The Third District Appellate Court, in its written order issued on Oct. 16, 2019, affirmed a Tazewell County judge’s decision to grant summary judgment in favor of Pottsie’s Place. The appeals court ruled that the plaintiff, Jeffrey Smith, did not present any evidence showing the bar had a duty to take additional steps to prevent customers from being injured by a heater.
The premises liability case was brought against the bar, Pottsie’s, alleging that the bar chose not to take action to protect its patrons from potential injury when its employees placed a written warning above an outdoor 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 the law,” according to the opinion written by Justice William E. Holdridge.
Smith was a patron at Pottsie’s in Pekin, Ill., on 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.
A sign was attached to the wall above the heater that 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. He filed a lawsuit against the bar, alleging that Pottsie’s did not properly warn him of the potential dangers of the heater. Smith also contended that Pottsie’s should not have placed the heater in an area where customers could come into physical contact with it.
The bar moved for summary judgment, which the Tazewell County, Ill., judge granted. Smith appealed the decision.
The appellate panel noted in its decision that Smith 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 argument.
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, plaintiffs must prove some compelling reason as to why they put themselves in that situation and why there is no alternative.
The appeals 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 reasonable (much less compelling) reason to back into a hot heater.”
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. The decision of the Third District Appellate Court was unanimous.
Accordingly, the summary judgment motion was affirmed.
Jeffrey Smith v. The Purple Frog Inc., d/b/a Pottsie’s Place, 2019 IL App (3d) 180132.
Kreisman Law Offices has been handling premises liability lawsuits, wrongful death cases, traumatic brain injury cases and nursing home negligence lawsuits for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Berwyn, Des Plaines, Glenview, Palos Park, Schaumburg, Tinley Park, Downers Grove, Bolingbrook, Elgin, Geneva, Waukegan, Joliet, Chicago (Little Italy, South Loop, Lakeview, West Rogers Park, Bronzeville, Bridgeport, Canaryville, McKinley Park, Bucktown, Logan Square, Wicker Park), Vernon Hills, Wheeling, Buffalo Grove, Northfield and Glenview, Ill.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.
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