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Smithv.PurpleFrogInc.2019ILApp3d180132Ill.App.2019Negligence.pdf

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Smith v. Purple Frog, Inc., 2019 IL App (3d) 180132 (Ill. App., 2019)

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2019 IL App (3d) 180132

JEFFREY SMITH, Plaintiff-Appellant,

THE PURPLE FROG, INC., d/b/a/

POTTSIE'S PLACE, Defendant-

Appellee.

Appeal No. 3-18-0132

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

October 16, 2019

Appeal from the Circuit Court of the 3rd

Judicial Circuit, Tazewell County, Illinois.

Circuit No. 15-L-119

Honorable Michael Risinger, Judge,

Presiding.

JUSTICE HOLDRIDGE delivered the

judgment of the court, with opinion.

Presiding Justice Schmidt and Justice

O'Brien concurred in the judgment and

opinion.

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.

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¶ 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.

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Smith v. Purple Frog, Inc., 2019 IL App (3d) 180132 (Ill. App., 2019)

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¶ 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.

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Arlington Park Racecourse, LLC, 404 Ill.

App. 3d 711, 724 (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.

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.

¶ 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.

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. 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; Henderson, 2018 IL App (1st)

162744, ¶ 38.

¶ 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 (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; see also

LaFever, 185 Ill. 2d at 389. 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; see also Sollami v.

Eaton, 201 Ill. 2d 1, 16-17 (2002). Section 343

Smith v. Purple Frog, Inc., 2019 IL App (3d) 180132 (Ill. App., 2019)

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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 (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.

¶ 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

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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., LeFever, 185 Ill. 2d at

392-98; Henderson, 2018 IL App (1st)

162744, ¶¶ 46-55); 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

known risk. Accordingly, Smith's negligence

claim fails as a matter of law.

¶ 16 However, even if we were to ignore

Smith's admission that he had repeatedly

seen and understood the warning provided by

Pottsie's, we would still affirm the trial court's

judgment. Given the other undisputed

evidence provided by the parties, Smith

cannot establish that Pottsie's owed him a

duty to provide additional warnings or

otherwise eliminate any dangers posed by the

heater. Generally, " '[a] possessor of land is

not liable to his invitees for physical harm

caused to them by any activity or condition on

the land whose danger is known or obvious to

them.' " Wade, 2015 IL App (4th) 141067, ¶ 14

(quoting Restatement (Second) of Torts §

343A (1965)); Under Section 343A of the

Restatement, which the Illinois Supreme

Court has adopted (see, e.g., Deibert v. Bauer

Brothers Construction Co., Inc., 141 Ill. 2d

430, 434 (1990)), "obvious" means that "both

Smith v. Purple Frog, Inc., 2019 IL App (3d) 180132 (Ill. App., 2019)

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the condition and the risk are apparent to and

would be recognized by a reasonable man, in

the position of the visitor, exercising ordinary

perception, intelligence, and judgment."

Restatement (Second) of Torts § 343A cmt. b

(1965). However, the rule barring liability for

known or obvious hazards is subject to certain

exceptions. An owner or possessor of land

may be liable for harm caused by hazards that

are known or obvious to an invitee if the

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owner or possessor "should anticipate the

harm despite such knowledge or

obviousness." Sollami, 201 Ill. 2d at 15

(quoting Restatement (Second) of Torts §

343A(1) (1965)). The possessor of the

premises should reasonably anticipate such

harm when he or she: (1) "has reason to

expect that the invitee's attention may be

distracted, so that he will not discover what is

obvious, or will forget what he has discovered,

or fail to protect himself against it"; or (2)

"has reason to expect that the invitee will

proceed to encounter the known or obvious

danger because to a reasonable man in his

position the advantages of doing so would

outweigh the apparent risk." LaFever, 185 Ill.

2d at 391 (quoting Restatement (Second) of

Torts § 343A cmt. f (1965)). Courts refer to

these two exceptions as the "distraction

exception" and the "deliberate encounter

exception," respectively. Sollami, 201 Ill. 2d

at 15; LaFever, 185 Ill. 2d at 391.

¶ 17 Smith concedes that the danger

presented by the wall heater was open and

obvious. However, he argues that one or both

of the recognized exceptions to the open and

obvious rule should apply here. The

undisputed evidence forecloses this

argument. The "deliberate encounter"

exception usually applies "where the plaintiff

has an economic reason for choosing to

encounter the danger, such as a job

requirement." Kleiber v. Freeport Farm &

Fleet, Inc., 406 Ill. App. 3d 249, 259-60

(2010).2 At a minimum, to avail himself of the

"deliberate encounter" exception, the plaintiff

must demonstrate some compelling reason

that forced him to confront the danger and

the lack of a viable alternative. See, e.g.,

Simmons v. American Drug Stores, Inc., 329

Ill. App. 3d 38, 40-41 (2002) (plaintiff had to

encounter the danger to leave the store area

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and to get to his car). No such reason exists in

the present case. Smith had no business or

economic reason for backing into the heater.

Rather, he stood near the heater to stay warm

while he was smoking in the beer garden, and

he leaned into the heater to scratch his

shoulder on it. He presented no evidence

suggesting that he had no other viable option

available to him at the time. In fact, the

evidence is to the contrary. Smith did not take

his coat with him when he went outside to

smoke in the beer garden. 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 wall heater.

¶ 18 Nor can Smith establish that the

"distraction exception" to the known and

obvious risk rule applies here. As an initial

matter, the distraction exception applies only

where evidence exists from which a court can

infer that the plaintiff was, in fact, distracted

at the time the injury occurred. Bruns, 2014

IL 116998, ¶ 22. Moreover, the distraction at

issue may not be entirely self-created (such as

the plaintiff's mere failure to pay attention).

Id. ¶¶ 31-34. For the distraction exception to

apply, the plaintiff's attention to the known or

obvious danger must be diverted by

something outside of his own mind, and the

fact that the plaintiff would be distracted

must be reasonably foreseeable to the

defendant. See id. ¶¶ 28-32; see also Ward,

136 Ill. 2d at 153-54 (holding that the

distraction exception applied where

defendant store owner could have reasonably

Smith v. Purple Frog, Inc., 2019 IL App (3d) 180132 (Ill. App., 2019)

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anticipated that a customer would become

distracted when carrying large, bulky items

from the store and would walk into a concrete

post that was located immediately outside of

the only door leading out of the store which

was not visible from inside the store).

¶ 19 Smith has presented no evidence of any

such "distraction" in this case. He does not

claim that his attention was diverted from the

heater by any other event, circumstance, or

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condition of the premises. His argument that

he was foreseeably "distracted" at the time of

his injury rests entirely upon his claim that he

was intoxicated at the time. He contends that,

because Pottsie's served intoxicating liquors,

it was reasonably foreseeable that one of its

customers would fail to appreciate the open

and obvious hazard presented by the wall

heater or would forget about the hazard

despite having read and understood the

posted warning on prior occasions. We

disagree. As an initial matter, to whatever

extent that voluntary intoxication may be

considered a "distraction" from known and

obvious hazards, it is a distraction that is

created by the plaintiff and internal to his

own state of mind. As such, it is not the type

of external, foreseeably distracting event or

condition to which the distraction exception

applies. Bruns, 2014 IL 116998, ¶ 31 ("A

plaintiff should not be allowed to recover for

self-created distractions that a defendant

could never reasonably foresee." (internal

quotation marks omitted)); see also Estate of

Ruppel v. Hyeon Jin, Inc., 272 Ill. App. 3d

527, 530 (1995) (noting that it was "doubtful"

that a voluntarily intoxicated hotel guest who

fell down the hotel's stairs "falls within the

class of plaintiffs who are generally exercising

reasonable care for their own safety or may be

said to have been reasonably distracted or

reasonably forgetful," as required for an

exception to the open an obvious rule to

apply).

¶ 20 In addition, Smith presented no evidence

that any owner, employee, or other agent of

Pottsie's knew that he was intoxicated at the

time, much less that he was so intoxicated

that he was foreseeably likely to deliberately

back into a hot wall heater (ignoring the

posted warning) in order to scratch an itch.

Absent such evidence, Smith's injury cannot

be deemed to be reasonably foreseeable as a

matter of law, and his alleged intoxication

cannot be relevant to the duty analysis in this

case. See, e.g., Duffy v. Togher, 382 Ill. App.

3d 1, 12-13 (2008) (ruling that a plaintiff's

alleged intoxication "is not relevant to the

determination of the duty owed by

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defendant" in a premises liability case, and it

"does not affect this court's analysis of

whether the danger was open and obvious[,]

*** [which] is evaluated on an objective

standard"); Estate of Ruppel, 272 Ill. App. 3d

at 531 (absent some signs of impaired

physical mobility or other observable

incapacity to avoid an open and obvious

hazard, an intoxicated plaintiff's being

injured by such a hazard cannot be deemed

reasonably foreseeable by a defendant

business owner, even if the defendant knows

that the plaintiff is intoxicated). To hold

otherwise would be to impose an unduly

onerous burden on such defendants by

requiring them to "provide for the total care

and safety of intoxicated persons on its

premises." Id.

¶ 21 Because no exception to the open and

obvious rule applies here, Smith cannot

establish that Pottsie's owed him a duty to

provide any additional warnings or

safeguards to protect him from the known

and obvious danger presented by the wall

heater. As noted above, in determining

whether a duty exists, we look to four factors:

(1) foreseeability of injury; (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

Smith v. Purple Frog, Inc., 2019 IL App (3d) 180132 (Ill. App., 2019)

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defendant. LaFever, 185 Ill. 2d at 389. The

danger presented by the heater was open and

obvious, which diminishes both the

foreseeability and the likelihood of the injury.

Bruns, 2014 IL 116998, ¶ 19 (where the

hazardous condition at issue is known or

obvious, "the foreseeability of harm and the

likelihood of injury will be slight, thus

weighing against the imposition of a duty");