(Plaintiff Below), v. WESTERN GOLF ASSOCIATION, and EVANS SCHOLARS
FOUNDATION, Appellees (Defendants Below).
Indiana Supreme Court Cause No. 79S02-9907-CV-379
SUPREME COURT OF INDIANA
712 N.E.2d 983; 1999 Ind. LEXIS 421
July 12, 1999, Decided
PRIOR HISTORY: [**1] APPEAL FROM THE TIPPECANOE SUPERIOR COURT. The
Honorable George J. Heid, Judge. Cause No. 79D02-9310-CP-131. Indiana Court of
Appeals Cause No. 79A02-9507-CV-393.
COUNSEL: FOR APPELLANT: Michael J. Stapleton, Cheryl M. Knodle, BALL,
EGGLESTON, BUMBLEBURG & McBRIDE, Lafayette, Indiana.
FOR APPELLEE: Bryce Bennett, Jr., Laura K. Taylor, Stephen M. Wagner, RILEY
BENNETT & EGLOFF, Indianapolis, Indiana.
JUDGES: SELBY, J. SHEPARD, C.J., and DICKSON and BOEHM, JJ., concur.
SULLIVAN, J., concurs in result without separate opinion.
OPINION BY: SELBY
[*984] ON CIVIL PETITION FOR TRANSFER
Appellant L.W. brings this appeal of an adverse summary judgment ruling in a
negligence action. This case is one of three that we decide today on the common
premises liability issue of whether a landowner/invitor ever owes an invitee a
duty to take reasonable care to protect the invitee from the criminal acts of a
third party. After being raped in the building where she lived, L.W. filed a
complaint for damages against the owners of the building, Western Golf
Association ("Western Golf") and Evans Scholars Foundation ("ESF").
Western Golf and ESF filed a joint motion for summary judgment [**2] on the
grounds that neither owed a duty to L.W. and, in the alternative, that any
action on their part was not the proximate cause of the injury. After a hearing,
the court granted the motion. L.W. appealed the trial court's ruling to the
Court of Appeals, and the Court of Appeals affirmed the trial court's decision.
L. W. v. Western Golf, 675 N.E.2d 760 (Ind. Ct. App. 1997). L.W.
then filed a petition for transfer with this Court. We now grant transfer to
address the following issue: whether defendants owed L.W. a duty of reasonable
care to protect her against foreseeable criminal acts. We hold that the trial
court properly granted summary judgment.
On the night of October 15, 1992, L.W. and some friends went to a bar located in
West Lafayette, Indiana. At the time, L.W. was a sophomore and Evans Scholar at
Purdue University. The Evans Scholarship, as sponsored by Western Golf
and distributed by ESF, is awarded to deserving golf caddies so that they may
attend certain universities. As required in order to keep her scholarship at
Purdue, L.W. lived in the Evans Scholar house. After becoming intoxicated at the
bar, L.W. was helped back to the house and to her [**3] room by several of her
One of the people who helped L.W. get to her room was Brent Jenkins. At the
time, Jenkins was a freshman Evans Scholar and also a resident of the Evans
Scholar house. L.W.'s friends laid her on her bed. She was fully clothed and
passed out. As he was leaving the room with everyone else, Jenkins removed
After leaving L.W.'s room, Jenkins returned to his own room and listened to some
music. Later, he went to the computer room in the house so that he could type an
English paper. The door to the computer room, however, was locked, so he had to
return to his room in order to get the key. As he was walking back to the
computer room, he passed by L.W.'s room. Jenkins entered L.W.'s room and raped
her as she lay unconscious. Jenkins confessed to the rape and he was
subsequently convicted and incarcerated.
L.W. brought a negligence action against Western Golf and ESF for the
damages she sustained as a result of the rape. L.W. alleged that defendants had
a duty to provide for a safe living environment, that defendants breached this
duty, and that the breach proximately caused her injuries. As was true in two
other cases decided today, [**4] Motz v. Johnson, 712 N.E.2d 968, 1999
Ind. LEXIS 419 (Ind. 1999) and Vernon v. Kroger Co., 712 N.E.2d 976, 1999
Ind. LEXIS 420 (Ind. 1999), defendants filed a motion for summary judgment on
the issue of duty. The court granted the motion. We now grant transfer to
address the issue before us in this case, like the other cases, whether the
trial court properly ruled on the issue of duty.
This issue revolves around whether defendants owed plaintiff a duty to take
reasonable care to protect her from the criminal acts of a third party. Indiana
courts have held that, in certain factual situations, landlords have a duty to
take reasonable precautions to keep the property safe for their tenants. See
Center Management Corp. v. Bowman, 526 N.E.2d 228 (Ind. Ct. App. 1988). This
would seem especially true in this case as L.W. was required by defendants to
live in the Evans Scholar house if she wished to keep her scholarship. This
being so, we now confront the common question of the three opinions decided
today: whether Western Golf and ESF owed L.W. a duty to take reasonable
care to protect her against a third party criminal attack. As announced in the
lead opinion, Motz v. Johnson, [**5] a [*985] court answers this
question by asking whether the totality of the circumstances demonstrates that
the criminal act was reasonably foreseeable. 712 N.E.2d at 973, 1999 Ind. LEXIS
419. When determining whether the totality of the circumstances supports the
imposition of a duty, a court must look to "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."
712 N.E.2d 968, 1999 Ind. LEXIS 419, *11. "A substantial factor in the
determination of duty is the number, nature, and location of prior similar
incidents, but 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." 712 N.E.2d 968, 1999 Ind. LEXIS 419, *14. While landowners have no
duty to ensure invitee's safety, they do have a duty to take reasonable
precautions to prevent foreseeable criminal acts against invitees.
The record provides sufficient evidence for us to find that defendants did not
owe L.W. a duty to protect her from this criminal act under the circumstances of
this case. The evidence shows that co-ed living at the Evans Scholar
house [**6] was not always a pleasant experience for the women. For example,
some of the male scholars had made sexually-charged comments to the female
scholars and female scholars were sometimes placed in embarrassing situations
(such as being tricked into walking in on males watching an X-rated movie). The
record also shows that a male scholar was once about to hit a female scholar,
but was tackled before he could. While the evidence casts the Evans Scholar
house in a poor light and suggests that living in the Evans Scholar house as a
woman was sometimes untenable, it does not show that a legal duty existed in
this case. The record does not contain evidence of prior violent acts or sexual
assaults at the Evans house. Although these childish pranks and actions, even if
isolated to the few individuals mentioned, are deplorable, we do not believe
that it is enough on its own, at least as presented in this case, to make a rape
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also presents, as evidence, a brochure produced by Purdue University. The
brochure provided statistics on the occurrence of different crimes (including
robbery, assault, burglary, and rape) on Purdue's West Lafayette campus. This
evidence is not the same as that which was presented and considered in Motz
(statistics which were inferentially known to the fraternity concerning rape and
sexual assaults occurring at fraternity houses and concerning the increased
likelihood of rape and sexual assault when alcohol was involved at a fraternity
house). 712 N.E.2d at 973. Though both cases present crime statistics, the crime
statistics in Motz related strictly to fraternities and why a sexual
assault was more likely to occur there and under those circumstances than
elsewhere. Thus, the statistics in Motz showed the fraternity (as do
prior similar incidents) that a sexual assault was reasonably foreseeable at the
fraternity house under the circumstances that existed. The statistics in this
case, however, show only that crimes such as this occur on college campuses, as
they do elsewhere. The statistics, in other words, do not provide any basis for
notice to defendants that a rape was any more foreseeable on their premises than
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[**7] Thus, we hold that defendants had no duty, based on a premises liability
theory, to take reasonable care to protect L.W. from the criminal act of
Jenkins. As to any other issues which were addressed by the Court of Appeals, we
summarily affirm the decision of the Court of Appeals. Ind. Appellate Rule
We affirm the grant of summary judgment.
SHEPARD, C.J., and DICKSON and BOEHM, JJ., concur.
SULLIVAN, J., concurs in result without separate opinion.
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