Allen v. Cam Girls, LLC

• Decision Date: 26 December 2017
• Docket Number: No. 1–16–3340,1–16–3340
• Citation: 2017 IL App (1st) 163340,98 N.E.3d 474
• Parties: Robin ALLEN, Plaintiff–Appellant, v. CAM GIRLS, LLC d/b/a Jazzercise Glenview, Alliance Investment Source, LLC, Interforum Holdings, Inc., and ZL Landscaping, Inc., Defendants (Alliance Investment Source, LLC, and ZL Landscaping, Inc., Defendants–Appellees).
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 163340

98 N.E.3d 474

Robin ALLEN, Plaintiff–Appellant,

v. CAM GIRLS, LLC d/b/a Jazzercise Glenview, Alliance Investment Source, LLC, Interforum Holdings, Inc., and ZL Landscaping, Inc., Defendants(Alliance Investment Source, LLC, and ZL Landscaping, Inc., Defendants–Appellees).

No. 1–16–3340

Appellate Court of Illinois, First District, SECOND DIVISION.

December 26, 2017

Randall A. Wolff & Associates, Ltd., of Arlington Heights (Randall A. Wolff and Kevin C. Buge, of counsel), for appellant.

Leahy, Eisenberg & Fraenkel, Ltd., of Chicago (David I. Walters, of counsel), for appellees.

OPINION

JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Robin Allen was injured when she slipped in the parking lot of a strip mall. The property owner, defendant Alliance Investment Source, LLC, had a contract for snow removal with defendant ZL Landscaping, Inc. Allen brought suit against Alliance and ZL, among others, alleging that their negligent maintenance of the lot caused an unnatural accumulation of snow and ice that caused her fall.

¶ 2 The trial court granted summary judgment to defendants, and we affirm. Although Allen's experts presented some evidence of an unnatural accumulation of ice in the parking lot, Allen could not establish a causal relationship between that alleged unnatural accumulation and her fall since she did not see what she fell on but only "assum[ed]" and "guess[ed]" that it was ice. Thus, she failed to raise an issue of material fact as to whether defendants' alleged negligence was the proximate cause of her injuries.

¶ 3 BACKGROUND

¶ 4 Around 8 a.m. on February 10, 2013, Allen was going to a Jazzercise class at 1151 Waukegan Road in Glenview, Illinois. The studio was located in a strip mall owned by Alliance. According to Allen, the parking lot was covered in matted-down snow. As she walked across the parking lot, she slipped and fell, fracturing her ankle.

¶ 5 Allen initially brought suit against Alliance and others who are not parties to this appeal. She later amended her complaint to add ZL as a defendant. In her second amended complaint, she alleged that the design of the parking lot caused melted snow to pool and freeze in areas where customers walk. She also alleged that ZL plowed the parking lot in ways that caused unnatural accumulations of snow and ice, including "black ice" in uneven, deteriorated areas of the parking lot.

¶ 6 During her deposition, Allen discussed three factors that she believed contributed to her fall. First, she "assum[ed]" that she slipped on a patch of ice.

"COUNSEL FOR ALLIANCE: Do you know if you stepped upon a patch of ice that was underneath the snow or if the snow in and of itself was slippery?

ALLEN: I'm just assuming that it was ice, but I don't know that for sure. I mean, the way I went down and the fact that I went down so fast made me think that there was ice under the snow.

Q. But you can't say with any degree of certainty if it was a patch of ice that you slipped on, correct?

A. I did not see any ice, but I did see snow.

Q. Since you didn't see any ice, would you agree that any statement that you would have tripped on ice would be a guess on your part?

A. It would be a guess on my part."

¶ 7 Second, there was a three-foot-high mound of snow a few yards away from where Allen fell. Allen stated that the mound "easily could have" contributed to her fall: "[T]he weather the week prior [was] warm and then cold and then warm and then cold. So I could see the mounds thawing and then refreezing when it got cold." But she did not observe trailing water, or anything else, leading from the mound to the spot where she fell. Third, the snow in the parking lot was matted down, rather than fresh, which she believed made it more likely that someone would fall.

¶ 8 After Allen fell, she scooted on her backside back to her car, which was 20 to 30 feet away. The snow was compacted and slippery. She "assum[ed]" it was icy because she was able to maneuver across the surface. While scooting back to her car, she saw "slippery stuff" beneath the snow, which she later characterized as ice. But she reiterated that she did not see any ice at the spot where she fell. When Allen reached her car, she called for paramedics, and an ambulance came. The paramedics carried her on a stretcher to get her into the ambulance, which was difficult because they were "slipping" and "sliding."

¶ 9 Officer Anthony Nitti responded to the scene of Allen's accident at around 8:30 a.m. He observed ice throughout the parking lot, including areas of bumpy ice. Nitti had to be very careful and take small steps while crossing. He saw no unplowed snow in the lot. Although Nitti did not issue a citation to the owner of the parking lot, he believed that the slippery condition of the parking lot could be hazardous.

¶ 10 At the time of Allen's fall, Alliance had a lease agreement with Jazzercise providing that Alliance was "responsible for the removal of snow, ice and debris from the sidewalks, walkways, parking lot and other exterior areas of the Premises * * * on a timely basis."

¶ 11 Under Alliance's contract with ZL for snow removal, after any snowfall of two or more inches, ZL was required to plow the parking lot and remove snow from the adjacent walkways. The contract did not state that ZL had to remove ice or salt the parking lot; it only referenced "[s]now [p]lowing" and "snow removal." Nevertheless, Alex Zdanov, Alliance's managing member, understood that ZL would salt if necessary. Likewise, Alina Sandal, whose job it was to answer phone calls related to maintenance issues on the premises, thought ZL was salting throughout the snow plowing season. But Zenon Lopez, the owner of ZL, stated that Sandal told him not to salt the parking lot, a service for which ZL would have charged extra. In any case, it is undisputed that ZL did not salt the parking lot prior to Allen's accident.

¶ 12 Lopez performed all of ZL's snow removal services. When he plowed the Jazzercise parking lot, he typically pushed the snow to the east and south edges of the lot, creating mounds of snow. He did not use a dump truck to remove snow from the site. If Lopez plowed during the day when there were cars in the lot, he could not plow those areas. If there was a lot of snow, Lopez would plow around the cars, making a "path" or "trench" in which the cars could drive. Lopez would then return at night when the parking lot was empty to finish plowing.

¶ 13 Lopez could not independently recall the condition of the parking lot on February 8 through 10. Sometime in February after Allen's fall, a representative from Alliance called Lopez to tell him that there had been an accident in the parking lot and ask him to salt. Lopez salted the parking lot later that day. Alliance agreed to pay him an additional $150 per month for salting, and they paid him the full amount for February even though he started mid-month. An invoice from ZL reflects that in January, ZL charged Alliance $250 for snow plowing, while in February, ZL charged $250 plus $150 for salting.

¶ 14 Evidence was introduced about the weather and the condition of the parking lot on the days leading up to Allen's accident on February 10. In the early morning of Friday, February 8, there was a 4.3–inch snowfall. It was warm when the precipitation began but then dropped below freezing, resulting in layers of ice. There was no further precipitation on February 9 and 10.

¶ 15 Melissa Kompera, the franchise owner of the Glenview Jazzercise, arrived at the Jazzercise studio on the morning of February 8 after the storm. The parking lot had not been plowed. She called Sandal at the Alliance management office to complain, but the lot was still not plowed by that evening.

¶ 16 On the morning of Saturday, February 9, the parking lot had been plowed, but the plowing was "all choppy" from, Kompera assumed, the plow going around parked cars. "You had to climb through the parking lot," she said. "You had to find your footing between snow and ice." Kompera made a second complaint to the Alliance management office and was told that it would be taken care of.

¶ 17 That same morning, Shannon Connelly arrived to attend a 10:30 a.m. class at the studio. The parking lot was covered by a thick layer of ice with a layer of water on top of it. Connelly could not find a place to park that would enable her to walk safely to the Jazzercise building. She eventually parked down the street and used another entrance to the building.

¶ 18 Connelly was home by noon and did not return to the Jazzercise parking lot to determine whether any work was done to clear the ice. Kompera returned to the studio late that afternoon and found that the parking lot was "clear." All the uneven ice and snow had been removed, and there was no ice or snow at all on the parking spaces.

¶ 19 On Sunday, February 10, Kompera arrived at the Jazzercise studio late in the morning, after Allen's accident. The parking lot was completely clear of snow, although Kompera could not recall if there was ice. She also could not recall if the walkways adjacent to the parking spaces were clear of snow and ice.

¶ 20 Alliance and ZL moved for summary judgment, arguing that Allen could not prove negligence since she could not identify the cause of her fall. In particular, she could not state with certainty whether she fell on ice, and she did not see any standing or accumulated water on the day she fell. ZL also argued that there was no evidence that it breached its contract with Alliance since Alliance instructed ZL not to salt the lot and there was less than two inches of snow on the ground at the time of Allen's fall.

¶ 21 In response to defendants' motion for summary judgment, Allen argued that Alliance breached its contractual duty to its tenant to salt the parking lot and remove ice, while ZL breached its contractual duty to properly plow the lot, as evidenced by Kompera's testimony about the condition of the lot on February 8 and 9. Sh...