SJ denial under review in parking lot assault case

Lu Ann B. Plonski sued Kroger Co. after she was assaulted in the parking lot of an Indianapolis Kroger store where she often did her grocery shopping. Kroger filed for summary judgment, arguing that based on affidavit evidence showing a lack of criminal activity in the area, it had no duty to protect Plonski from an attack by a party believed to not be a customer of the store. Kroger also argued the general safety of the area precluded a finding of proximate cause or breach of duty.

On appeal, the court upheld the trial court’s denial of summary judgment, finding that even Kroger’s own evidence showed a carjacking occurred in the parking lot a year before the assault. Kroger v. Plonski, 905 N.E.2d 448, 456 (Ind. Ct. App. 2009). The court noted in Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048 (Ind. 2003), another parking lot assault case, duty “was ‘sufficiently established merely by evidence that Bartolini, a customer of the Pub, was beaten in the Pub parking lot as he was leaving,’” Plonski, 905 N.E.2d at 454, quoting Bartolini, 799 N.E.2d at 454.

The Supreme Court granted transfer, vacating the appellate court’s decision.  Oral arguments were heard in mid October.