duty is well-established, there is no need for a new judicial redetermination of duty. The court’s function was merely to adequately inform the jury of the applicable duty, and the jury was then to determine whether the Pub breached this duty of reasonable care to protect its invitees .from foreseeable criminal attacks.

Id. at 1052-53 (emphases added).

[12] While Sharp and Bartolini provide clear precedent that the Webb balancing test set out in Delta Tau Delta does not apply where a duty is well-established, our supreme court revisited this issue in Kroger v. Plonski, 930 N.E.2d 1 (Ind.2010), where the plaintiff, was assaulted in a Kroger parking lot. In reversing the grant of summary judgment for Kroger, the court resurrected the pre-Bartolini “totality of the circumstances” test'of foreseeability in determining whether a duty existed, stating,

[t]he more challenging inquiry is whether in a given case, involving business owners and their invitees, a particular element of duty has been met. This is so because the “duty only extends to harm from the conduct of third persons that, under the facts of a particular case, is reasonably foreseeable' to the proprietor.” Bartolini, 799 N.E.2d at 1052. Although reasonable foreseeability is ordinarily a question of fact for the jury to decide, see Humphery v. Duke Energy Ind., Inc., 916 N.E.2d 287, 295 (Ind.Ct.App.2009), in the context of duty — which is a question of law—see Estate of Heck v. Stoffer, 786 N.E.2d 265, 268 (Ind.2003), reasonable foreseeability is determined by, the court. It is in this context that the court considers the “totality of the. circumstances.” Delta Tau Delta [, 712 N.E.2d at 972-73]; Vernon [, 712 N.E.2d at 979]; [Western, Golf, 712 N.E.2d at 984-85]. More precisely, the court must examine.“all of the circumstances surrounding, an event, including the nature, condition, and location of the land, as well as prior similar incidents to determine whether a criminal act was foreseeable.” Delta, Tau Delta, 712 N.E.2d at 972.

Id, at 7.

[13] But the court then went on to

emphasize that this- examination is not an inquiry into whether or to-what extent a landowner owes a duty to a business invitee. That issue is settled: “Landowners have a duty to take reasonable precautions to protect their invitees from foreseeable criminal attacks.” Bartolini, 799 N.E.2d at 1052. Rather, our inquiry is focused on whether a discreet element of the duty has been satisfied.

[14] Id. (emphases'added). Thus, on the one hand, the court declared that Kroger owed its business invitee a general duty of care, as a matter of law. But, on the other hand, the court stated that each case requires an “inquiry” into “whether a discreet element of the duty has been satisfied,” and it held that summary judgment was inappropriate because Kroger had failed to demonstrate that “criminal activity on its premises at the time of the Plon-ski assault was not' foreseeable.” Id. The court did not explain'the apparent incongruity between Bartolini, which eschews a foreseeability determination in the context of duty where, as in Kroger, the duty is well-established, and its holding that whether a duty exists depends on the foreseeability of the criminal conduct. ■ >

[15] Our supreme court most recently addressed this issue in Yost. In Yost, the plaintiff alleged in relevant part that Wabash College, the owner of a fraternity house, was negligent when it failed to protect Yost from the alleged criminal act of a fraternity member. 3 N'E.3d at 514. The court did not cite to Kroger, but, instead, it returned to the Sharp and Bartolini duty analysis and reiterated that

[wjhether a duty exists is generally a question of law for the court. Pfenning [, 947 N.E.2d at 398]. In making this determination, [the Webb balancing test can be a useful tool] Id. However, this test is only needed “in those instances where the element of duty has not already been declared or otherwise articulated.” Sharp, 790 N.E.2d at 465; see also [Bartolini, 799 N.E.2d at 1053]. With respect, to claims of liability against an owner for injuries sustained on the premises, the duties of a landowner are well established. “A landowner owes to. an invitee or social guest ‘a d/idy to exercise reasonable care for his protection while he is on the land-owneps premises. ’ Pfenning, 947 N.E.2d at 406 (quoting Burrell v. Meads, 569 N.E.2d 637, 639 (Ind.1991)).

Id. at 515 (emphases added, some citations and parentheticals omitted). The court then explained that,

[t]o delineate this duty we have adopted the Restatement (Second) of Torts § 343 (1965): A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves, an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Id. (quoting Burrell, 569 N.E.2d at 639-40).
Within the contours of this duty, we have held that landowners “have a duty to take reasonable precautions to prevent foreseeable criminal acts against invitees.” [Western Golf, 712 N.E.2d at 985]; see also Delta Tau Delta [, 712 N.E.2d at 973].

Yost, 3 N.E.3d at 515 (emphases added). The court concluded by holding that, because Wabash College, the landlord, did not control the premises where the alleged crime occurred, it did not owe a duty to prevent foreseeable criminal acts against the plaintiff. Id. at 516. Thus, in Yost, our supreme court followed the rule set out in Sharp and Bartolini that, where a duty is well-established, a judicial redeterr mination under the Webb duty analysis is unnecessary. Id. And while the court in Yost cited to Western Golf and Delta Tau Delta,- it did not do so in the context of the Webb balancing test.

[16] When supreme court precedent is in apparent conflict, as it is between Kroger and Yost, we are bound to follow the court’s most recent pronouncement on the issue. Howse v. State, 672 N.E.2d 441, 444 (Ind.Ct.App.1996), trans. denied. Thus, we follow our supreme court’s analysis in Yost and hold that the Webb balancing test does not apply here, where the duty owed by the Bar, to its invitees is well-established. In particular, the Bar owed the Appellants a duty to take reasonable precautions to protect them from foreseeable criminal attacks, and we need not make an independent judicial determination as to the existence of that duty here. Yost, 3 N.E.3d at 515; Bartolini, 799 N.E.2d at. 1052. Rather, the issue of the foreseeability of whether one patron of a bar would shoot others is more appropriately resolved as a question of fact in the context of the bar’s alleged breach of its duty. See, e.g., Winchell v. Guy, 857 N.E.2d 1024, 1029 (Ind.Ct.App.2006) (following Bartolini, 799 N.E.2d at 1053-54).

[17] Here, the Bar’s sole contention in its summary judgment motion was that it did not owe a duty to protect the Appellants from Carter’s criminal acts because they were not reasonably foreseeable. But, as our supreme court has held, reasonable foreseeability does not determine duty where, as here, the duty is well-established. See Yost, 3 N.E.3d at 515; Bartolini, 799 N.E.2d at 1053; Sharp, 790 N.E.2d at 465. The Bar owed the Appellants a duty to protect them from the foreseeable criminal acts of third parties. As such, the Bar cannot satisfy its burden to affirmatively negate the duty element of the Appellants’ negligence claims. See Hughley, 15 N.E.3d at 1003. Thus, the trial court erred when it entered summary judgment in favor of the Bar, and we reverse and remand for further proceedings.

Reversed and remanded for further proceedings.

MATHIAS, J., and BRADFORD, J. concur. 
      
      . Yealde's prohibited guns on the premises.
     
      
      . All three victims survived their gunshot wounds.
     