from the Circuit Court No. 15-L-119 of the 3rd Judicial
Circuit, Tazewell County, Illinois. 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.
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.
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. 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
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
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
(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 ...