• The evaluation of potential dangers and risks of event elements need to be tested against what is "obvious and open."
• If you're planning something that even a 4-year-old would appreciate could cause harm, then your attendees should be able to comprehend the danger as well.
• If you're worried, get your attendees to sign liability waivers, and put out signs warning of any danger.
It stands to reason that individuals should be responsible for their own safety and self interests. In other words, we should all use our common sense at all times, particularly when in a situation that presents some danger. Nevertheless, this has not prevented people from suing baseball teams for being hit by a foul ball: Who would ever expect a ball to fly in the stands and hit somebody? Or, as happened in 1994, suing McDonald's when they discover that a cup of coffee is hot.
Add this to the list: Bonfires are hot and can burn you. Now what does this mean to planners?
In a recent Illinois decision, an appellate court held that it was obvious that a bonfire can cause burns if your body comes in contact with the embers, upholding the verdict of a trial court. The particulars show a sorority square dance was held on a farm. The plaintiff, a university student, alleged that she fell into the embers while posing in front of the fire, suffering first-, second- and third-degree burns. She sued the farm for negligence.
The appellate court ruled that "a reasonable person" should have known to exercise caution near a bonfire.
Adding to the agony was the fact that the plaintiff had consumed about five cans of beer before getting to the barn dance. While there, she consumed two or more cans while sitting on a bale of hay about five feet from the blaze. The plaintiff asked her boyfriend to take a picture of her in front of the fire. While backing up to get the perfect pose, she stepped on an object and fell backwards into the embers. However, she testified that even though she was drinking, she felt completely in control of her actions. "I was trying to make sure I took a good picture." But was she personally responsible?
In reaching its decision in favor of the defendant, the court considered four factors:
1. Was the injury foreseeable?
2. Was it likely?
3. How difficult was it to prevent?
4. What were the consequences of putting the burden on the defendant, not the plaintiff?
Additionally the courts asked the question, was the danger "open and obvious"?
The court noted, "If a child as young as 4 can reasonably be expected to fully understand and appreciate the danger of fire, a young woman clearly must be expected to appreciate the danger of a large bonfire, the embers of the still-burning fire and any debris in the immediate vicinity of the still-burning fire and its embers."
Did the farm have an obligation to move the hay bales away from the fire? The court noted the plaintiff was not injured by the hay bales but rather by the fire itself.
In the end, the court said imposing a burden on the defendant to guard against an injury like the plaintiff's would require the farm not to have bonfires at all. The farm had no duty to guard against the woman's lack of common sense
Jonathan T. Howe, Esq., is a senior partner of the Chicago and Washington, D.C., law firm of Howe & Hutton Ltd., specializing in meetings and hospitality law. Email questions to him at firstname.lastname@example.org.