Senkosky v. Bistro 412 LLC

512 P.3d 477

Emily SENKOSKY, Appellant,

v.BISTRO 412 LLC, Appellee.

No. 20190854-CA

Court of Appeals of Utah.

Filed May 12, 2022

Emily Adams and Freyja Johnson, Salt Lake City, Attorneys for Appellant

Matthew L. Lalli and Sarah A. Hafen, Salt Lake City, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.

Opinion

ORME, Judge:

¶1 Emily Senkosky was badly burned when her dress caught fire as she stood next to an open fire pit on Bistro 412 LLC's property. Senkosky sued Bistro 412, and the case proceeded to trial. The jury was instructed on two theories of negligence: ordinary negligence and premises liability. The trial court also adopted, over Senkosky's objections, a special verdict form proffered by Bistro 412. The jury returned a verdict in favor of Bistro 412, and Senkosky moved for a new trial on the ground that the special verdict form misled the jury by preventing it from considering her ordinary negligence claim. The court denied her motion.

¶2 On appeal, Senkosky argues that the court abused its discretion when it adopted Bistro 412's special verdict form and when it denied her motion for a new trial. Because both theories of liability were closely linked due to the manner in which they were presented to the jury, any alleged error in the jury instructions was harmless, and we affirm on that basis.

BACKGROUND¹

¶3 Bistro 412 was a restaurant in Park City. In early 2012, Bistro 412 installed an open fire pit on its outdoor deck. The owner of Bistro 412 explained that he installed the fire pit because similar fire pits had served as "a gathering point for people" throughout the city during the 2002 Olympics, and he hoped that a fire pit on Bistro 412's deck would draw people to the restaurant. Although the owner could not locate the exact model of fire pit installed throughout the city during the Olympics, he was able to find one that "was very similar, although smaller in diameter." Like the city's other fire pits, Bistro 412's fire pit was a bowl that held a natural gas generated fire and sat on a stone slab at knee level. Also like the city's other fire pits, it was made of iron or steel and did not have a barrier around it. And like the other fire pits around the city, Bistro 412's fire pit was unattended.

¶4 Prior to purchasing the fire pit, the owner brought pictures of the fire pit and its instructions to the Park City fire marshal. The fire marshal advised the owner to place two signs near the fire pit stating, "caution—hot open flame," but the fire marshal otherwise gave the "go ahead." The fire marshal did not require that a barrier be placed around the fire pit. The owner then had a licensed plumber install the fire pit and placed two warning signs on the front doors of the restaurant. Placement of the signs meant that only patrons with their backs to the fire pit could read them. Following the installation, the fire marshal inspected the fire pit and approved it, including the placement of the signs. Thereafter, the fire marshal inspected and approved the fire pit at least once a year.

¶5 One night in mid-March 2016, Senkosky, wearing a knee-length dress, visited Bistro 412 with friends. After Bistro 412's bar stopped serving drinks, Senkosky moved to the deck with several others. As she stood about one-to-two feet from the lit fire pit, which she considered to be "a safe distance," she looked down to see the hem of her dress on fire. She began patting at the flame and started to panic when she realized "it wasn't doing anything." As she quickly became "engulfed in flames," two nearby individuals put out the flames by tackling and laying on top of her.

¶6 Senkosky sustained burns to thirteen percent of her body, including third-degree burns,² primarily to her torso but also to her upper extremities. The burns caused significant scarring. She was hospitalized for over two weeks and endured approximately nine surgeries and twenty laser treatments between the time of her injury and trial.

¶7 Senkosky sued Bistro 412, bringing two causes of action: negligence and what she titled "Reckless—Punitive damages." As part of her negligence claim, she alleged that Bistro 412 "constructed, maintained and operated an open burning fire pit in violation of local permitting requirements and the Fire code" and that the fire pit was "in an unsafe location, without adequate warning and/or supervision." She claimed that Bistro 412 "knew or should have known that the open fire pit upon its premises presented an unreasonable risk of harm." The complaint further alleged that Bistro 412 "breached its duty of care including without limitation by such other acts of negligence as discovery may reveal."

¶8 The case proceeded to trial. In relevant part, Senkosky, the fire marshal, a fire expert, and two patrons of Bistro 412 testified as part of Senkosky's case-in-chief. While describing the incident, Senkosky testified, "I believed I was a safe distance away from the fire," at the time her dress caught fire. She later reiterated, "I don't believe I was standing too close to the fire," and she stated that she did not recall feeling heat radiate on her leg or any other part of her body as she stood next to the fire pit. She testified that, to her knowledge, the fire pit did not "malfunction in any way." Senkosky further testified that at the time of the incident, she worked at another establishment that also had a fire pit and that she had been trained to operate it. Her employer's fire pit was similar to that of Bistro 412's in that it was metal, round, and lower than waist height, but unlike the fire in Bistro 412's fire pit, the fire was "down within the pit."

¶9 The fire marshal testified that he issued a permit for the fire pit and later inspected it to confirm that the fire pit satisfied the applicable requirements. On cross-examination, the fire marshal stated that because the fire pit was "stationary," and not "portable," the permit did not require Bistro 412 to place a barrier around it or a screen on top of it. Instead, the permit instructed that "caution—hot flame" signs be placed near the fire pit, which the fire marshal confirmed had been done. He also confirmed that there was sufficient clearance for the fire pit on the deck and "[i]f the location had been improper in any way, [he] would not have permitted" its location. The fire marshal next explained that the manufacturer's instructions, under the heading "Selecting the Location," provided that combustible material cannot be kept within 14 inches of the fire pit's burner, but that it did not necessarily mean that people's clothing had to be kept 14 inches away from the burner. The fire marshal also stated that there was nothing "different or unusual" about Bistro 412's fire pit as compared to the "thousands" of other fire pits throughout Park City. The fire marshal was also unaware of any fire pits in the city that kept an attendant nearby.

¶10 Senkosky's fire expert testified that it was unsafe for any person to be on the deck with the fire pit without a barrier. He also testified, based on his classification of the fire pit as a "portable fueled open flame device," that the city's fire code required the fire pit to "be enclosed or installed in such a manner as to prevent the flame from contacting combustible material." The expert interpreted the 14-inch clearance provision in the manufacturer's instructions to mean that there must be "a clear space between the edge of the fire pit to where something possibly combustible would be," including clothing. The fire expert further pointed to the instructions’ directive: "Never leave an operating fire pit unattended or by someone not familiar with its operation or emergency shutoff locations." He concluded that the fire pit would have been safe if it had been placed in a location that allowed for enjoyment of the fire pit at a safe distance, had been attended, and had a 14-inch clearance around the fire pit.

¶11 The first of Bistro 412's patrons Senkosky called to testify noted that, on the night of the incident, no employee was near or watching the fire pit. He also stated that "in the 50 to 100 times" he visited Bistro 412, he never saw any warning signs near the fire pit. He testified that on the night in question, there were 25 to 30 people "shoulder to shoulder" on the deck, with Senkosky "standing just within arm's reach of me." He continued, "The next thing I knew, I could see flames coming up from about my knee level" and within seconds, Senkosky "was like the human torch." The patron then recounted that he pulled Senkosky to the ground and that he and another individual laid on top of her to extinguish the flames. He also stated that he did not believe that the flame radiated much heat because, on dozens of occasions, he had "seen kids run across the top of the fire pit with their shoes on after the bar's closed" without their shoes melting.

¶12 A second patron testified about an incident that occurred a few months prior to Senkosky's injury. He stated that he had "gotten too close" to Bistro 412's fire pit and the arm of his "sweater was singed and smoking a little bit," leaving a 3-inch hole.

¶13 The owner testified on Bistro 412's behalf. He testified that he would place the fire pit on the deck in the fall and remove it in the spring. When the fire pit was in operation, Bistro 412's employees would turn it on and off. The owner stated that he never considered the fire pit to be unsafe and had no reason to believe otherwise because "it was a decorative flame." He had never heard of any prior incident of a patron being burned or nearly burned by the fire pit, and he had never received a complaint about it being unsafe. He stated that he believed that patrons would take reasonable precautions to protect themselves from the flame and that he was unaware of any prior incident that would have caused him to question that...