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Merchants National Bank v. Simrell's Sports Bar & Grill12/20/2000
FOR PUBLICATION
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
Merchants National Bank, as Administrator of the Estate of Christopher C. Merchant (the "Administrator"), filed a wrongful death suit against Simrell's Sports Bar & Grill, Inc. ("Simrell's"), after Merchant, a patron of Simrell's, was shot and killed on the sidewalk outside of the tavern. Simrell's moved for summary judgment arguing that it owed no duty to Merchant as a matter of law. Following a hearing, the trial court granted summary judgment in favor of Simrell's. The Administrator appeals.
We affirm.
ISSUES
The Administrator raises three issues for our review which we restate as:
1. Whether the trial court erred when it concluded, as a matter of law, that Simrell's owed no common law duty to Merchant.
2. Whether the trial court erred when it concluded, as a matter of law, that Simrell's did not gratuitously assume a duty to Merchant.
2. Whether the trial court erred when it concluded that Simrell's was not liable for Merchant's death pursuant to the Dram Shop Act, Indiana Code Section 7.1-5-10-15.5.
FACTS
On Tuesday, January 7, 1997, Merchant entered Simrell's, located in Terre Haute. Merchant remained inside the bar until closing time at approximately 3:30 a.m. and then left with two friends. Another group of patrons, including Theodore Brewer, had left the bar several minutes earlier. After Merchant exited Simrell's, an altercation erupted involving Merchant and Brewer on the sidewalk outside the bar. Brewer shot and killed Merchant.
DISCUSSION AND DECISION
Standard of Review
When reviewing the grant or denial of a summary judgment motion, this court applies the same standard as the trial court. Miles v. Christensen, 724 N.E.2d 643, 645 (Ind. Ct. App. 2000), trans. denied. Summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. See Ind. Trial Rule 56(C); Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind. 1998). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Shell Oil, 705 N.E.2d at 983-84.
To prevail on a motion for summary judgment in a negligence case, the defendant must demonstrate that the undisputed material facts negate at least one element of the plaintiff's claim. Ward v. First Indiana Plaza Joint Venture, 725 N.E.2d 134, 135-36 (Ind. Ct. App. 2000), trans. denied. Once the moving party has met this burden with a prima facie showing, the burden shifts to the nonmoving party to establish that a genuine issue does in fact exist. Id. at 136. The party appealing the trial court's grant of a motion for summary judgment bears the burden of persuading this court that the trial court erred. Id.
Issue One: Common Law Duty
We first address the Administrator's contention that the trial court erroneously concluded that Simrell's did not have a common law duty to protect Merchant from Brewer's criminal act. To recover in negligence, a plaintiff must establish: (1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff; (2) a failure on the part of the defendant to conform his conduct to the requisite standard of care; and (3) an injury to the plaintiff proximately caused by the breach. Van Duyn v. Cook-Teague P'ship, 694 N.E.2d 779, 781 (Ind. Ct. App. 1998), trans. denied. Absent a duty, there can be no breach and, therefore, no recovery in negligence. Id.
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