Bar patrons often become intoxicated. Unfortunately, this can lead to poor decision making. Inebriated customers sometimes engage in dangerous behavior due to alcohol impairment, and they might even ignore clear signage that discourages particular behaviors. In the case of Smith v. The Purple Frog Inc., the Illinois Appellate Court considers whether business owners are responsible when customers are injured at their establishment under these circumstances.
The Facts
Mr. Smith arrived at Pottsie’s Place, a bar in Perkins, Illinois, at 11:30 p.m. on December 2, 2014. Half an hour later, he went outdoors to smoke in the bar’s beer garden. Although it was cold, he did not wear his coat outside. Within the beer garden was a wall-mounted heater installed at torso-height near a group of picnic tables. There was a sign on the wall above the heater that read, “Heater is hot. We are not responsible for your silly ass getting too close!! Thanks, Pottsie’s.”
While Mr. Smith was in the beer garden, which he had visited approximately 18 times during prior visits to Pottsie’s, Mr. Smith backed toward the heater to keep warm. As he stood near the heater, he swayed back and forth to “loosen his hips.” After some time, he leaned back to scratch his itchy shoulder on the wall/heater glass. Although he had leaned on the heater one or two times prior without incident, his flannel shirt caught fire that night.
While he was being treated by an EMT, Mr. Smith said he’d consumed eight beers that night. Although he didn’t recall making that statement, he acknowledged that he was drunk at the time of the accident. Additionally, he admitted to being aware of the warning sign above the heater and said he knew that the heater got quite hot based on his previous experiences. Mr. Smith also claimed that while he did not see open flames coming from the heater at the time of his injury, the glass was “cherry red hot.”
Pottsie’s had purchased the gas heater at issue, and one of the bar’s customers ran the gas lines to the heater. The manufacturer’s manual stated that the heater must not be placed in a location where people could walk near it. However, there is no evidence that whoever installed the heater was given the manual. Mr. Smith filed a lawsuit against the bar, Purple Frog, Inc. (doing business as Pottsie’s Place), alleging negligence (carelessness). Specifically, he claimed that Pottsie’s was responsible for his injuries because it didn’t adequately warn him of the hazard posed by the heater and didn’t protect him from becoming injured by it. Additionally, he claimed that Pottsie’s had negligently installed the heater because it was located in an area where patrons could come into contact with it.
The Law of Open and Obvious Dangers, the Distraction Exception, and the Deliberate Encounter Exception
In Illinois, property owners are responsible for their guests’ injuries only in situations when they know (or should know) of dangerous conditions that are likely to cause harm, when they have reason to believe guests will not recognize the danger, and when they fail to exercise reasonable care to protect their guests. However, they are not required to remove all dangers from their land. If landowners choose to maintain a hazardous condition on the premises, they are required to provide invitees with an adequate warning of the hazard. As long as they have done so, they cannot be held liable for injuries. Furthermore, injured parties can only recover damages from property owners in a negligence case if they prove the owner had a duty to protect them from harm and their injuries resulted from the owner’s failure to uphold that duty.
Whether property owners have a duty to protect their guests depends on four factors: the reasonable foreseeability of the injury, the likelihood of the injury, the extent to which preventing the injury is burdensome, and the consequences of imposing that burden on a property owner. However, property owners have no duty to protect against injury when a potentially dangerous condition is “open and obvious”—in other words, when the average person would recognize a situation as dangerous. According to Illinois law, property owners are not liable for injuries that occur when a person engages in activity where a known and obvious danger exists or when people have been clearly warned of dangerous conditions. That said, there are two exceptions to the “open and obvious” rule. The first is the “distraction exception.” This exception applies in situations when external factors cause guests’ attention to waver in a way that stops them from discovering an otherwise open and obvious hazard. The exception also applies when these external factors make guests forget about a hazard or prevent them from protecting themselves against a hazard. The second exception is the “deliberate encounter” exception. This exception applies when the risks of ignoring an obviously dangerous situation are outweighed by the rewards of doing so. (The reward is typically financial, but not always.) If either of these exceptions applies, landowners are responsible for protecting against their guests’ injuries and they can be held responsible if they fail to do so.
The Decision
In response to the lawsuit, Pottsie’s entered a motion for summary judgment, arguing that the evidence was insufficient for a jury to find in Mr. Smith’s favor, even if interpreted in the light most favorable to him. The trial court granted the motion and dismissed the case. The court noted that the mere existence of a heater manual wasn’t enough to impose a duty on Pottsie’s to protect Mr. Smith from injury. Furthermore, the court said, Mr. Smith had voluntarily leaned against the heater despite his knowledge of the posted warning against doing so.
Mr. Smith appealed this decision to the Illinois Appellate Court, maintaining his position that the manual imposed a duty on Pottsie’s to protect patrons from injury. However, the appellate court disagreed. Even if the water heater had been improperly installed in a place where it could be touched (in violation of the manual’s instructions), the clear written warning freed the bar from liability. The court believed this warning was sufficient to eliminate the foreseeable danger that a customer would deliberately touch the heater.
Further, even if Pottsie’s hadn’t posted an adequate warning, Mr. Smith admitted that the hazard was open and obvious. However, he claimed that both of the exceptions apply in this case. First, he claimed the deliberate encounter exception applied and thus created a duty for Pottsie’s to protect him. The court disagreed, saying there was no compelling reason for Mr. Smith to take the risk of touching the heater. There was no financial incentive, and Mr. Smith had alternate options for keeping warm—such as wearing his coat. Additionally, he could have scratched his itchy shoulder using some method other than rubbing it against the heater. The court felt the dangers of coming in contact with the heater outweighed any potential rewards of doing so.
Mr. Smith also argued that Pottsie’s had a duty to protect him from being injured by the heater due to the distraction exception. He said that because Pottsie’s serves alcohol, his intoxication was a “foreseeable distraction” that prevented him from recognizing the hazards associated with the wall heater. However, the appellate court disagreed with this rationale because drinking is a voluntary action and is “internal to [the drinker’s] own state of mind” rather than being an external distraction. Furthermore, no one associated with Pottsie’s knew Mr. Smith was intoxicated enough that he was likely to engage in dangerous behavior; therefore, they couldn’t have protected him. Additionally, Mr. Smith presented no evidence to suggest that he was distracted by an outside stimulus as he approached and then leaned against the heater. The court also noted that holding Pottsie’s responsible for its customers’ actions while intoxicated would impose “an unduly onerous burden…by requiring plaintiffs to ‘provide total care and safety of intoxicated persons on its premises.’”
Because the manual itself did not impose a duty on Pottsie’s, because neither exception to the open and obvious rule applies, and because Pottsie’s took reasonable care to protect its customers by posting a clear and visible warning above the heater, the court determined the bar was not responsible for Mr. Smith’s injuries.
Conclusion
Liquor can impair judgment and motivate people to behave in ways they wouldn’t behave while sober. However, this does not impose added liability on bar owners or operators to protect their patrons from injury. Like any other property owner, bar owners are legally able to maintain dangerous conditions on their property as long as they provide patrons with adequate warning of such conditions. Additionally, like all property owners, tavern owners have no obligation to protect patrons from hazards that are open and obvious in situations absent of external distractions and/or rewards that may outweigh the potential risks.