By: Jason G. Schutte
The Illinois Supreme Court recently discussed the limitations of the Illinois Snow and Ice Removal Act in Murpy-Hylton v. Lieberman, et al. In Murphy, plaintiff sustained personal injuries after slipping while walking on the sidewalk outside her condominium.[i] Plaintiff’s condominium was located at Klein Creek Condominium (herein Condo) in Carol Stream, Illinois. The Condo owned and controlled the common elements of the property.[ii] Condo retained the services of Lieberman Management Services, Inc., (herein Management) to manage the property.[iii]
A snowstorm occurred in February of 2011, which affected Carol Stream and resulted in 20 inches of snow accumulation. A snow removal and landscaping service hired by the Condo cleared snow and ice from the sidewalks of the condominium complex. Plaintiff’s fall occurred on the morning of February 18, 2011, when she was walking on the sidewalk behind her building toward the adjacent parking lot. Her fall resulted in a fracture to her leg, knee, and hip.
She filed a negligence suit against defendants Management and Condo. Plaintiff asserted that her fall was caused by a defective condition and negligent maintenance of the premises which created an unnatural accumulation of ice.[v] More specifically, plaintiff asserted in her Fourth Amended Complaint, the defendants were negligent in the following actions/omissions:
Facts of Case
Plaintiff testified in her discovery deposition that that the weather on the date in question was cold (in the twenties) and sunny without precipitation. No precipitation had occurred since the last snowfall in early February. Plaintiff did not see any ice prior to falling but she did notice a patch of ice after she fell, approximately the size of a letter-sized piece of paper. Plaintiff believed that the ice that caused her fall resulted from water that had accumulated on either side of the sidewalk. She had observed that water would run off from the downspouts attached to either side of the building onto the grass. The water would collect on the sidewalk and freeze instead of draining onto the parking lot.[vii]
Several other witnesses were deposed regarding their observations of the condition of the premises where plaintiff fell. Roger McGowan, a neighbor, slipped and fell on ice in the same area of the sidewalk that same morning at about 6 a.m. He observed an issue of water collecting on the sidewalk that had been present since he moved to the complex in 2008. Roger believed that the sidewalks were lower than where the foundation of the building sat, and, lower than where the downspouts were positioned. Water would run away from the building and toward the sidewalk, where the water would collect after heavy rains. Also snow from areas close to the building would melt and then run toward the sidewalk. Once the weather got cold again the water would freeze up across the sidewalk.
Similarly, Michael Melson, plaintiff’s brother, observed standing water on the sidewalk in the area where plaintiff fell either that night or the next day and he too slipped near the time of the plaintiff’s fall. He also observed water would pool on the sidewalk after a rainfall or melting snow. Likewise he believed the sidewalk was lower than the grass and the area was graded toward the grass instead of the parking lot, allowing water and dirt to run down onto it and allowing patches of ice to form.[ix]
The president of Condo, Jeff Graves, stated that prior to her fall he was aware of water collecting on and around the sidewalks in other areas of the complex, especially during heavy rainstorms, but he was not aware of similar water pooling in the area behind the building where plaintiff fell. Graves inspected the area where plaintiff fell several hours after the fall, and the sidewalk was “bone dry.” The temperature was in the forties or fifties and the sidewalk was “bone dry”.[x] Photographs of the sidewalk area where plaintiff fell, which were taken a month after the fall, depicted standing water on the sidewalk and mud and debris on the sidewalk from the grassy area.[xi]
David Selio owned the snow and ice removal and landscaping service hired by the Condo and was also a resident of Klein Creek. He stated that under the contract, he performed snow and ice removal services when two or more inches of snow fell but for any snowfall less than two inches prior authorization from the Condo was required. He last cleared the snow on February 7, 2011, approximately 11 days before the fall in issue. Mr. Selio was aware that prior to plaintiff’s fall, a drain tile was installed in another area of the complex to redirect the flow of water on the property away from the foundation to prevent soil erosion. In 2010, Condo accepted his bid for installation of drain tile work in another area of the complex to improve drainage near the foundation. In October 2011, additional drainage redirection work was done on the premises, including work to the area behind the building where plaintiff fell.
Defendants filed a joint motion for summary judgment, arguing, in part, that plaintiff’s slip and fall claim was barred by the immunity provided to residential owners and operators under the Snow and Ice Removal Act, (herein Act), 745 ILCS 75/0.01 et seq. (West 2010). Trial court granted defendants motion, then the appellate court reversed.[xiii] The Supreme Court reviewed in light of a split in authority in opinions of the Appellate Courts.
Landlords under the common law do not owe a duty to remove natural accumulations of snow and ice.[xiv] “To hold otherwise would create an unreasonable burden of vigilance when considering that snowstorms cannot be foreseen or controlled”.[xv] Landowners do owe a duty of reasonable care to prevent unnatural accumulations of snow and ice on their property where they have actual or constructive knowledge of the dangerous condition. A landowner may be liable where snow or ice accumulates by artificial causes or in an otherwise unnatural way, where the condition has been present long enough to charge the responsible party with notice and knowledge of the condition’s existence.
The Illinois General Assembly provided immunity to residential property owners under the Illinois Snow and Ice Removal Act in order to encourage them to “clean the sidewalks abutting their residences of snow and ice.” 745 ILCS 75/1,2 (2010).[xvii] §2 of the Act provides for immunity for:
“Any owner, lessor, occupant or other person in charge of any residential property, or any agent of or other person engaged by any such party, who removes or attempts to remove snow or ice from sidewalks abutting the property shall not be liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting from his or her acts or omissions unless the alleged misconduct was willful or wanton.” 745 ILCS 75/2 (West 2010).
The Supreme Court noted that the intent of the General Assembly was to encourage residential property owners to clear their sidewalks of snow and ice and that it was “undesirable” for any such person to be found liable due to their efforts at snow/ice removal.[xviii] The court noted that the statute specifically states that any residential property owner that “removes or attempts to remove snow or ice” will be provided immunity in that they “shall not be liable” for injuries allegedly occurring from those actions.[xix] Hence, the scope of the statute is limited to those times where property owners take action to remove the snow/ice.
The court found nothing in the plain language of the Act that evidenced an intent by the General Assembly to immunize liability for falls on accumulations of snow/ice that occur due to circumstances unrelated to negligence efforts at snow and ice removal.[xx] The court further emphasized that “The purpose of the immunity is to reward those residential property owners who voluntarily undertake a duty where there otherwise would be none…not to encourage the failure to otherwise maintain the premises in a reasonable save condition.” [xxi]
The Supreme Court stated that the plaintiff in this case alleged that the defendants were negligent in maintaining their property. The plaintiff was not asserting that the defendants were negligent in removing snow/ice. Hence, the immunity provisions of that Act were not applicable to the case at bar and summary judgment was inappropriate.
Effect of Case
This ruling from the Supreme Court clarifies the Act in definitively stating that it only provides immunity to residential property owners when the allegations of negligence asserted by the plaintiff arise from the owners’ efforts at removing snow/ice. If the allegations of fault included in plaintiff’s complaint arise from negligent maintenance of the premises where the injury occurs, there will be no immunity provided under the Act. The case will have to be proven/defended on the facts of that case.
Thorough discovery should be conducted to evaluate if any witnesses can present testimony that the accumulation in issue actually arose from something other than normal precipitation. For instance, in the case above, extensive testimony and evidence was presented showing the water accumulation occurred often prior to the fall in issue. Practitioners, claims representatives and parties should investigate whether plaintiff can establish that the water accumulation occurred more than once. This information will help prove/disprove whether there accumulation occurred due to the structure/maintenance of the property. Additionally, it may be necessary to address common drainage issues at the property, including guttering, sloping of yards/landscaping, potential defects of walkways, etc. to determine if they had any effect on creating the snow/ice accumulation in issue.
[i] Murphy-Hylton v. Lieberman Mang. Services, Inc., et. al., 2016 IL 120394 (2016) at ¶1
[ii] Murphy ¶3
[iii] Murphy ¶3
[iv] Murphy ¶4
[v] Murphy ¶1
[vi] Murphy ¶4
[vii] Murphy ¶5
[viii] Murphy ¶6
[ix] Murphy ¶7
[x] Murphy ¶8
[xi] Murphy ¶10
[xii] Murphy ¶11
[xiii] Murphy at ¶1, 12
[xiv] Murphy ¶19
[xv] Murphy ¶19
[xvi] Murphy ¶20
[xvii] Murphy ¶24
[xviii] Murphy ¶27
[xix] Murphy ¶28
[xx] Murphy ¶29
[xxi] Murphy ¶30