The Illinois First District Appellate Court recently issued an opinion that could strongly impact bars, nightclubs and certain restaurants – Libolt v. Wiener Circle, Inc., 2016 IL App (1st) 150118. Wiener Circle is a hot dog restaurant in Chicago known for its “rowdy and lively” environment and was described by witnesses in the case as having a “shtick” of yelling at people. A television episode filmed about the restaurant showed the place filled with intoxicated customers yelling back and forth with the counter staff.
The plaintiff was visiting friends and after dinner and drinks at various bars the plaintiff and her friends went to Wiener Circle at approximately 2:00 am. The testimony regarding what took place was somewhat conflicting but it seemed an unidentified man was acting rowdy and asked to leave by the staff. The man left but then returned and he continued to be a problem. It is not known exactly what happened but it seems the man bumped the plaintiff’s friend, the friend pushed the man and the man in turn bumped into the plaintiff. The plaintiff stumbled, caught herself with her arm and her arm was injured. However, it should be noted the plaintiff testified she could not say for certain the unidentified man was the person who knocked her over.
A long time employee of the restaurant testified that between 1:00 and 2:00 am, 75% of the customers were intoxicated. The employees were behind a counter and glass partition. One employee was occasionally in the main restaurant cleaning. There was no security or bouncers in the restaurant.
The plaintiff sued Wiener Circle, alleging the restaurant was negligent because it:
- Permitted the continued presence of the quarrelsome man;
- Failed to control the man and remove him from the premises;
- Did not protect against the man’s misconduct;
- Encouraged its employees to antagonize, aggravate and provoke patrons and business invitees;
- Negligently hired people without adequate training to determine when a patron was too disorderly as to require removal from the premises;
- Failed to warn plaintiff and others of the high incidence and danger associated with customers who become quarrelsome; and
- Failed to provide adequate security to protect the plaintiff.
The plaintiff contended that because Wiener Circle created a hostile, volatile environment within its restaurant, it had a heightened duty to protect or warn customers of the potential dangers that may arise from such volatility.
The restaurant filed a motion for summary judgment, which was granted, but the plaintiff appealed and the appellate court reversed and remanded the case for trial.
The parties did not dispute the plaintiff was a business invitee of the Wiener Circle but there was a dispute as to the duty of care owed to the plaintiff. Relying on the Illinois Supreme Court’s ruling in Marshall v. Burger King Corp., 222 Ill.2d 422 (2006), the court evaluated the four factors which determine a business’ duty of care:
Factor #1 – Foreseeability of Injury: The court ruled the plaintiff’s injury was reasonably foreseeable because 75% of the patrons were believed to be intoxicated during the late night hours. The restaurant then engaged in a type of banter with the intoxicated customers that often turned to insults and vulgarity. In this case, there was also testimony that employees raised a brush at the man and threatened the unidentified man with pepper spray.
Factor #2 – Likelihood of Injury: The court determined it was reasonably likely a customer could be injured in the restaurant due to the type of environment that was typical at 2:00 am.
Factor #3 – Magnitude of Burden to Guard Against Injuries: The court felt the burden on Wiener Circle was minimal because it only needed to warn against the dangers by posting signs; properly train its employees not to antagonize customers beyond a certain point; or hire security to work during the late night hours.
Factor #4 – Consequences of Placing Burden: The court also found the consequences of the burden to be minimal because the restaurant could hire security to work a few late night hours or train staff on how to recognize a situation getting out of hand and when to call the police.
For these reasons, the court determined Wiener Circle intentionally created and knowingly maintained a volatile environment where the likelihood of a customer being injured was unreasonably high so it had a duty to protect the customer or warn of the dangers. Summary judgment in favor of the restaurant was overturned.
Interestingly, the appellate court warned it was not holding all restaurants to a heightened duty to its customers, just in those situations where a volatile environment was created. In my opinion, this warning is not likely to hold much weight in the future because plaintiffs can easily argue many bars, nightclubs and even some restaurants have a known “volatile environment.”
Despite what the court said, heightening the duty of care on such businesses can create a significant burden and severe consequences. It is easy for the court to tell one restaurant to post a sign, give some extra training or hire a security guard for a few hours. In real life, those are very costly changes, especially to chain businesses. In addition, maybe I’m a skeptic but it seems unlikely the court would have ruled any different if a sign was on the door or the employees had gone through training to be a little nicer with drunk customers. If there had been a security guard, the plaintiff would have simply changed her cause of action.
This is a ruling that definitely needs to be watched, to see if any other courts apply this heightened duty.
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