When you take your child to a restaurant, park or other property, the property owner owes both of you a duty of care to help avoid the risk of foreseeable injuries due to hazards on site. However, a recent decision by the U.S. Court of Appeals for the Seventh Circuit held that parents are not absolved of personal responsibility for their children’s safety upon entering the premises of another.
The personal injury lawsuit before the court involved a child who suffered serious injury to his finger, which ultimately had to be amputated, when a stanchion (also known as a rope barrier) fell onto his hand as he and his brother were playing while his parents waited in line to place their order.
The boy’s parents sued the restaurant on a theory of premises liability. Trial court granted summary judgment to defendant. The court concluded any duty the restaurant might have owed to the child in this case was “abrogated” by the fact his parents were with him with him.
To abrogate means to avoid responsibility for.
According to appellate court records, the child and his family were visiting a new coffee shop (defendant) that had opened two months prior in downtown Chicago on a busy corner. The store had a number of ways to corral patrons to form a line and control the crowds inside the store. These included lightweight floor baskets placed strategically throughout, coffee stands and stanchions. These stanchions had a base that was round and also retractable belts that could connect to other stanchions. This particular franchise of the coffee shop commissioned a local person to craft custom metal stanchions, which were built with 1800s-era iron fences or stair posts. They were connected by chains and welded to a base attached to the floor so the chain wouldn’t cause the stanchion to tip over. The store chose not to affix the stanchions permanently to the floor because they wanted to first establish traffic patterns and also, they wanted to be able to move them around later if necessary.
The family was present with their two boys, one three and one five. They walked past the stanchions, ordered their drinks and then went to the second floor to use the restrooms. They then returned to the main level and were exiting when they heard a loud noise immediately followed by the 3-year-old crying. The family picked up their son, walked to the car and took him to a hospital emergency room. He was taken from there by ambulance to a different hospital in hopes they would be able to save his finger. However, the finger could not be saved, and had to be surgically amputated. He also injured another finger, which was treated with a pin insert, which was later removed.
Neither parent saw what caused the rope barrier to fall, but there is some evidence the boys were playing on it. When asked in a deposition, the victim’s older brother says they were swinging on the ropes because they were bored. A barista testified the boys were “jungle gyming” the stanchions, with one hanging on the rope and another climbing up the pole. Another worker recalled seeing the boys running near the stanchions.
It was later revealed that a store manager had expressed concerns about the stanchions prior to opening, noting that while they were beautiful and unique, they should perhaps be fixed to the floor so there would be no concern about them falling over.
Plaintiffs filed a personal injury lawsuit against the corporation, alleging failure to adequately secure the stanchion, failure to properly inspect and ensure its stability and failure to warn patrons of the potential danger posed by the stanchion – particularly the risk to minors, who would fail to appreciate it.
The district court granted summary judgment for defendant, finding the boy’s parents, not the store, bore the responsibility to protect plaintiff from the obvious danger of playing on unsecured stanchions. In its affirmation of that ruling, the U.S. Court of Appeals for the Seventh Circuit found that any duty owed to the 3-year-old by the store was abrogated by the fact that his parents were present and responsible for his supervision.
Fort Lauderdale injury attorneys can explain that Illinois, unlike Florida, has generally rejected the attractive nuisance doctrine, which imbues landowners or occupiers a greater duty of care to small children than owed to adults. Instead, the court views the true basis of liability the foreseeability of harm to the child. The family insisted the restaurant had a duty to prevent he injury because neither they nor their son knew about he danger posed by these stanchions. They could not have anticipated these fixtures would fall and therefore there was at least a question as to whether the danger was “hidden” as opposed to open and obvious (a defense in premises liability claims).
Ultimately, the appellate court found the facts did not support them imposing a duty of care on the coffee shop and that even if they could not have foreseen the particular injury their son suffered, they still could have gathered that climbing or swinging on the ropes or poles could have resulted in injury.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Roh v. Starbucks Corp., Feb. 2, 2018, U.S. Court of Appeals for the Seventh Circuit
More Blog Entries:
Jury Finds South Florida Restaurant Vicariously Liable for Crash in $2M Verdict, Jan. 29, 2018, Fort Lauderdale Personal Injury Attorney Blog