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Smith v. Purple Frog, Inc.

Court of Appeals of Illinois, Third District

October 16, 2019

JEFFREY SMITH, Plaintiff-Appellant,
THE PURPLE FROG, INC., d/b/a/ POTTSIE'S PLACE, Defendant-Appellee.

          Appeal 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.

         ¶ 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 (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, ΒΆ 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 ...

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