A state appeals court’s ruling has ordered up yet more legal trouble for the owners of Chicago’s famous Wieners Circle restaurant, who a woman said don’t do enough to protect her and other customers should the restaurant’s renowned rowdy atmosphere spark altercations, like the one the woman claimed resulted in her suffering a broken arm.
In an opinion filed May 11, a three-justice panel of the First District Appellate Court overturned a Cook County Circuit Court decision granting summary judgment to The Wieners Circle in a complaint it faced from a woman injured in an early morning fracas outside the restaurant.
Justice James Fitzgerald Smith wrote the opinion, justices Terrence J. Lavin and Aurelia Pucinski concurring.
Leah Libolt sued Wieners Circle in October 2013, alleging the rough give-and-take between employees and customers, for which the restaurant on North Clark Street in Lincoln Park is known, contributed to a 2 a.m. scuffle during her October 2011 visit that left her with a broken arm. A patron who was in conflict with restaurant staff and other customers crashed into Libolt, for reasons she could not fully determine, court documents said, and she fell on her arm and broke a bone. Cook County Circuit Judge Kathy Flanagan granted the restaurant’s motion for summary judgment.
In her appeal, Libolt argued the “hostile, volatile environment” Wieners Circle cultivates — staff are encouraged to interact with patrons using coarse language and raised voices — imbues the restaurant with “a heightened duty to protect or warn customers of the potential dangers that may arise from such volatility.”
Citing the 2006 Illinois Supreme Court decision in Marshall v. Burger King, Smith wrote,” There are certain special relationships, such as that between a business invitor and invitee, which can give rise to an affirmative duty to aid or protect another against unreasonable risk of physical harm. The duty of a business invitor to protect against the unreasonable risk of physical harm includes harm caused by a third party’s innocent, negligent, intentional or criminal misconduct.”
Libolt cited a documentary on the restaurant “that reflects late night patrons at Wieners Circle and Wieners Circle employees yelling back and forth at one another. In the video, Wieners Circle principals Larry Gold and Barry Nemerow were interviewed, explaining that Wieners Circle staff regularly scream and swear at the drunk customers, noting that ‘the employees started having fun (with the shtick), and now people actually come here just for the fun and the — sometimes there is vulgar language.’ ”
The banter is central to the Wieners Circle aesthetic, Smith wrote, and it becomes more aggressive in late night hours. One employee testified roughly 75 percent of late night Wieners Circle customers are intoxicated.
On the night she visited, Libolt said she saw one employee wave a large spoon at the man who fell into her; her friend testified another employee waved a larger metal grill brush at the man. Still another person testified “he saw one of the wait staff threaten the man with pepper spray” after the normal back-and-forth with staff grew “louder and more aggressive.”
Smith wrote “injury is reasonably foreseeable” in an environment like the one Wieners Circle promotes, and also it is reasonably likely a patron might be injured. The burden to guard against such injuries, he wrote, is minimal in that it could be accomplished with signs, employee training and additional security. By the same logic, he said, the consequences of placing that burden on the restaurant are minimal.
Libolt argued “the question of whether Wiener Circle breached its duty and whether that breach was the proximate cause of plaintiff’s injuries are factual matters for the jury to decide.” Wieners Circle argued the facts of the night of the broken arm are so uncertain as to make discussion of proximate cause inappropriate. But Smith said Libolt presented enough evidence to suggest the alleged negligence arguably caused the broken arm.
The opinion reversed the original decision and remanded the case back to Cook County Circuit Court for further proceedings.
Cook County court records indicate Libolt was represented by attorney Leonard S. Becker, of Chicago, while Wieners Circle was defended by the Kilgallon Law Offices, also of Chicago.