Panel OKs Wiener’s Circle injury suit

A woman’s injury lawsuit against the infamously crass Wiener’s Circle was revived by a state appeals panel on Wednesday.

The 1st District Appellate Court found the Lincoln Park restaurant at 2622 N. Clark St. has a duty to protect or warn customers they could be injured or harmed on the premises even though the shop is well-known for rowdy behavior between workers and customers.

Whether the restaurant’s conduct was the proximate cause of plaintiff Leah Libolt’s injuries should be left to a jury, the justices determined, making summary judgment improper.

Libolt broke her left elbow and wrist after an unidentified man, arguing with Wiener’s Circle employees knocked her down.

The 1st District’s 19-page ruling reverses summary judgment granted by Cook County Circuit Judge Kathy M. Flanagan in December 2014.

“[T]he record is clear that the incident occurred in a small, busy restaurant during a time of night in which the majority of patrons are intoxicated,” Justice James Fitzgerald Smith wrote. “It is also clear that the Wiener Circle staff makes a practice of, and is in fact encourage to, yell at customers.”

Libolt admitted she was “tipsy” when she went to the Wiener’s Circle for the first time on Oct. 22, 2011.

When she and her friends got to the cramped restaurant, they spotted an unidentified man who appeared to be taking the “good-natured verbal sparring between staff and customers” too far. This man also continually left and entered the restaurant.

Libolt and her friends testified they saw many Wiener’s Circle employees and patrons tell the man to leave. At one point, Wiener’s Circle staff threatened the man with a weapon; Libolt said it was a large wooden spoon, while another friend said it was pepper spray.

One of Libolt’s friends, Robert Lady, testified he pushed the aggressive patron away while at the counter.

This caused the man to collide with Libolt, who began to fall to the ground. She broke her fall with her left arm and felt pain immediately.

She exited the restaurant after she fell. She said none of the Wiener’s Circle employees came out to check on her, nor was she aware of anyone calling the police. Libolt left to go to the hospital.

As a result of the fall, Libolt broke both her wrist and her elbow. The panel said she would undergo two orthopedic surgeries and four months of physical therapy; she had to miss work as well.

According to Libolt’s attorney, Leonard S. Becker of the Law Offices of Leonard S. Becker, she has suffered permanent damage to her dominant arm. Her medical bills totaled more than $153,000, and she is seeking damages “well into the six figures,” Becker said.

“We’re seeking damages against Wiener Circle — at a time when staff encourages hooliganism amongst its customers,” Becker said.

A Wiener’s Circle employee, Erika Howard, testified that the restaurant does not have a security guard or a bouncer. Howard said they serve drunk customers late at night.

Additionally, Howard claimed that while the staff and the customers trade insults with each other, it’s never taken personally and “the wait staff does not use curse words during interactions with customers.”

The panel noted, however, that the record included an episode of Showtime’s “This American Life” TV series that focused on the Wiener’s Circle late at night.

“Much of the yelling is not good-natured, but, rather, includes racial and sexual insults as well as vulgarity,” Smith wrote. “The episode includes an interview with owners Mr. Gold and Mr. Nemerow, who explain that customers come to the Wiener Circle specifically for the back and forth between staff and clientele.”

Libolt sued the Wiener’s Circle for negligence in October 2013, alleging the restaurant’s staff did nothing to stop the unidentified man from running into her and for essentially providing inadequate security.

On appeal, Libolt argued the Wiener’s Circle had a duty to protect customers from the hostile environment it has created, and whether this environment led to her injuries is an issue of proximate cause that should be decided by a jury.

The panel noted that in order for Libolt’s negligence suit to survive summary judgment she had to show the restaurant had a duty to her and that they breached it, and that the breach led to her injuries.

As a business, Wiener’s Circle had a duty to protect or aid customers or “invitees” like Libolt from harm, the panel said.

But the justices said the Wiener’s Circle has a “heightened duty” to customers like Libolt. The panel cited a 2006 Illinois Supreme Court case that detailed the four factors a court should use to determine the duty of care between two parties.

First, Libolt’s injuries were reasonably foreseeable and likely given the restaurant’s “schtick” as a hostile, vulgar place, the panel found.

Additionally, the panel noted there are no signs or guards posted warning against injuries, nor are the staff trained to not “antagonize customers beyond a certain point.” Smith described these as being minimal burdens with minimal consequences.

“To be clear, we do not hold that all restaurants have a heightened duty to patrons,” Smith wrote. “However, where a business invitor such as Wiener Circle here intentionally creates and knowingly maintains a volatile environment in which the likelihood of injury to its invitees is unreasonably high, it has a duty to protect its invitees or to warn them of the dangers.”

The panel also found the two parties disagreed over the facts surrounding the proximate cause of Libolt’s injuries.

The restaurant contended Libolt’s arguments are speculation because there are unanswered questions surrounding the identity of the man who collided with her, what he was thinking and what he was doing at the time.

“Whether the Wiener Circle staff threatened the man with a grill brush as Robert Lady testified, or with a large spoon as plaintiff testified, or whether the staff brandished a can of pepper spray in a small, enclosed, busy restaurant as Andrew Easton testified, is a disputed fact,” Smith wrote.

The Wiener’s Circle was represented by Michael B. Kilgallon of Kilgallon Law Offices. He did not return a request for comment.

Justices Terrence J. Lavin and Aurelia Pucinski concurred with the opinion.

The case is Leah Libolt v. Wiener Circle Inc., 2016 IL App (1st) 150118.