Smith v. Purple Frog, Inc.

2019 IL App (3d) 180132

141 N.E.3d 786

435 Ill.Dec. 977

Jeffrey SMITH, Plaintiff-Appellant,

v.The PURPLE FROG, INC., d/b/a/ Pottsie's Place, Defendant-Appellee.

Appeal No. 3-18-0132

Appellate Court of Illinois, Third District.

Opinion filed October 16, 2019

Jennifer Bonesteel, of Stephen P. Kelly, Attorney at Law, LLC, of Peoria, for appellant.

Robert F. Hogan, of Nyhan, Bambrick, Kinzie & Lowry, P.C., of Chicago, for appellee.

JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.

¶ 1 The Plaintiff, Jeffrey Smith, sued the defendant, The Purple Frog, Inc., d/b/a/ Pottsie's Place (Pottsie's), seeking to recover for injuries he sustained when he came in contact with a wall heater on the defendant's premises. Smith alleged that Pottsie's was liable for negligence under a premises liability theory and also because it had negligently installed the wall heater in a location where its customers could come in contact with it. The trial court granted summary judgment in Pottsie's favor. This appeal followed.

¶ 2 FACTS

¶ 3 Pottsie's is a bar located in Pekin, Illinois. On December 2, 2014, Smith went to Pottsie's at approximately 11:30 p.m. Smith had been to Pottsie's approximately six times prior to that evening. Pottsie's has a beer garden that functions as an outdoor smoking area. Shortly before midnight, Smith went outside to the beer garden to smoke. He did not bring his coat. There was a wall-mounted gas heater inside the beer garden which was on at the time Smith went outside. A sign attached to the wall over the heater read, "Heater is hot. We are not responsible for your silly ass getting too close!! Thanks, Pottsie's". Smith voluntarily backed up toward the heater to keep warm. He was swaying back and forth trying to "loosen up" his hips. Eventually, he leaned back to scratch his shoulder on the wall/heater glass and his flannel shirt caught fire. Smith eventually removed his flannel shirt and t-shirt, both of which continued to burn after removal. Smith suffered injuries during the incident.

¶ 4 Notes written by an EMT who treated Smith indicate that Smith had consumed eight beers that evening. Although Smith does not recall making that statement to the EMT, he admits that he was intoxicated that evening.

¶ 5 Smith estimated that he had been in Pottsie's beer garden approximately 18 times prior to the December 2, 2014, incident. He acknowledged that he was aware of the warning sign placed above the heater and had seen it on each of the prior occasions that he was in Pottsie's beer garden. Although he had leaned on the heater once or twice before, he had never experienced any incident with the heater prior to December 2, 2014. However, Smith knew that the heater got hot based on his prior encounters with the heater. Smith swore that, at the time of the incident, the heater's glass was "cherry red hot" but there was no open flame emanating from the heater.

¶ 6 The owner-operators of Pottsie's had purchased the gas heater at issue and had an unidentified customer of theirs run the gas lines to the heater.¹ The manufacturer's manual that came with the heater stated that the heater must not be placed in a location where people could walk near it. However, the heater was installed in Pottsie's beer garden at torso height near some picnic tables. The path between the picnic tables and the heater was only wide enough for one person to pass through. There is no evidence that whoever installed the heater was given the manual that came with the heater.

¶ 7 Smith filed a complaint sounding in negligence. He alleged that Pottsie's was liable under premises liability principles because it did not adequately warn Smith of the hazard posed by the heater or otherwise protect him from such hazard. Smith also alleged that Pottsie's negligent installation of the heater in an area where patrons could come into physical contact with it proximately caused his injuries.

¶ 8 Pottsie's moved for summary judgment. The trial court held that: (1) the heater's manual did not create a duty of care; and (2) "Smith was fully aware of the notice and undertook his own actions voluntarily." Accordingly, the trial court granted Pottsie's motion and entered summary judgment in Pottsie's favor. This appeal followed.

¶ 9 ANALYSIS

¶ 10 "Summary judgment is appropriate if the pleadings, depositions, and admissions on file, * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Internal quotation marks omitted.) Morrissey v. Arlington Park Racecourse, LLC , 404 Ill. App. 3d 711, 724, 343 Ill.Dec. 636, 935 N.E.2d 644 (2010). In determining whether the moving party is entitled to summary judgment, the court must construe the pleadings and evidentiary material in the record strictly against the moving party. Id. To survive a motion for summary judgment, a plaintiff need not prove his case, but he must present a factual basis that would arguably entitle him to a judgment. Wade v. Wal-Mart Stores, Inc. , 2015 IL App (4th) 141067, ¶ 12, 396 Ill.Dec. 315, 39 N.E.3d 1141. We review a trial court's decision to grant or deny a motion for summary judgment de novo . Id. ; see also Bruns v. City of Centralia , 2014 IL 116998, ¶ 13, 386 Ill.Dec. 765, 21 N.E.3d 684.

¶ 11 In a negligence action, the plaintiff must plead and prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and injury proximately resulting from the breach. Bruns , 2014 IL 116998, ¶ 12, 386 Ill.Dec. 765, 21 N.E.3d 684. Whether a duty exists is a question of law for the court to decide. Id. ¶ 13 ; Henderson v. Lofts at Lake Arlington Towne Condominium Ass'n , 2018 IL App (1st) 162744, ¶ 38, 423 Ill.Dec. 196, 105 N.E.3d 1. In the absence of a showing from which the court could infer the existence of a duty, no recovery by the plaintiff is possible as a matter of law and summary judgment in favor of the defendant is proper. Bruns , 2014 IL 116998, ¶ 13, 386 Ill.Dec. 765, 21 N.E.3d 684 ; Henderson , 2018 IL App (1st) 162744, ¶ 38, 423 Ill.Dec. 196, 105 N.E.3d 1.

¶ 12 In determining whether a duty exists, we look to four factors: (1) foreseeability; (2) likelihood of injury; (3) magnitude of the burden on the defendant to guard against the injury; and (4) consequences of placing a burden on the defendant. LaFever v. Kemlite Co. , 185 Ill. 2d 380, 389, 235 Ill.Dec. 886, 706 N.E.2d 441 (1998). Where, as here, an injury is allegedly caused by a condition on a defendant's property, the first factor to be considered is foreseeability. Morrissey , 404 Ill. App. 3d at 725, 343 Ill.Dec. 636, 935 N.E.2d 644 ; see also LaFever , 185 Ill. 2d at 389, 235 Ill.Dec. 886, 706 N.E.2d 441. In doing so, we are guided by the analysis of section 343 of the Restatement (Second) of Torts and our supreme court's interpretation of that section. LaFever , 185 Ill. 2d at 389, 235 Ill.Dec. 886, 706 N.E.2d 441 ; see also Sollami v. Eaton, 201 Ill. 2d 1, 16-17, 265 Ill.Dec. 177, 772 N.E.2d 215 (2002). Section 343 subjects a landowner to liability if the owner: (1) knows or by the exercise of reasonable care would discover the condition; (2) should expect that the danger will not be discovered by the invitees; and (3) fails to exercise reasonable care to protect them against the danger. Restatement (Second) of Torts § 343 (1965).

¶ 13 However, even if the landowner is found to have a duty to keep his premises in a reasonably safe condition, he or she does not need to remove all dangers from his premises in order to avoid liability. Ward v. K Mart Corp. , 136 Ill. 2d 132, 141-42, 143 Ill.Dec. 288, 554 N.E.2d 223 (1990). If the landowner chooses to maintain a dangerous condition on his premises, an adequate warning to invitees suffices to render the condition "reasonably safe." Id. at 141, 143 Ill.Dec. 288, 554 N.E.2d 223.

¶ 14 In this case, the trial court properly granted summary judgment in favor of Pottsie's because Smith presented no evidence that could establish that Pottsie's owed him a duty to provide additional warnings regarding the heater or to take any additional steps to prevent him from being harmed by the heater. This is not a case where an owner or possessor of land failed to warn of a dangerous condition on the premises. Smith concedes that Pottsie's placed a warning above the heater and that he saw the warning on several prior occasions. Moreover, Smith has not challenged the adequacy of the warning (i.e. , he does not argue that the warning was insufficiently visible or clear to apprise him of the danger posed by the heater). Thus, even assuming arguendo that Pottsie's had a duty to warn its invitees of the hazard created by the heater, the undisputed facts establish that Pottsie's discharged that duty by providing an adequate warning. Id. (if the landowner chooses to maintain a dangerous condition on his premises, an adequate warning suffices to render the condition "reasonably safe").

¶ 15 Smith's argument that his injury falls within an exception to the rule shielding landowners from liability for injuries caused by "open and obvious" dangers is misplaced. The exceptions to the "open and obvious" rule establish a landowner's duty under certain circumstances to warn of certain risks or hazards (or to eliminate them) even though such risks or hazards are known or obvious to an invitee (see, e.g. , LaFever , 185 Ill. 2d at 392-98, 235 Ill.Dec. 886, 706 N.E.2d 441 ; Henderson , 2018 IL App (1st) 162744, ¶¶ 46-55, 423 Ill.Dec. 196, 105 N.E.3d 1 ); however, they do not establish an additional duty where, as here, the landowner has already provided a clear and legible warning next to the hazard at issue, a warning which the plaintiff concedes he saw and understood on several prior occasions. As the trial court correctly ruled, the undisputed evidence establishes Smith was "fully on notice" of the burn hazard presented by the heater but voluntarily decided to confront that hazard despite the...