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Posted on Sep 11th, 2018

Snow and ice, natural and obvious?

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;

[x] Id.;

[xi] Id. at 52;

[xii] Id. at 53;

[xiii] Id. at 69;

[xiv] Id. at 74;

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