A premises liability case against a bar was properly rejected, an appellate court panel has ruled, because the bar took action to protect its patrons from potential injury when its employees placed a written warning above an outdoor heater.
The 3rd District Appellate Court in its written order issued Oct. 16 affirmed a Tazewell County judge’s decision to grant summary judgment in favor of Pottsie’s Place, finding plaintiff Jeffrey Smith didn’t present any evidence showing the bar had a duty to take additional steps to prevent customers from being injured by the heater.
“Requiring Pottsie’s to take further steps in addition to the clear and prominent warning it provided would essentially render Pottsie’s an insurer of its invitees’ safety, which would be unduly burdensome and contrary to law,” Justice William E. Holdridge wrote.
Smith was a patron at Pottsie’s in Pekin in the evening of Dec. 2, 2014, when he went out to the beer garden to smoke. Not wearing a coat, Smith backed up toward a wall-mounted gas heater that was part of the beer garden, according to court documents.
A sign attached to the wall above the heater read, “‘Heater is hot. We are not responsible for your silly ass getting too close!! Thanks, Pottsie’s.’”
Smith moved closer to the heater, leaning back to scratch his shoulder on the glass when his flannel shirt caught on fire. He eventually removed his flannel shirt and T-shirt, which were both burned. As a result, Smith was injured from the incident, court records stated.
He filed a lawsuit against the bar, alleging Pottsie’s did not properly warn him of the potential dangers of the heater. He also contended the establishment should not have placed the heater in an area where customers could come in physical contact with it.
The bar moved for summary judgment, which Tazewell County Judge Michael D. Risinger granted. Smith appealed the decision.
The appellate panel noted in its decision that Smith conceded he saw the warning Pottsie’s placed above the heater on the several occasions he had been to the bar.
Smith argued his injury fell within an exception to the rule shielding landowners from liability for injuries caused by “open and obvious” dangers, but the panel rejected that contention.
One of the exceptions to the open and obvious rule is the “deliberate encounter” exception which usually applies when there is an economic reason for putting oneself in danger, such as a job requirement. At a minimum, the plaintiff must prove some compelling reason as to why they put themselves in that situation and why there was no alternative.
The appellate panel determined there was no such reason in this case. They also rejected Smith’s argument that he had no other option at the time, noting he chose not to bring his coat with him when he went outside to smoke.
“If he wanted to stay warm outside, he could have simply worn his coat instead of confronting a known burn hazard. Moreover, it goes without saying that the need to scratch an itch is not a reasonable (much less compelling) reason to back into a hot water heater,” Holdridge wrote.
The panel also rejected Smith’s argument as to his intoxication at the time of the incident, finding he presented no evidence that any employee at the time knew he was intoxicated enough to deliberately back into a heater, ignoring the posted sign.
Presiding Justice Daniel L. Schmidt and Justice Mary K. O’Brien concurred in the judgment and opinion.
Smith was represented by Jennifer Bonesteel of Stephen Kelly Law in Peoria.
She declined to comment on the decision.
The Purple Frog was represented by Robert F. Hogan of Nyhan, Bambrick, Kinzie & Lowry P.C.
He did not return requests for comment.
The case is Jeffrey Smith v. The Purple Frog Inc., d/b/a Pottsie’s Place, 2019 IL App (3d) 180132.