By now, most of us have seen a funny warning sign or two, either in person or perhaps as a meme on social media. While these warnings may give us a quick laugh, can they also be useful in shielding against liability for bodily injury claims? The Third District of the Illinois Appellate Court thinks so, as set forth in its recent decision in Smith v. The Purple Frog, Inc., 2019 IL App (3d) 180132.
In Smith, plaintiff sued a bar for negligence after backing into a heater located in the bar’s outdoor beer garden and sustaining injury. Plaintiff had gone out to the beer garden to smoke. The heater was mounted on a wall and was on at the time. Above the heater was a sign that read, “Heater is hot. We are not responsible for your silly ass getting too close!! Thanks, Pottsies.”
Plaintiff, who did not have on a coat, moved toward the heater to keep warm. He eventually leaned back near the wall/heater to scratch his shoulder, at which time his flannel shirt caught fire and he sustained injury.
Discovery revealed that plaintiff had been a patron of the bar on 18 prior occasions. He testified that each time he was there, he was aware of the heater and the warning sign. On one or two prior occasions, he had even leaned up against the heater but never encountered a problem. On the night in question, he observed the heater’s glass to be “cherry red hot,” but there was no visible flame. Plaintiff admitted that he was intoxicated at the time.
Discovery also revealed that the heater’s manual prohibited installation in a location where people could walk near it. At the time of plaintiff’s injury, the heater was located at torso height behind some picnic tables. There was no evidence that whoever installed the heater had been given the manual or was aware of the installation instructions.
Plaintiff’s complaint alleged that defendant’s warning was inadequate and that it improperly installed the heater in an area where patrons could come into contact with it. Defendant filed a motion for summary judgement, arguing that the heater’s manual did not create a duty of care and that plaintiff was aware of the warning and voluntarily undertook the actions leading to his injury. The trial court granted defendant’s motion; plaintiff appealed.
The Appellate Court began its analysis by reciting the longstanding principles set forth in the seminal case of Ward v. K Mart Corp., 136 Ill. 2d 132 (1990), which states that while a landowner has a duty to warn of a dangerous condition on the property, there is no duty to make the property completely hazard-free. Thus, a landowner is able to maintain a dangerous condition on the property and avoid liability so long as a sufficient warning is provided to render the otherwise dangerous condition “reasonably safe.”
In distinguishing Ward, the court pointed out that unlike in Ward, the present case did not involve a failure to warn as the bar had a warning sign posted above the heater at the time of plaintiff’s injury. The court added that it was undisputed that plaintiff had seen the warning just before his injury and on prior occasions. Thus, to the extent that the bar had a duty to warn, it effectively discharged that duty with its posted sign, which was deemed to be an adequate warning. The court further found there was no basis to impose a duty on the bar to provide an additional warning or take additional steps to protect plaintiff from an injury caused by what it considered to be an open and obvious condition. The court found that it would be far too burdensome to require bars to provide for the total care and safety of its patrons, including protection from open and obvious conditions.
While plaintiff conceded that the danger posed by the heater was open and obvious, he nonetheless argued that one or both of the recognized exceptions to the open and obvious rule applied, namely, the “deliberate encounter” and “distraction” exceptions.
The court found that neither exception applied. As to the distraction exception, the court rejected plaintiff’s argument that his voluntary intoxication distracted him from the dangerous heater. Citing the Illinois Supreme Court’s decision in Bruns v. City of Centralia, 2014 IL 116998, the court pointed out that for the exception to apply, the “distraction” cannot be self-created; plaintiff’s attention must be diverted by something outside of his own mind. Further, defendant must reasonably foresee the distracting event. In the present case, plaintiff’s intoxication was considered voluntary and thus self-created and internal to his own state of mind. There was also no evidence that any of defendant’s employees knew of plaintiff’s intoxication. Therefore, it would have been unreasonable to expect defendant to have foreseen that plaintiff would ignore a conspicuous warning and deliberately back into a heater to scratch an itch and injure himself.
The court also rejected plaintiff’s argument that the deliberate encounter exception applied. For this exception to apply, plaintiff was required to demonstrate, at a minimum, some compelling reason that forced him to confront the danger and the lack of a viable alternative. Not surprisingly, the court found that plaintiff’s decision to confront a known burn hazard in order to scratch an itch and keep warm was not a compelling reason to encounter the heater. A viable alternative would have been for plaintiff to have simply worn a coat if he wanted to stand outside to smoke.
Finally, the court rejected plaintiff’s argument that he was owed a duty based on defendant’s alleged improper installation of the heater. The court relied on the same reasoning applied earlier in the opinion, namely that the presence of the warning sign extinguished any foreseeable danger posed by the heater.
Smith reminds us that warning signs can shield a defendant from liability provided they are clear, concise, and prominently displayed. Injecting a bit of humor into the equation can’t hurt either, especially if it serves to make the warning more memorable. Smith also shoots down a plaintiff’s attempt to use his voluntary intoxication as a basis to trigger the distraction exception to the open and obvious doctrine, which at least in this author’s view, was the right decision. Interestingly, there was no evidence that any of defendant’s employees knew of plaintiff’s intoxication prior to the injury. This begs the question of whether evidence to the contrary would have been sufficient to create a duty for the bar to have safeguarded against any resulting injury.