Anderson v. Davis Development Corp.

• Decision Date: 18 September 1968
• Docket Number: Gen. No. 67--97
• Parties: Ruth ANDERSON, Plaintiff-Appellant, v. DAVIS DEVELOPMENT CORP., an Illinois Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 222

241 N.E.2d 222

99 Ill.App.2d 55

Ruth ANDERSON, Plaintiff-Appellant, v. DAVIS DEVELOPMENT CORP., an Illinois Corporation, Defendant-Appellee.

Gen. No. 67--97.

Appellate Court of Illinois, Third District.

Sept. 18, 1968.

Herbert M. Spector, Peter Denger, Rock Island, for plaintiff-appellant.

John V. Patton, Moline, for defendant-appellee.

ALLOY, Presiding Justice.

Plaintiff Ruth Anderson, as shown by the complaint in this cause, was injured in a fall on ice on a parking lot of a shopping center owned by Davis Development Corp., defendant. Plaintiff filed a complaint for damages which was dismissed upon motion and leave granted to plaintiff to amend. An amended complaint was filed and it was likewise dismissed on motion. Plaintiff thereupon appealed to this Court and on appeal asserts that the trial court erred in dismissing the amended complaint.

The amended complaint alleges that on February 3, 1966, plaintiff, as a business invitee, was on the defendant's premises located in Moline, Illinois; that defendant, as the owner of the shopping center, undertook gratuitously to clear off ice and snow from the parking lot and had an obligation to clear the ice and snow in a reasonable and prudent manner. It was then alleged that defendant, or its agents or employees, 'were careless in the obligation which it had imposed upon it in gratuitously attempting to clear the premises of ice and snow and permitted dangerous amounts of ice and snow to remain upon the premises after several attempts to remove and clear the ice and snow'. It was also alleged that if the work had been performed in a reasonably prudent manner the ice and snow would have been removed and cleared and that it was possible to remove and clear the ice and snow so that no dangerous condition would remain. The trial court concluded that a cause of action had not been alleged and dismissed the complaint. The issue before us is whether the plaintiff had in fact stated a cause of action.

Under the precedents in this State, a plaintiff must allege facts in the complaint from which the law will raise a duty (Darling v. Charleston Memorial Hospital, 50 Ill.App.2d 253, 310, 200 N.E.2d 149, aff. 33 Ill.2d 326, 211 N.E.2d 253, 14 A.L.R.3d 860; Muhlbauer v. Kruzel, 39 Ill.2d 226, 234 N.E.2d 790). A failure to allege such facts justifies dismissal of the complaint on motion. The applicable rule in this State with reference to injuries resulting from falls on icy sidewalks is stated in Zide v. Jewel Tea Co., 39 Ill.App.2d 217, 222--223, 188 N.E.2d 383, 386, where the court states:

'A property owner is not liable for injury sustained by a business invitee in a fall on an icy sidewalk or parking lot maintained by the property owner for the use of its customers where the condition is a natural one and not caused or aggravated by the property owner. Kelly v. Huyvaert, 323 Ill.App. 643, 56 N.E.2d 638. However, a property owner may be liable for injury sustained by a business invitee who falls and is injured as a result of snow and ice which did not accumulate from natural causes, but as a result of the property owner doing something which causes an unnatural or artificial accumulation of the ice and snow. Fitz Simons v. National Tea Co., 29 Ill.App.2d 306, 173 N.E.2d 534.'

In the Zide case the court set aside a substantial verdict for the plaintiff for the reason that there was no evidence that the ice upon which plaintiff is alleged to have fallen was caused or aggravated by the defendant, Jewel Tea Company. This conclusion was consistent with the determination of the Court in Kelly v. Huyvaert, 323 Ill.App. 643, 56 N.E.2d 638, where the court indicated that in no case which came to the attention of the court, has a property owner been found liable where the icy condition had been general throughout the neighborhood and was not aggravated or caused in any way by the property owner, but where it resulted from a natural fall of snow, or a natural development of ice or snow.

In Riccitelli v. Sternfeld, 1 Ill.2d 133, 115 N.E.2d 288, defendant had removed snow from the sidewalk and as it melted it accumulated on the sidewalk and formed ice. The court held (at page 137, 115 N.E.2d 288) that this did not constitute negligence on the theory that the water which froze and produced the lump of ice on which plaintiff fell came from natural causes. The court observed that it could not be said to have arisen from anything defendant did other than moving the snow obstructing his driveway and making a path on the sidewalk for...