Christopher M. Pogue, Appellant-Plaintiff v. III (2025)

MEMORANDUM DECISION

Case Summary

[1] Christopher M. Pogue appeals the trial court's grant of summary judgment to Money Flow, Inc. (“Money Flow”), Donna Rockey, the Rock Tavern a/k/a the Rock (“the Tavern”), Howard Johnson III, and April Fink (collectively, “Rock Tavern”) on Pogue's negligence and false imprisonment claims. We affirm.

Issues

[2] Pogue raises the following two restated issues:

I. Whether the trial court erred when it concluded that the undisputed material facts established that Rock Tavern owed no duty to Pogue.

II. Whether the trial court erred when it concluded that the undisputed material facts established that Rock Tavern did not restrain Pogue.

Facts and Procedural History

[3] In August of 2018, Money Flow owned and operated the Tavern. Rockey owned Money Flow and the premises on which Money Flow operated the Tavern. April Fink and Howard Johnson III were employees of Money Flow.

[4] On the night of August 24, 2018, Aaron Suggs and his sister went to the Tavern. After ordering a drink, Suggs's sister “got kind of mouthy” with two male patrons. App. v. 2 at 68. Fink, who was bartending, asked Suggs's sister to leave. Suggs apologized to the two male patrons, bought them beers, and walked with his sister out of the back door of the Tavern.

[5] The back door of the Tavern opens onto a “smoking garden[.]” Appealed Order at 2. The smoking garden is enclosed by an eight-foot-high wooden fence with a gate that is open during business hours. There are “16 to 20” cameras located on the premises of the Tavern, including cameras with a view of the smoking garden, the alley, the parking lot, and the street. Id. There is a “camera viewing screen” at the bartender's station that can be seen by the bartender and is on “at all times.” Id. When Fink was bartending, she checked the camera viewing screen “[a]bout every three or four minutes.” App. v. 2 at 139.

[6] The Tavern's video surveillance footage shows Suggs and his sister in the smoking garden. At around 1:10 a.m. on August 25, Suggs greeted Jacob Jeffery with a handshake and had a two-minute conversation with Jeffery and his friend, Pogue. At 1:12 a.m., Suggs and his sister exited the smoking garden through the gate into the parking lot and walked to a parked truck. At approximately 1:15 a.m., Suggs exited the parked truck and walked back to the gate of the smoking garden. Suggs entered through the gate, approached Pogue, and “assume[d] a fighting posture.” Appealed Order at 7. Suggs subsequently “square[d] up with Jeffery.” Id. However, there was no physical contact between Suggs, Pogue, and Jeffery. The verbal argument between the three men lasted approximately one minute, during which time Suggs's sister also reentered the smoking garden.

[7] Fink saw from the camera viewing screen that Suggs, Pogue, and Jeffery appeared to be verbally arguing in the smoking garden. Fink instructed Johnson to go out to the smoking garden to deescalate the situation, and Johnson did so. Johnson and Suggs's sister then escorted Suggs out of the smoking garden and to his truck in the parking lot. Suggs and his sister pulled out of the parking lot and appeared to drive away at approximately 1:17 a.m.

[8] Seventeen minutes later, at 1:34 a.m., Suggs approached the back of the smoking garden on foot. He was crouched over, covering his lower face with his t-shirt, and carrying a firearm aimed down at his side as he approached the gate to the smoking garden. Johnson was at the gate and walked past Suggs as Suggs entered the smoking garden. Within seconds of entering, Suggs began shooting. Suggs shot Jeffery as Jeffery was running out of the gate. Suggs then shot Pogue and left the smoking garden at 1:35 a.m. The first shooting lasted forty-five seconds. Approximately twenty seconds later, Suggs returned to the smoking garden and once again shot Pogue. Suggs left the smoking garden through the gate at 1:36 a.m. The second shooting lasted ten seconds.

[9] Fink had looked at the camera viewing screen when she heard the first gun shots. She saw Suggs in the smoking garden with his shirt over his lower face. Fink ordered that the front and back doors be locked and called 9-1-1. After the first round of gunshots, nobody entered or exited through the back door to the smoking garden, but Fink unlocked the front door to allow another patron to enter for shelter, then locked the front door again. The police arrived approximately four minutes after the second round of gunshots.

[10] On August 24, 2020, Pogue filed his Complaint against Rock Tavern, Suggs, and a patron of the bar on the night in question, Robert Karn.¹ The Complaint raised claims of negligence, false imprisonment, and resulting damages against Rock Tavern. On September 20, 2024, Rock Tavern moved for summary judgment on all claims against them. In support, Rock Tavern designated evidence, including a deposition transcript, affidavits, and the Tavern's surveillance footage from the night of the shootings. On February 7, 2025, following a January 10 hearing on the motion for summary judgment, the trial court issued its order granting summary judgment to Rock Tavern on all claims against them. This appeal ensued.

Discussion and Decision

[11] Pogue appeals the trial court order granting summary judgment to Rock Tavern on his negligence and false imprisonment claims. We review a grant or denial of a motion for summary judgment under the same standard used by the trial court; that is,

[t]he moving party bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Summary judgment is improper if the movant fails to carry its burden, but if it succeeds, then the nonmoving party must come forward with evidence establishing the existence of a genuine issue of material fact. In determining whether summary judgment is proper, the reviewing court considers only the evidentiary matter the parties have specifically designated to the trial court. See Ind. Trial R. 56(C), (H). We construe all factual inferences in the non-moving party's favor and resolve all doubts as to the existence of a material issue against the moving party.

Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012) (quotation marks and citations omitted).

[12] For purposes of summary judgment, 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. Hogan v. Magnolia Health Sys. 41, LLC, 161 N.E.3d 365, 369 (Ind. Ct. App. 2020) (quoting Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)), trans. denied. In reviewing a summary judgment, we consciously err “on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.” Hughley, 15 N.E.3d at 1004.

[13] Here, the material facts are not in dispute. Rather, the parties disagree about whether those facts establish Rock Tavern's negligence and false imprisonment of Pogue.

Negligence

[14] Injured parties may recover for their damages under a negligence claim by proving: (1) the defendant owed them a duty; (2) the defendant breached that duty through conduct that fell below the appropriate level of care; and (3) the defendant's breach caused injury to the plaintiff(s). Cave Quarries, Inc. v. Warex LLC, 240 N.E.3d 681, 685 (Ind. 2024). “Absent a duty, there can be no negligence or liability based upon the breach.” Goodwin v. Yeakle's Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). Whether a duty exists is a question of law to be decided by the court. Id.

[15] A landowner owes its invitees a duty to take reasonable precautions to protect invitees from foreseeable criminal acts of third persons. Id. at 388. In the context of duty, whether an act is foreseeable is a question of law to be determined by the court. Id. at 388-89. Foreseeability within the context of duty

is a general threshold determination that involves an evaluation of (1) the broad type of plaintiff and (2) the broad type of harm. In other words, this foreseeability analysis should focus on the general class of persons of which the plaintiff was a member and whether the harm suffered was of a kind normally to be expected—without addressing the specific facts of the occurrence.

Rogers v. Martin, 63 N.E.3d 316, 325 (Ind. 2016).

[16] In Goodwin, as here, the “broad type of plaintiff ․ is a patron of a bar and the harm is the probability or likelihood of a criminal attack, namely: a shooting inside a bar.” 62 N.E.3d at 393. As the Supreme Court noted in Goodwin,

although bars can often set the stage for rowdy behavior, we do not believe that bar owners routinely contemplate that one bar patron might suddenly shoot another. To be sure, we doubt there exists a neighborhood anywhere in this State which is entirely crime-free. Thus, in the broadest sense, all crimes anywhere are “foreseeable.” But to impose a blanket duty on proprietors to afford protection to their patrons would make proprietors insurers of their patrons’ safety which is contrary to the public policy of this state. Further such a blanket duty would abandon the notion of liability based on negligence and enter the realm of strict liability in tort which assumes no negligence of the actor but chooses to impose liability anyway. We decline to impose such liability here. In sum we hold that a shooting inside a neighborhood bar is not foreseeable as a matter of law.

Id. at 393-94 (citation modified).

[17] However, the Supreme Court noted in a subsequent case that a “key factor” when evaluating the broad class of plaintiff and broad type of harm is “whether the landowners knew or had reason to know about any present and specific circumstances that would cause a reasonable person to recognize the probability or likelihood of imminent harm.” Cavanaugh's Sports Bar & Eatery, Ltd., v. Porterfield, 140 N.E.3d 837, 840 (Ind. 2020). Thus, while “we continue to decline to impose a comprehensive duty on proprietors to afford protection to their patrons,” id. at 838, we recognize that such a duty may arise when landowners have “contemporaneous knowledge” of an escalating threat “of imminent harm” to a patron from a third party, id. at 841 (citation modified). See also, e.g., Certa v. Steak ‘n Shake Operations, Inc., 102 N.E.3d 336, 341 (Ind. Ct. App. 2018) (citation modified) (“What the landowner knew or had reason to know is a pivotal consideration in determining foreseeability.”), trans. denied.

[18] For example, in Hamilton v. Steak ‘n Shake Operations Inc., where a patron was shot in the face after a verbal altercation that escalated over a period of thirty minutes, a panel of this Court found the “broad type of plaintiff” was one who had been “subjected to escalating threats” of harm from a third party, of which the landlord was aware. 92 N.E.3d 1166, 1170 (Ind. Ct. App. 2018), trans. denied. Employees of the landowner had witnessed increasing hostilities and intensifying confrontation and threats of physical violence between two groups of patrons over a thirty-minute period. The court found that the restaurant's knowledge of the “escalating thirty-minute encounter that included verbal threats and taunts, blocking of the exit, and pounding on windows in an effort to incite a physical altercation” gave rise to “a duty to take reasonable steps to provide for patron safety.” Id. at 1173. The court distinguished Goodwin and Rogers, noting that both involved a harm that was “sudden and without warning” and therefore not foreseeable by the landowners. Id.

[19] The case before us is more like Goodwin and less like Hamilton and the other cases upon which Pogue relies.² Here, the material facts establish that there was no lengthy and escalating confrontation that would have led a reasonable landowner to believe a shooting was possible. Suggs had not displayed any violent tendencies prior to the shooting; rather, he apologized for his sister being “mouthy” to other patrons at the bar and bought them drinks. App. v. 2 at 68. He voluntarily left the inside of the bar with his sister and went into the smoking garden, where he greeted, shook hands with, and socialized with other patrons without incident. He spoke with Pogue and Jeffery the first time at 1:10 a.m. without displaying any agitation at all, much less an indication of an intention to fight. And, after speaking with them for about two minutes, he simply walked out of the gate with his sister.

[20] The first sign of any conflict at all was when Suggs came back into the smoking garden three minutes later at 1:15 a.m. At that time—for the first time—he “assume[d] a fighting posture” and engaged in a verbal argument with Pogue and Jeffery for about one minute. Appealed Order at 7. However, he did not engage in any physical contact with Pogue or Jeffery, and he did not resist in any way when Johnson escorted him out of the smoking garden. Appealed Order at 7. Suggs can then be seen on the surveillance footage leaving the scene without further incident, driving away with his sister.

[21] For the next seventeen minutes, the patrons of the smoking garden “return[ed] to their socializing” without incident. Id. at 7. During that time, there was no escalation of tensions and no indication that Suggs would come back, much less armed with a loaded gun and ready to shoot patrons. Suggs doing so was sudden, unexpected, and without warning, i.e., unforeseeable. Cf., e.g., Bojak's Bar & Grille, 170 N.E.3d at 267 (finding a duty where the bar “had specifically been warned” of a prior altercation between patrons); Buddy & Pals III, 118 N.E.3d at 40, 43 (finding a duty where bouncers knew a large, angry, intoxicated male patron had had a physical confrontation with another patron, resisted being ejected from the bar, and then tried to get back into the bar). Thus, Rock Tavern had no contemporaneous knowledge of “escalating tensions” or a threat of imminent harm to its patrons.

[22] We agree with the trial court's observation that Pogue seeks to impose upon Rock Tavern a duty “to be vigilant to every argument had on its premises and ensure that measures are taken that those parties never come in contact with one another under the subject bar's roof again,” regardless of whether the bar has knowledge of escalating tensions and imminent harm. Appealed Order at 9. As the trial court noted, there is no support for such a general duty in Indiana caselaw. See, e.g., Cavanaugh's Sports Bar, 140 N.E.3d at 838-41.

[23] The trial court did not err when it granted summary judgment to Rock Tavern on Pogue's negligence claims, as Rock Tavern had no duty to Pogue “due to the lack of foreseeability” of imminent harm. Appealed Order at 9.

False Imprisonment

[24] Pogue also challenges the grant of summary judgment to Rock Tavern on his claim that Rock Tavern falsely imprisoned him. “The tort of false imprisonment occurs when there is an (1) unlawful (2) restraint (3) upon one's freedom of movement or the deprivation of one's liberty (4) without consent.” Donovan v. Hoosier Park, LLC, 84 N.E.3d 1198, 1207 (Ind. Ct. App. 2017). The undisputed material facts establish that Pogue's claim fails on elements (1) through (3).

[25] First, Rock Tavern did not restrain Pogue's freedom of movement. It is undisputed that the gate between the smoking garden and the parking lot remained unlocked and open throughout the entire night and early morning of the shootings. Pogue could have left the smoking garden through the unlocked and open gate. Pogue notes that he felt unsafe doing so due to Suggs's presence; however, that goes to whether Suggs possibly falsely imprisoned him, not Rock Tavern. Rock Tavern took no actions that made the gate in the smoking garden inaccessible; that is, they did not restrain Pogue's freedom of movement. This was demonstrated by the undisputed facts that the gate remained open and that Jeffery exited through that gate during the shootings. Second, when Rock Tavern locked the doors into the Tavern itself, that was not “unlawful,” and Pogue does not attempt to argue otherwise. Rock Tavern locked its doors to protect the patrons inside the Tavern, while still leaving the gate to the parking lot open for the use of patrons in the smoking garden.

[26] The trial court did not err when it granted summary judgment to Rock Tavern on Pogue's false imprisonment claim.

Conclusion

[27] The trial court did not err when it granted summary judgment to Rock Tavern on Pogue's negligence and false imprisonment claims. The undisputed material facts establish that Rock Tavern owed no duty to Pogue due to the lack of foreseeable harm and that Rock Tavern did not unlawfully restrain Pogue's freedom of movement.

[28] Affirmed.

FOOTNOTES

1.   The Complaint erroneously alleged that Karn was an employee of the Tavern, Money Flow, Inc., “and/or” Rockey. App. v. 2 at 39. The trial court found that Karn “was simply a patron and not employed by Money Flow.” Appealed Order at 3, n.4. Karn was not among the Rock Tavern defendants granted summary judgment and does not participate in this appeal.

2.   Pogue also relies upon Bojak's Bar & Grille v. Henry, 170 N.E.3d 264 (Ind. Ct. App. 2021); Buddy & Pals III, Inc. v. Falaschetti, 118 N.E.3d 38 (Ind. Ct. App. 2019), trans. denied; and Certa v. Steak ‘n Shake Operations Inc., 102 N.E.3d 336 (Ind. Ct. App. 2018), trans. denied. However, as our Supreme Court noted in Cavanaugh's Sports Bar, as in Hamilton, those cases found a duty only when the landowners had contemporaneous knowledge of escalating tensions and a threat of imminent harm. 140 N.E.3d at 841-42.

Bailey, Judge.

Judges Brown and Weissmann concur. Brown, J., and Weissmann, J., concur.