FOR PUBLICATION


ATTORNEYS FOR APPELLANT:    ATTORNEY FOR APPELLEES:

SWARAY E. CONTEH     T.R. FOX
The Law Office of Swaray Conteh, LLC    Indianapolis, Indiana
Indianapolis, Indiana

     IN THE COURT OF APPEALS OF INDIANA

EAGLEDALE ENTERPRISES, LLC    )

d/b/a CLUB MECCA,                )
                                 )
    Appellant-Defendants         )    
                                 )
vs.                              )    No. 49A04-0401-CV-45
                                 )
DANIELLE COX and MARTINE         )
SPENCER,                         )
                                 )
Appellee-Plaintiffs.             )

    APPEAL FROM THE MARION SUPERIOR COURT
    The Honorable Cale J. Bradford, Judge
    Cause No. 49D01-0111-CP-01822

    OPINION - FOR PUBLICATION

ROBB, Judge

BAKER, Judge, dissenting.
    I respectfully dissent. In my view, the trial court should have granted the Club’s motion to dismiss Spencer’s complaint for lack of subject matter jurisdiction in light of the Exclusivity Clause of the Indiana Worker’s Compensation Act (the Act). As set forth in Indiana Code section 22-3-2-6:
The rights and remedies granted to an employee subject to the Worker’s Compensation Act on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, the employee’s personal representatives, dependents, or next of kin, at common law or otherwise, on account of such injury or death.
In construing the type of coverage that is compensable under the Act, this court has acknowledged that a personal squabble with a third person that culminates in an assault is generally not covered. Peavler v. Mitchell & Scott Machine Co., Inc., 638 N.E.2d 879, 881 (Ind. Ct. App. 1994). By the same token, if the assault is one that might be reasonably anticipated because of the general character of the work, or other particular duties imposed on the worker, such injuries or death may be found to arise out of the employment. Id.
In this case, I embrace the majority’s view that the record establishes that Spencer’s injuries occurred while she was “within her period of employment and at her employer’s nightclub.” See slip op. at 5. However, it is undisputed that Spencer voluntarily joined in the brawl that had originally ignited between Cox and the other female patrons. Hence, it is my view that this assault—and the injuries that Spencer sustained—was of the type that could have been anticipated arising from Spencer’s employment. Further, while the majority posits that “the Club did not mention anything to her about coverage under its worker’s compensation insurance,” slip op. at 5, Spencer admitted that she knew she had Worker’s Compensation coverage through Eagledale and the Club. Appellant’s App. p. 23. Spencer continued to work at the Club after the incident, and she never submitted any medical bills to her employer that it refused to pay. It is apparent to me that, under these circumstances, Spencer simply failed to avail herself of the exclusive remedy under the Act. As a result, the Club’s motion to dismiss Spencer’s claim for lack of subject matter jurisdiction should have been granted.
    I also dissent because the evidence in the record does not establish that the Club breached its duty of care to either plaintiff, and there is no showing that any purported breach was the proximate cause of their injuries. To be sure, the determination of whether a landowner owed an invitee a duty to take reasonable care to protect the invitee against a third party criminal attack requires consideration of the totality of the circumstances to determine whether the criminal act was reasonably foreseeable. Paragon Family Restaurant v. Bartolini, 799 N.E.2d 1048, 1052-53 (Ind. 2003). This analysis involves an examination of “all of the circumstances surrounding an event, including the nature, condition, and location of the land, as well as prior similar incidents.” Id. It has been established that a business owner is not the insurer of the safety of their patrons. Gunter v. Village Pub, 606 N.E.2d 1310, 1312 (Ind. Ct. App. 1993). Additionally, there is no duty on the part of a business owner to protect its patrons from the criminal acts of third persons unless the particular facts make it reasonably foreseeable that the criminal act will occur. Fast Eddie’s v. Hall, 688 N.E.2d 1270, 1272-73 (Ind. Ct. App. 1997).
I would also note that the proximate cause of an injury is not merely the direct or close cause; rather, it is the negligent act that resulted in an injury that was the act’s natural and probable consequence in light of the circumstances. City of Indianapolis Hous. Auth. v. Pippin, 726 N.E.2d 341, 346 (Ind. Ct. App. 2000). Moreover, when a willful, malicious and criminal act of a third party intervenes between an alleged act of negligence and the occurrence of an injury that could not reasonably have been foreseen by the allegedly negligent party, the causal chain between the negligence and the injury is broken. See Ellis v. Luxbury Hotels, Inc., 666 N.E.2d 1262, 1266 (Ind. Ct. App. 1996). Put another way, “liability may not be imposed on an original negligent actor who sets in motion a chain of events if the ultimate injury was not reasonably foreseeable as the natural and probable consequence of the act or omission.” Paragon, 799 N.E.2d at 1054.
     In this case, the majority observes that the patrons who attacked Spencer and Cox were wearing “tennis shoes, hats, jeans, and sweat suits,” in violation of the Club’s dress code. Slip op. at 8. To me, even assuming that patrons were granted entry to the Club in violation of the facility’s dress code, there is no logical nexus between the admission of patrons into the premises dressed in that fashion and a breach of the Club’s duty to provide the plaintiffs with adequate security.
Additionally, the manager of the Club testified that approximately 700-800 patrons entered the Club on the night of the incident, and eighteen to twenty-two security guards were working on that particular evening. See footnote There was simply no showing made by the plaintiffs that this number of security personnel was insufficient to protect the safety of those who entered the premises. Neither Cox nor Spencer presented evidence establishing that the Club had been aware of any prior actions on the part of the female patrons who had attacked Cox. In other words, Cox and Spencer failed to show that the Club was aware of the assailants’ propensities to commit the criminal act that was involved here. Thus, I cannot agree that the plaintiffs proved by a preponderance of the evidence that the Club breached any duty of care that was owed to them.     
Taking yet another step, I would also note that nothing in the record suggests that an alleged breach of duty on the part of the Club was the proximate cause of the plaintiffs’ injuries. In essence, Cox and Spencer are suggesting that the assault was foreseeable based on the notion that a physical altercation could occur simply because a patron is permitted to enter the Club in violation of the dress code. To me, such an assertion is unfounded, and an insurmountable burden would be imposed on the business owner if such were the case.
That said, I must conclude—for all these reasons—that the evidence was insufficient to establish a causal relationship between the Club’s alleged breach of duty and the injuries that were sustained in the altercation. Hence, I vote to reverse the judgment of the trial court.