This lawsuit revolved around a personal injury dog bite claim occurring at a residential property in Crawford County, Illinois. Jason Schutte represented and defended the landlord who owned the property where the bite occurred. Plaintiff was visiting a tenant who rented the property and owned the dog in question. Plaintiff was bitten by the tenant's dog upon entering the residence.
Plaintiff filed suit against the landlord asserting causes of action for negligence and violation of the Illinois Animal Control Act. Jason obtained summary judgment in favor of his client on both causes of action.
Plaintiff fell and injured herself at a grocery store. Plaintiff sought to utilize the snow removal contractor’s contract with the property owner as basis to establish liability for her fall on snow/ice at the property. Plaintiff did not establish that (1) she relied on contract between property owner and snow removal contractors to remove all snow/ice or (2) that snow/ice was unnatural accumulation, thus barring her recovery in this personal injury action.
Facts of Case:
This case revolves around a slip and fall injury occurring at Food 4 Less, a grocery store, on November 12, 2013.[i] Plaintiff Jordan slipped on an access ramp on “black ice” near the store entrance. She did not observe the ice until after the fall. There was no snow on the ground and the temperature was below 32 degrees. Plaintiff suffered an ankle injury requiring surgery.[ii]
Defendant Food 4 Less had a contract with Cherry Logistics which in turn had a contract with Pete’s Lawn Care to provide snow and ice removal on the location where the fall took place. Plaintiff Jordan was not aware of either contract at the time of her fall at the property. She testified via deposition that she had never heard of Cherry Logistics or Pete’s Lawn Care.[iii]
Food 4 Less’s contract with Cherry Logistics provided that Cherry Logistics would monitor weather conditions and “act reasonably” in determining when to apply de-icer to the store’s sidewalks and parking lot.[iv]
“Cherry Logistics’ contract with Pete’s Lawn Care contained much more detail on the obligations of Pete’s Lawn Care. Subsection b (“Salting”), from that contract provided:
Subsection c of the contract, which governed Handicap areas, provided that “[e]xtra attention must be given to all handicap sidewalk ramp access areas and designated handicap parking spaces during business hours. These areas must be cleared of any snow, slush, or ice down to bare pavement at all times.”
Subsection h governed when services were to commence and stated:
Food 4 Less store’s hours of operation were from 6 a.m. to midnight.[vii]
Weather reports submitted by the plaintiff indicated that there was light precipitation on the day before prior to the fall. Rain began around 11:00 a.m., at which time the temperature was 45 degrees. Light snow began as temperatures fell through the afternoon. A low temperature of 25 degrees was reached shortly after midnight. There was no precipitation on the day of the accident; however, the temperature stayed below 32 degrees in the morning, then rose to 33 degrees from around in the afternoon, then dropping below 32 degrees. Pete’s did not perform any snow or ice removal actions at the location in question in November 2013, prior to plaintiff’s fall.[viii]
Plaintiff sued both Food 4 Less and Pete’s Lawn Care. She alleged “that defendants were negligent in monitoring weather conditions to determine whether snow and ice removal services were required, and they were also negligent in removing snow and ice from access ramps on the property.”[ix] The trial court granted summary judgment in “finding that there was no evidence (i) of an unnatural accumulation of snow or ice, (ii) that defendants had actual or constructive notice of snow or ice, or (iii) that defendants breached any contractual duty.”[x]
The Appellate court noted that the natural accumulation rule provides that property owners do not owe a general duty to remove natural accumulations of snow and ice from their property. Hence, to succeed in a slip and fall case caused by snow or ice, the plaintiff must generally establish that (1) the accumulation of snow or ice was unnatural and (2) that the defendant had actual or constructive knowledge of the condition.[xi]
There was no argument in this case that the ice accumulation in question was unnatural, rather, plaintiff asserted that defendants voluntarily assumed a contractual duty to remove natural accumulations of ice, and were liable in tort to third parties for negligently failing to fulfill that duty.[xii]
The court noted that plaintiff’s cause of action for voluntarily assuming a duty to remove snow/ice was governed by section 324A of the Restatement (Second) of Torts:
““One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” Restatement (Second) of Torts § 324A (1965).”[xiii]
The court noted that sections (a) and (b) did not apply to the facts of this case, leaving only section (c) as the possible avenue for liability. Plaintiff did not assert that she personally relied on the two contracts at issue in this case. In fact, she admitted in her deposition that she had never heard of Cherry Logistics or Pete’s Lawn Care.[xiv]
Liability under subsection (c) can also be based upon reliance of the third party or “the other”—i.e., the party to whom the defendant undertook to provide services. Plaintiff asserted that “(i) Food 4 Less relied on Cherry Logistics to perform snow and ice removal per the terms of their contract; (ii) likewise, Cherry Logistics relied on Pete’s Lawn Care to fulfill its contractual duty; and (iii) their reliance entitles Jordan, as a third-party beneficiary of the Food/Cherry and Cherry/Pete contracts, to recover in tort for her injuries because Pete’s Lawn Care allegedly failed to fulfill its contractual duties.”[xv] The court rejected plaintiff’s arguments on this point.
The Jordan court noted that Illinois courts are split regarding whether a party who contracts to remove snow and ice, and then fails to do so, can be liable under section 324A(c) to third parties. That being said, “Illinois courts have repeatedly rejected the argument that the existence of a snow removal contract overrides the natural accumulation rule.”[xvi]
The Jordan court ruled that merely entering into a snow removal contract does not create in the contracting parties a duty to protect third parties from natural accumulations of snow and ice when the third parties did not personally rely on the contract. Because Jordan did not present evidence that (1) the ice on which she fell was an unnatural accumulation or that (2) she relied on the Food/Cherry and Cherry/Pete contracts, she could not establish liability against the defendants and summary judgment was appropriate.[xvii]
Effect of Case:
As mentioned above, the Jordan court noted (and discussed in further detail in the opinion) that there are split authorities on the issue of third party liability in voluntary assumption of duty situations; however, this case presents a common sense approach to evaluation of these types of claims.
Generally a plaintiff must show that there was an unnatural accumulation of snow/ice in order to establish liability against the property owner or snow removal contractor. If this cannot be done, then an alternative avenue to establish liability would be through the assumption of duty cause of action described herein. If the plaintiff intends to pursue this avenue, they will need to establish (1) that there was an assumed duty to remove all snow/ice (as we are assuming that there is no evidence of unnatural accumulation) and (2) that the plaintiff relied on this assumed duty. If these factors cannot be met, then the plaintiff likely will not be able to establish liability against the defendant.
[i] Jordan v. Kroger Co d/b/a Food 4 Less and Pete’s Lawn Care, Inc., 2018 IL App (1st) 180582, ¶4;
[iii] Id. at ¶5;
[v] Id. at ¶6;
[vi] Id. at ¶¶6-8;
[vii] Id. at ¶¶6-8;
[viii] Id. at ¶9;
[ix] Id. ¶10;
[x] Id. ¶¶10 & 14;
[xi] Id.at ¶18;
[xii] Id. at ¶19;
[xiii] Id. at ¶20;
[xiv] Id. at ¶¶21-22;
[xv] Id at ¶22;
[xvi] Id. at ¶23;
[xvii] Id. at ¶35;
Congratulations to Jason G. Schutte in publishing an article with the Illinois State Bar Association discussing the applicability of the open and obvious doctrine in premises liability involving snow and ice. Jason is a partner with our firm and focuses his practice in defense of liability and personal injury claims. He frequently authors articles discussing issues in tort law/civil liability claims.
By: Jason G. Schutte
Here in Illinois, winter weather such as snow and freezing rain, often create conditions that lead to slips and falls by patrons of businesses, invitees to personal residences or members of the general public. These slips/falls inevitably lead to personal injury claims and lawsuits.
The most common, “go to” defense against theses type of claims involving snow and ice is the argument that the injured party slipped or fell over a “natural accumulation” of snow/ice. The injured party inevitably argues that the property owner acted in some fashion so as to create an “unnatural accumulation” of ice or snow which created the conditions causing their fall. As a general rule, the natural accumulation defense provides very good protection to property owners in Illinois, and inevitably, their liability insurers.
There are situations where the property owner does create an unnatural accumulation of snow and the aforementioned natural accumulation defense cannot be utilized to defeat the plaintiff’s claim; however, that does not mean that the property owner is without defenses to the personal injury claim. Oftentimes, attorneys, property owners and insurers may overlook one of the most common defenses to premises liability claims, the open and obvious doctrine, when evaluating these claims.
The application of the open and obvious condition doctrine was recently analyzed in the Fourth District Appellate case Winters v. Mimglii Arbors at Eastland, LLC.
Facts of the case
In Winters, the plaintiff claimed that he slipped on an unnatural accumulation of snow at the apartment complex where he resided.[i] He asserted that in January of 2014, Defendant Changing Seasons pushed snow from Arbors’ (property owner/landlord) parking lot onto a sidewalk. Plaintiff left his apartment to walk to a laundry facility located on site at the apartment complex. He walked on the sidewalk that he alleged was blocked by the snow pushed by Changing Seasons and slipped due to the snow blocking the sidewalk.[ii]
Plaintiff filed suit against his landlord, Arbors, asserting that Arbors was negligent in various ways that resulted in the unnatural accumulation of slow which caused plaintiff’s injuries.[iii] Plaintiff filed suit against Changing Seasons, asserting that they had contracted to remove snow from Arbors’ property, and did so in a negligent fashion, resulting in the unnatural accumulation of snow that caused plaintiff’s injuries.[iv]
Plaintiff admitted that he observed the large pile of snow on the sidewalk before reaching it and that his visibility was not limited.[v] He further stated that there was a “cutout in the snow pile” where it appeared that other individuals had walked through the snow pile. He decided to proceed, laundry basket in hand, and walked through the snow pile. Plaintiff further admitted that he was able to see where he was walking and was aware that he was walking on snow and ice. Plaintiff slipped and broke his ankle while walking across the snow pile.[vi] Lastly, plaintiff admitted that there were alternative paths he could have taken to reach the laundry facility that was his destination.[vii]
Defendants filed motions for summary judgment asserting that the snow pile in question was an open and obvious condition, hence they owed no duty to plaintiff. Plaintiff opposed the motions, asserting that there were genuine questions of fact on this issue and alternatively, that the deliberate encounter exception applied, defeating the open and obvious rule.[viii] The trial court granted defendants’ motions.
The basics of the open and obvious doctrine
The open and obvious doctrine can preclude any duty being owed to a particular plaintiff if the condition causing the injury qualifies as “open and obvious.” A condition on land is considered ““open and obvious” when a reasonable person in the plaintiff’s position, exercising ordinary perception, intelligence and judgment, would recognize the condition and the risk involved.”[ix] Common open and obvious conditions are fire and bodies of water, but defects on sidewalks can qualify.[x]
There are two commonly recognized exceptions to the open and obvious doctrine. First, the distraction exception, which applies when the possessor of land has reason to suspect that invitees to the property may be distracted and will fail to discover or protect themselves against the open and obvious condition. This exception only applies when evidence is presented that the plaintiff was actually distracted.[xi]
Second, the deliberate encounter exception, applies when the possessor of land has reason to expect that the invitee will proceed to encounter the known or obvious danger because a reasonable person in the invitee’s position would do so. This exception most commonly is applied in cases involving some kind of economic compulsion, but its presence is not a per se requirement.[xii]
Appellate Findings in Winters
The appellate court in Winters found that the snow on the side walk was, in fact, an open and obvious condition in light of the fact that all parties were aware that it was present. The court further found that the deliberate encounter exception not apply as plaintiff knew there were alternative routes to his destination, the laundry facility, which he could have taken to avoid traversing the snow pile.[xiii] Further, there were no economic factors compelling plaintiff to traverse the snow pile in question.
The court did not analyze whether the distraction exception applied; however, it is clear that it would not as plaintiff admitted that he could see the snow pile in question, and, was aware of its presence. The court affirmed the trial court’s granting of Defendants’ motion for summary judgment.
These types of cases are certainly fact specific and dependent. When evaluating the viability of a personal injury claim arising from injuries related to ice or snow accumulation, it would behoove attorneys, property owners, claims representatives and other interested parties to consider not only the natural accumulation rule but also, whether a viable defense is presented through the open and obvious condition doctrine.
The two may be able to be asserted simultaneously or, as in the Winters case, it may be very clear that the snow/ice accumulation in issue is unnatural; however, it may be equally clear that the accumulation is an open and obvious condition which would not place any duty upon the property owner to remove or remediate the condition.
[i] Winters v. MIMG LII Arbors at Eastland, LLC, et. al., 2018 IL (4th) 170669, ¶1;
[ii] Id. at ¶9;
[iii] Id. at ¶10;
[iv] Id. at ¶11;
[v] Id. at ¶18;
[vi] Id. at ¶18;
[vii] Id. at ¶19-20.
[viii] Id. at 36-37;
[ix] Id. at 51, citing Olson v. Williams All Seasons Co., 2012 IL app (2nd) 110818 ¶42;
[xi] Id. at 52;
[xii] Id. at 53;
[xiii] Id. at 69;
[xiv] Id. at 74;