*1 inflicting within the crime mitted offense
physical injury robbery. We must Ember, Roger EMBER and Jane (Plaintiffs), Appellants therefore determine whether Defendant is correct in his contention that a tire iron is 85-12-1-1, "weapon" under IC not a (Defendant). B.F.D., INC., Appellee the crime for which he was therefore No. 2-883-A-291. not included within the fac convicted was charging allegations of the instrument. tual Indiana, Appeals Court of object qualifies Second District. whether an To determine "dangerous deadly phrase or within 13, March weapon," we must look to its manner of opinion use. The of this Court Kidwell 430, (1967), 249 Ind. 230 N.E.2d v. State 892 U.S. cert. denied 2326, 20 L.Ed.2d instructs:
S.Ct. particular object
Whether a is or is not a
dangerous deadly weapon depends in or
many cases the manner in which it therefore,
is And whether the affi- used. in this case facts
davit stated constitut
ing public depends upon offense how knife was shown have been used. 433-34,
Jones starting pistol N.E.2d we held that a blanks, only
which could fire but when bludgeoning
used as a instrument to inflict
injury, qualified dangerous deadly as "a
weapon" support sufficient conviction 385-12-1-1.
under IC
We therefore hold that the factual alle-
gations charged which here that the De-
fendant, engaged in commission of
robbery physical injury by striking inflicted iron,
the victim with a tire are sufficient resulting judg- conviction. The post-conviction
ment of the trial court
affirmed.
GIVAN, C.J., DeBRULER, PIVAR- JJ., SHEPARD, concur.
NIK *2 generated by the Pub's business. appel- Raskosky, Wayne, Fort Earl 40. Davis knew of several instances of lants. activity on the streets criminal Clifton, Jr., Lyons, John M. F. John building. building next door to the Barrett, Kimbrough, Barrett & M. Thomas into, broken tavern was and at least three appellee. McNagny, Wayne, Fort *3 parked were broken or four cars into parking in the rear lots or on BUCHANAN, Judge. Chief of streets. Davis was also aware at least CASE SUMMARY violence, or six incidents of both inside five (Em- Plaintiffs-appellants Roger Ember and outside tavern. Jane, wife, ber) appeal his the trial and year operation, After its first the Pub in fa- entry summary judgment court's experienced difficulty renewing Hquor B.F.D., Inc., defendant-appellee do- vor of sup- license. In the fall of the Pub Italian Pub ing as O'Sullivan's business application for renewal with a ported its (the Pub), errone- claiming the trial court Beverage letter to the Indiana Alcoholic breach ously found that the Pub did not detailing complaints Commission he was at- any duty owed Ember when operation against the Pub's and the solu- by three assailants and beaten tacked employed by tions the Pub owners to that the street from the Pub. across large The that trash date. letter revealed reverse and remand. We placed outside the tavern and cans were up youths employed pick that two FACTS daily presence to alleviate the of bot- trash most favorable to the nonmov- The facts tles, cans, remedy and other litter. To pleadings by as revealed and ing party, problems, existing parking lot parking court, the trial show depositions before improved the tavern was and warn- behind began corporation which that the Pub is illegally ings and citations were issued to July of 1978. The operating a tavern furthermore, vehicles; attempts to parked older, mixed in an resi- Pub is situated promised if adjoining lease an lot were neighborhood dential and commercial Enlargement parking problems continued. where Runnion Wayne at the corner Fort police offi- the restroom facilities and a Main deadends into Street. Street presence outside the tavern deterred cer's along by a sidewalk building is surrounded building. The Pub urination outside streets, is also and Main Street bound- both officers, police employed two uniformed opposite on the side of the a sidewalk ed and one main- one stationed at door addition, the Pub. In there is a street from outside, to solve the excess noise tain order parking directly lot across Main Street regard posted the officer problem. With The.ownership of this lot from the Pub. outside, Alcoholic the letter to the Indiana opening, after not established. Soon Beverage maintained that Commission "[a] "hottest bar in known as the Pub became police officer is on from uniformed in- at 48. As crowds town." Record closing every Wednesday p.m. to 10:00 during the first months of busi- creased Monday Tues- through Saturday and and ness, complaints received the Pub responsibility day as needed. If is the neighbor- nearby and the local residents park- to maintain order in the officer problems attributed association due to hood any adjoining as streets." ing lot as well patrons. to the Pub's (emphasis supplied). at 75 M. deposition, in his Todd As related represented that a letter also Pub's (Davis), co-manager and sharehold- Davis complaint to a had been found solution complaints centered around er indicated the lodged against the Pub with Ombuds- noise, urination in instances of excessive Office, agency, Mayor city lot, man's throwing, and parking bottle "things along the crowds" com- Wayne. response that went with to the of Fort plaint, the Pub's owners met with time, police and that was to have a offi- neighborhood association Mayor's of- evenings cer on in the and to contin- fice. As a result of that meeting, the Pub always done, ue to do as we had to walk flyer November, around ourselves when we were. work- distributed 1980: - times, ing, sporadic and check the "4 2 2 5 8 9 6 parking lots in the area and so something neighborhood If forth is dis- turbing you thing kind happen- property or someone's you wish for try O'Sullivan's to to correct ing." problem even if it doesn't (emphasis Record at 46-47 supplied). In pertain to us we would be re- deed, the Pub maintained and civilian sponsive helpful you if will do the patrols premises outside its due to its ac following:
knowledged adverse effect on the immedi neighborhood. ate Davis admitted that of CALL AND ASK FOR A PUB OWNER *4 employed by had, fact, ficers the bar OR THE MANAGER . . . AND ASK rendered problems assistance with HIM HIS NAME STATE NAME YOUR neighborhood which occurred off the Pub's AND ADDRESS premises. was one down the "[There DESCRIBE WHAT IS HAPPENING AND WHERE street, nothing and it had to do with us ... police one of the officers that worked for GIVE ANY DESCRIPTIONS OF PEOPLE us it." Record at 48. This officer OR VEHICLES MAY YOU HAVE handled NOTICED posted was at the door "and went outside help STAY INSIDE YOUR HOME UNLESS neighborhood to with a problem down YOU WISH TO PARTICIPATE the street." Record at 43. CALL CITY POLICE IF IT AIS employed The tavern off-duty police offi- SERIOUS INCIDENT . . . BUT security cers as every night begin- until the _. GENERALLY . . CALL US FIRST ning of when began the crowds - . WE HAVE A POLICE OFFICER security decrease and measures were cur- AFTER 10:30 and SEVERAL WILLING However, tailed. security employed EMPLOYEES PRIOR TO THAT appear when bands were scheduled to or on CALL THE PUB AGAIN IF NO ACTION holidays, certain such Day, as St. Patrick's HAS CORRECTED THE PROBLEM large anticipated. when crowds were Al- WITHIN SEVERAL MINUTES though security routinely expected IF PUB LINE IS BUSY KEEP TRYING _. begin duty p.m., around 10:30 . due to the . WE TRY TO LIMIT USE OF OUR PHONE large expected Day, crowd on St. Patrick's off-duty police an officer was hired to days Sometime the next few following an incident one of the owners addition, begin p.m. work at 8:00 Davis you of the Pub will contact to see if the personally patrolled testified that he out- incident was if resolved or there is building side the more than usual due to anything else that needs to be done reported the crowds. The officer you may just wish to let us know p.m., late. At only 8:00 Davis was the it, how we handled If ete. we fail to do person patrol, parking on and he was simply pub this call the and remind us to give you lot behind the Pub. report on it.
422-5896 422-5896 422-5896" Ember, himself, off-duty policeman (emphasis Record at 74 supplied). approximately Davis arrived at the Pub at 8:00 indicated flyer that the written p.m. regular patron was distrib- He was a of the estab- neighborhood association, "to uted any- lishment, visiting weekly the tavern on a body (em- that wanted it." at 45 Record particular evening, basis. On this Ember phasis supplied). additionally Davis as- arranged to meet his wife and another sured neighborhood residents: couple at the Pub to celebrate St. Patrick's
"We told them that we would continue to arrived, Day. When Ember he observed a doing do what we had been noisy twenty thirty persons the entire crowd of properly granted trial court Whether the beverages outside consuming alcoholic that, summary judgment theory on the awaiting entry. The crowd was Pub law, the Pub did not a matter of as stretching line around as a described duty to any gratuitously assumed breach only park- building. The Pub's side of premis- persons outside the Pub's protect the rear of the build- ing located at lot was es? not own or apparently did ing. The Pub parking lot in the area any other lease DECISION including Ember routine-
although patrons frequent, lots while ly used other business ar- PARTIES' CONTENTIONS-Ember There is no indication ing tavern. gra- constituted the gues the Pub's conduct that other area businesses the record protect assumption tuitous To obtain a question. open at the time parking the streets and lots patrons on his wife and as to locate vantage point so the Pub breached adjacent to the Pub and crowd, parked his Ember friends failing duty by gratuitously assumed directly straddling the sidewalk automobile duty, by permit- officer on to have an en- from the Pub's across Main Street congregate unruly outside ting an crowd complaint, Em- alleged in the As trance. tavern. . to the to cross the street about ber was protect per- denies The Pub approached Ember three men when tavern premis- public ways to its sons on beating on his automobile. began gratuitous duty, if it es. Even assumed on The trio then walked at 11. rely did not on says it that Ember *5 in parked vehicle which their toward security is provide which representations to of at the end beyond the sidewalk grass the negligence. any cause of action fatal and left his automobile Ember the block. trial court erred CONCLUSION-The twen- group approximately approached the on the basis entering summary judgment assail- away. Remarks Ember's ty feet assump- gratuitous no there could be that ensuing argument indicate during the ants duty a to Ember. tion of regular another Ember to be they believed appeal does not neces of this Resolution event, In the the tavern. patron of body of lengthy recitation of a sitate Ember, inflicting severe men attacked infu- summary surrounding judgment. See law The required hospitalization. ries which Procedure, 56. We Trial Rule Ind. Rules of near the assailants' place at or attack took pertinent to our conclusion recognize as do vehicle, escaped. and the parked assailants summary conventional wisdom confrontation, and initial time of the At the negli appropriate rarely judgment is attack, patrolling Davis Verplank v. Commercial gence actions. off-duty parking lot and rear Pub's Ind.App. 4, (1969), 251 N.E.2d 145 Bank 32 duty. yet not arrived for police officer causation, negligence, The issues 52. 6, 1981, a Ember filed On November deter rarely can be reasonable care and alleging negli- the Pub complaint against law; rather, they are mined as a matter sought damages for loss genee; Jane also for determination appropriately left most upon pleadings Based of consortium. v. Glock of fact. Bassett by the trier Davis, depositions of Ember and the 439, 18. 368 N.E.2d (1977), Ind.App. 174 judgment summary court rendered the trial here. is the case Such concluding there was of the Pub favor may premised be Negligence actions and the material fact genuine issue of no duty aid one legal imposition of a on the any duty" Em toward Pub "did not breach Pub. Ind. Perry v. Northern peril. E.g.,. at 173-75. ber. 44, (1982), Ind.App., 433 N.E.2d Serv. Co. legal no Normally there is denied. trans. ISSUE stranger. The the aid of a duty to come to protect legal duty to aid or imposition for review: issue is raised One
769 person dependent reasonably prudent person. Plan-Tec, another the exist- Inc. special a relationship. (1983), ence of Wiggins Ind.App., v. 443 N.E.2d 1212.
Familiar relationships imposing a duty of reasonable care include those of recognizes gratuitous Indiana invitees, landowners common carriers to who, assumption duty by one through passengers, innkeepers guests. Of agreement, conduct or affirmative assumes particular duty interest here is the duty and undertakes a to act. Board of owner, engaged in tavern the sale of intoxi (1981), v. Hatton Ind.App., Comm'rs 427 cating beverages, to exercise "reasonable N.E.2d trans. denied. Three recent protect guests patrons care to Indiana cases demonstrate the course of irresponsible persons injury at the hands of affirmative conduct which will they knowingly permit whom to be gratuitous assumption duty. In Perry, premises." Park Demo about Glen Ind.App. supra, independent employ contractor's Club, Kylsa cratic Inc. working plant ee at NIPSCO sustained 213 N.E.2d 39 injuries requested by after he was the con generally duty of a tavern owner includes tractor's foreman to housing weld fan adequate provision of an staff to ground feet above the without the disorderly aid of premises and to control conduct. scaffolding safety apparatus. or other E.g. v. Mocettini Slawinski Cal. App.2d Cal.Rptr. 613. the absence of a duty contractual or the maintenance of hazardous instrumentalities Pub, however, premises urged by As premises, on NIPSCO's the trial court en injuries liability of a tavern owner for summary judgment tered in favor of NIP- patrons persons not extend does to third SCO, finding NIPSCO owed no beyond the boundaries of the tavern's job safety. reasonable care relative to However, premises. inquiry does not appellate Although court reversed. stop there. The of a tavern owner to give right contract did not NIPSCO the persons beyond the boundaries of a tavern control the manner in which contractor assumed. be *6 work, performed his NIPSCO have Assumption Gratuitous safety nevertheless assumed control of on job. Specifically, regular the NIPSCO held frequently has Justice Cardozo been safety meetings employed safety in quoted subject: on "It is ancient learn spectors job on the site. NIPSCO's affirm act, ing that one who assumes to even conduct, ative which had no contractual though gratuitously, may thereby become basis, genuine regard raised a issue of fact subject duty acting carefully, the of if to he ing assumption duty supervise the of a to acts at all." H.R. Moch Co. v. Rensselaer safety reasonably pru manner a of (1928), 160, 167, 247 N.Y. Water Co. 159 Id., person. Similarly, dent at 49-50. (quoting N.E. Shepard 898 Glanzer v. Planr-Tece, supra, (1922), 236, 239, the defendant construc 233 N.Y. 135 N.E. director, manager appointed safety tion a 276), Prosser, accord W. Handbook of safety meetings, safety pre held ordered (4th 1971). Indeed, Law Torts 345 ed. § cautions, safety inspections and conducted gratuitous assumption duty of a was Although on a construction site. the con succinetly expressed in early Indiana case manager contractually struction was not "Although law: no assistance be exacted responsible safety job, its con law, on the any under the if be tendered it must present jury ques duct was sufficient to a negligently not be rendered." Pere Mar manager assumed a tion on whether quette Strange R. Co. v. 171 Ind. 160, 169, duty provide place to at a safe work. Id. assumption 84 N.E. 823. The 1220; As Clyde see also E. & Williams duty requisite special creates the rela tionship parties between the and the corre Ind.App. socs. v. Boatman duty sponding (engineering to act the manner of a firm's as- N.E.2d supervise safety at Thus, duty to the tavern. Record at 48. the Pub's sumption of fact). question give a representations site was and conduct do rise to construction it a reasonable inference that assumed clearly demon- of cases trilogy This surrounding patrol the area its duty to conduct actor's affirmative that the strates (including protect persons premises and to by a evaluated must be representations vicinity from criminal patrons) within gra- that duty a whether to determine jury duty activity. scope exact such tuitously assumed. particu gratuitously assumed under these record before us in the The facts jury is a matter lar circumstances dep- pleadings and in the are contained ogitions based on an evaluation determination If considered and Davis. of Ember representations. conduct and the Pub's nonmoving party, favorably to most Hatton, supra, at 699-700. Ember, a reasonable infer facts raise a has assumed the Pub ence that aspect of whether a Another premises surrounding its patrol the area gratuitously assumed is whether has been vicinity persons its protect it, conduct, con or lack the defendant's dis activity.1 The Pub harmful or criminal Mis or nonfeasance. stituted misfeasance phone flyer with a emblazoned tributed negligent or mis is conduct active feasance implored area residents which liability for a number and will conduct police in case of the Pub before call gratuitous performance of a in the breach flyer neighborhood. Plan-Tec, supra, at problems duty. ly assumed if concern expressed the Pub's clearly hand, is a other nonfeasance 1221. On the neighborhood is disturb "something in the perform. or failure to complete omission even if property ... ing you or someone's argues, correctly 1220. As the Pub Id. at at the Pub. Record pertain to" doesn't it nonfeasance, in with connection liability for Davis, co-owners of the Pub's duty, confinedto situations one gratuitous 74. flyer was distribut managers, admitted detrimentally relied the beneficiaries when association, any neighborhood ed "to Hatton, supra, at performance, on Thus, at 45. it." Record wanted body that of harm. increased the risk the actor when dissemination contemplated wide the Pub Plan-Tec, supra, at help persons offer of a broad liability for nonfea- barring The rule Additionally, Davis vicinity of its business. impose in the reluctance is rooted sance residents neighborhood had assured relationship special duty of care absent patrol Pub staff would of the members example, an ex parties. For "any between to check for the area parking lots in aid a required to is not pert swimmer happening." thing that kind of McCarthy drowning person, Handiboe also written The Pub had 46-47. *7 nor App. 151 S.E.2d 114 Ga. Beverage Alcoholic the Indiana a letter to duty to aid any affirmative city under is a detailing steps it had taken Commission streets. helpless on its vicinity peace and order persons found preserve to (1978), 176 Finally, in Warren Indianapolis City establishment. of its business Similarly, N.E.2d 1163. Ind.App. from the Pub security officer past a is without more promise gratuitous neighborhood a mere helped with a in fact had duty care. W. though, impose a in Davis's own to problem even insufficient example, Prosser, 344. For supra, at us words, nothing to do with "it had [the Hatton, su- liability denied county the street occurred down Pub]" parties to accompany all employs guards to A guard against crimi- foreseeable to 1. The failure goes upon B such tours. protect of the them act or omission due to the nal conduct (Sec- danger- particularly may negligence. Restatement While in a be See a tour. actor onp) such e, guards illustration 3 abandon the 302B comment part § or Torts the slums the ous A Com- The (1965): and robbed. party. is attacked B negligent B." Company of con- toward makes a business to be pany "The A be found city. ducting through of the the slums tourists when, instances, by scaffolding struck both one bicyclist was pra, at when a by upon was obscured has a course of whose vision entered conduct de- a motorist in the road. growth signed a curve duty provide natural on to undertake the to a tall curve was county's to mow the The failure place Both safe to work. the failure to although the as misfeasance scaffolding characterized provide Perry, and the fail- portions of voluntarily mowed other county adequately inspect scaffolding in ure to county never Plan-Tec, roadway. negligent performance of a Since issue, curve at its to mow the gratuitously duty provide undertaken assumed to a the curve was failure to mow complete job safe site. The failure to do what a mere nonfeasance. reasonably prudent person would do after situation, ie., taking control of a after un- Conversely, if affirmative conduct act, dertaking duty a to is nonetheless mis- perform undertaking to an evidences feasance. service, negligence in the form gratuitous a reasonable to act when of an omission case, In this we cannot character is nonetheless character person would act provide adequate ize the failure to Pub's Professor Prosser misfeasance. ized as security disperse unruly or to or control an recognized fallacy in defin thereby has sup crowd as nonfeasance. evidence misfeasance between ing the distinction ports that the a reasonable inference Pub action as mere and nonfeasance between designed entered a course of conduct inaction: duty to undertake area whistle or to shut off "Failure to blow a which Ember was attacked even at the inaction, steam, is although in itself jury arrived. The must moment Ember operation of negligent as readily treated gra therefore determine whether the Pub misconduct; train, which is affirmative tuitously patrol adja assumed repair gas pipe is re omission to an scope cent areas and the of the as gas; negligent garded as distribution sumed. building supply heat for a and failure to - jury deter- question also remains mismanagement easily of a can become performed mination whether the Pub boiler." assumed, in gratuitous duty, to the extent Prosser, (footnotes supra, omit W. at manner.2 The fact-finder a reasonable ted). engaged has in affirmative If one whether, example, rea must determine evidencing undertaking pro conduct an dispersed have sonable conduct would work, place to the failure vide a safe the Pub's patrols increased crowd or measures, safety otherwise enforce sidewalks, entrance and on the "omission," nonetheless liabili will streets, parking areas. gratuitously assumed ty for the breach (failure supra, at 49-50 duty. Perry, Liability Premises Boatman, scaffolding); su provide accord Ind.App. at 375 N.E.2d at pra, said, it is obvious From what has been inspect adequately 1141. The failure argument that unpersuaded we are likewise misfeasance al equipment not Ember was liability was barred because increase the though inspection did not the initial confrontation an invitee and performance is at risk of harm. "Onee outside the subsequent assault occurred performer must act tempted, premises. While of the Pub's boundaries *8 prudent person." reasonably manner of a summary ground our reversal we of Plan-Tec, supra, at 1221. solely of the failure judgment on the basis assump- possible not, into account the example, to take as do for such these Cases protect persons gratuitous duty to tion of a failing to erect scaf- distinguish between principles premises, other outside the Pub's allowing the use of defective folding and legal duty of that party and the breach raises ence of a court nor either 2. Neither the trial judgment. by summary proximate Only question the exist- were addressed of cause. 772 premises liability could
of
Ember's N.W.2d
106,
the occurrence of an assault
negligence.
for
action
public alley
behind the tavern did not bar
liability.
the tavern's
Ap-
Minnesota
sidewalk,
abutting
The Pub used the
pellate Court found a reasonable inference
perhaps
adjacent
parking
street
forseeability
of the attack due to the
lots,
waiting
to contain its
customers.
It
aggressive
patrons
conduct of the
involved
appears
practice
the common
be
of tav-
preceding
departure
their
from the tavern.
public
erns and other
entertainment
facili-
allow,
similarly
promote,
ties to
indeed
Similarly, prospective patrons have been
adjoining property by patrons
use
over-
routinely characterized as invitees. E.g.
flowing inadequate
facilities
holi-
Prods.,
(1968),
Ellis v. Trowen Frozen
Inc.
days
special
Although
events.
arewe
(chil
Cal.Rptr.
264 Cal.
70
App.2d
487
not
Indiana
expressly
aware
cases
approaching
dren
ice cream truck were in
extending
duty beyond
an invitor's
lim-
vitees);
(1975),
Kesner v. Trenton
property,
its of the business
several other
(minors
W.Va.
773
limited to the area
Liability is not
8. Nuisance
leased,
adjoining
but extends to
owned or
generate
activities
If the owner's
dangerous condition
harbor a
areas which
crowds, liability
unruly
often based
or
special benefit
by
created
the owner's
public
theory. Normally, the
as
nuisance
Ellis,
(adjoining
supra
use of such areas.
ordinary
ordinary
risks of
sumes
cream
"premises" for ice
streets were
(D.D.C.
Lloyd
crowds. Schwartzman v.
truck).
1986),
(negligence
failing
in
SHIELDS,
concurs.
tract
upon
safety
involved and
various
stat
SULLIVAN, J.,
separate
with
dissents
regulations.
utes or
Harris v. Kettelhut
opinion.
Construction,
(1984)
App.,
Inc.
2d Dist.Ind.
J.,
SULLIVAN,
dissenting.
I read the the defendant here at may legitimate commercial business be time, an earlier to effect that certain high in being security for located a crime in held liable measures would be taken order renewal, impose liability, virtually gain liquor abso- to a permit area and to and addi- lute, vicinity representations tional injuries sustained of a similar nature good reason, made order to maintain the ofwill place I of business. For neighborhood, guarantees dissent. are not public large any specific or to indi- Neither the victim nor the assailants person's safety vidual of that or of freedom guests patrons. shown to be or Thus injury by from occasioned the criminal at- pages duty discussed at 768-769 persons tacks of third not associated with majority opinion is not involved. upon premises. the defendant or his affidavit, by Plaintiff did not or other- The retention off-duty police of an offi- wise, proffer evidence sufficient to demon- cer who have made an unrelated ar- point. strate a factual issue on this As the past rest undertaking not the of an genuine trial court stated: "There is no open-ended duty and unrestricted to indem- assailants were in issue fact ... nify public against all members of the crim- way (Ap- any connected with [the Publ". by strangers imal assault places and in all Brief, 6). p. pellant's of, vicinity premises. but not on the any imposing upon I fail to see basis for passing, though I would note in I do not duty defendant the to control the actions of determinative, deem it that at the time of strangers. Pursley Compa- v. Ford Motor attack, manager of the Pub was (1984) 247; ny App., 2d Dist.Ind. 462 N.E.2d area, patrolling himself though even (1984) Ind., also Martin v. see Shea person patrol additional hired to had N.E.2d 1092. yet duty. not arrived for Whether Ember intended to become a summation, my In it is today's belief that patron at some future moment does not expands premises liability beyond decision duty. yet create a He had not become a any interpretation existing reasonable guest patron or and was not even en route public or of policy. law digressed to the entrance. He had entry premises intended into the susceptible I find this case even less to a approached the lability assailants at the end of determination of than Welch the block. Inc., (1986) Dist., Crossing, Railroad 2d Ind.App., 488 N.E.2d in which we af respect gratuitous assumption With firmed a directed verdict in favor of a duty, a I do not consider the three cases Weick, patron returning tavern. a by majority, Perry cited v. Northern the tavern was attacked outside the tavern (1982) Company Indiana Public Service patron. another We held that there was Dist.Ind.App., Plan-Tec, 4th 483 N.E.2d anticipate spontaneous no attack. (1983) Wiggins Dist.Ind.App., Inc. v. 1st efforts, here, by the Pub to maintain Clyde 443 N.E.2d E. Williams & degree some of order and to maintain the Associates, (1978) Inc. v. Boatman 1st not, good neighbors my of the will does Dist., 176 Ind. 375 N.E.2d App. view, anticipate create a an attack persuasive. be All safety three involve non-patron by group non-pa requirements employees independent trons. contractors on construction sites. The na duty depends summary judgment. ture and extent of such a I would affirm the