by Stephen H. DiNolfo and Ryan Morton (Spring 2017)

When a customer injures another customer at a rowdy restaurant, the atmosphere promoted by the restaurant might increase the owner’s duty owed to patrons, according to a recent ruling by an Illinois appellate court.

In Libolt v. Weiner Circle, Inc., 2016 IL App (1st) 150118, a plaintiff accused the restaurant of negligence by creating an environment where customers could get injured. The restaurant argued there was no way for the plaintiff to prove the restaurant’s actions caused her injuries. The appellate court, however, held that the atmosphere promoted by the eatery elevated its duty to protect customers.

Leah Libolt was a late-night customer at Weiner Circle in Chicago. The restaurant is known for intentionally acting rudely to customers, who eat at the hot dog stand partly because of that atmosphere or “schtick.” Witnesses described the scene at 2 a.m. as loud and rowdy. One intoxicated man in particular was having a verbal fight with some of the restaurant’s employees. Libolt testified that the situation escalated, as the employees threatened him aggressively. Another customer shoved the man, who ran into Libolt, knocking her to the ground. She broke her wrist and elbow, leading to multiple surgeries and months of physical therapy.

Libolt sued Weiner Circle, alleging the restaurant acted negligently in several ways, such as not forcing the man to leave the premises, not protecting customers, and encouraging employees to antagonize customers. Weiner Circle moved for summary judgment, arguing there were no facts that could support Libolt’s claim. The trial court granted that motion, and Libolt appealed.

The appellate court first considered whether Weiner Circle had a heightened duty to protect its customers. If there was no legal duty, then summary judgment was appropriate. Restaurants typically do not need to guard against unforeseen dangers like customers running into each other. Libolt argued, though, that the restaurant’s employees owed her an elevated duty of care because they provoked the drunk man into unruly behavior without taking steps to protect other patrons.

The court considered four factors regarding duty and agreed with the plaintiff. First, the injury was reasonably foreseeable, given the restaurant’s rude gimmick and the typically intoxicated customers at that time of night. Second, it was likely that such an environment could cause an injury. Third, the restaurant could have warned customers about this danger, simply by posting signs or better training its employees. And lastly, those precautions would not have burdened the restaurant. Therefore, Weiner Circle had a special duty to protect its customers.

The court also considered whether there were enough facts to prove the restaurant violated its elevated duty. To be found liable for negligence, a defendant’s actions must have been the proximate cause of an injury. Weiner Circle had argued there were no facts available that could prove causation. Because the man was never identified, it would be impossible to determine why he bumped into Libolt, let alone whether the restaurant affected that action.

The appellate court disagreed, however, saying the material facts of the case were still in dispute. Although the man’s identity is unknown, there were many facts available showing the atmosphere of the restaurant on that evening. Several witnesses also could testify about actions taken by restaurant employees, which a jury could use to establish proximate cause. The court held that “reasonable persons could draw divergent inferences” from both disputed and undisputed facts in the record, so the summary judgment should not have been granted. The case was remanded back to the trial court and is still pending.

The court clarified that not all restaurants should be subject to this elevated duty to protect customers. The court’s ruling narrowly applies where a business “intentionally creates and knowingly maintains a volatile environment in which the likelihood of injury to its invitees is unreasonably high.” In those situations, the business must warn and protect customers from dangers.