Chisolm v. Stephens

• Decision Date: 30 March 1977
• Docket Number: No. 76-57,76-57
• Citation: 365 N.E.2d 80,7 Ill.Dec. 795,47 Ill.App.3d 999
• Parties: , 7 Ill.Dec. 795 Willa B. CHISOLM, Plaintiff-Appellant, v. Clarence STEPHENS, Jr. and Thomasina Stephens, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 80

365 N.E.2d 80

47 Ill.App.3d 999, 7 Ill.Dec. 795

Willa B. CHISOLM, Plaintiff-Appellant, v. Clarence STEPHENS, Jr. and Thomasina Stephens, Defendants-Appellees.

No. 76-57.

Appellate Court of Illinois, First District, Third Division.

March 30, 1977.

Rehearing Denied May 4, 1977.

Raymond P. Concannon, Miller & Concannon, Chicago, for plaintiff-appellant.

Baker & McKenzie, Chicago (Francis D. Morrissey, Michael K. Murtaugh and Norman J. Barry, Jr., Chicago, of counsel), for defendants-appellees.

MEJDA, Justice.

Plaintiff, Willa B. Chisolm, brought action against defendants, Clarence Stephens, Jr. and Thomasina Stephens, for injuries sustained in a fall on the sidewalk of defendants' premises where plaintiff resided. Plaintiff's complaint alleged that defendants caused plaintiff's injuries by failing to remove ice and snow, alleging negligence in Count I and wilful and wanton misconduct in Count II. Defendants' motion for summary judgment was denied without prejudice in the motion court and the cause was assigned for trial. Prior to trial, the trial court granted defendants' renewed motion for summary judgment from which judgment plaintiff appeals.

Plaintiff on appeal contends that: (1) the trial court erred in granting summary judgment in favor of defendants; and (2) defendants' conduct for 15 years in regularly clearing the ice and snow from the walkway established a continuing duty or an implied agreement to clean the natural accumulation of ice from the walkway. We affirm.

The instant case involves a natural accumulation of ice and snow. The pertinent facts are set forth in the pleadings, depositions and exhibits presented to support and oppose defendants' motion for summary judgment.

Plaintiff's deposition and affidavit state that defendant Thomasina is her sister and that defendant Clarence is Thomasina's husband and her brother-in-law. Plaintiff has been living for 15 years in defendants' residence at 8626 South Michigan Avenue, Chicago, along with her mother, Claudia Thomas, and a niece Gail Bennett. She paid rent of $50 per month under an oral agreement. On February 22, 1971, at 8 a. m. she left the house for work accompanied by her niece. As she left, she noticed it was sleeting and snowing. After proceeding three or four steps down the walk, she slipped and fell, fracturing her left wrist. The sidewalk was a sheet of ice. Prior to leaving, she had not discussed the condition of the walk with either defendant. There was no indication that anyone attempted to clear or salt the walk. Plaintiff relied on Clarence to examine and clear the walk so that it would be safe when she left for work.

The affidavit of Gail Bennett added that she and plaintiff were the first to leave the house that morning.

The affidavit of Claudia Thomas stated that during the 15 years she lived with defendants Clarence would clear the walks in the winter months before the others in the house went to work. All members of the household relied on Clarence to examine and clear the walks in the morning of any ice and snow.

Defendant Clarence Stephens in his affidavit and deposition stated that when he returned home the previous evening between 11:30 p. m. and midnight, the walk was clear. During the early hours of February 22 an icy rain fell. Clarence did the outside work and if needed would clear the sidewalk of snow and ice each morning even if he had to be late for work. He had no need for a system of communication with the ladies in the house regarding the condition of the walk each morning since he "always kept it clean." He was unaware of what plaintiff paid for residing with them; such arrangements were taken care of by his wife. On the morning of the accident he glanced out of the window and the sidewalk just looked wet and damp. Upon examination after the fall the entire landscape was glazed and frozen over.

Defendant Thomasina Stephens in a deposition and affidavit stated plaintiff paid $50 per month plus a portion of the utilities "merely" for a room in the house. Plaintiff and the others had a separate agreement with her mother who was paid by each of them for her services in shopping for groceries and preparing meals. Clarence always took care of cleaning the sidewalks of ice and snow. The icy condition of February 22 must have developed during the morning hours because the walk was clear and dry the night before when defendants went to bed.

Plaintiff contends that the trial court erred in granting defendants' motion for summary judgment since the question of whether defendants breached this continuing legal duty is one which should be submitted for the trier of fact to decide.

Section 57(3) of the Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 57(3)) provides that summary judgment is appropriate " * * * if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law." Thus, summary judgment is proper when the issue is determinable solely as a question of law. (Sidwell v. Sidwell (1975), 28 Ill.App.3d 580, 328 N.E.2d 595; Applicolor, Inc. v. Surface Combustion Corp. (1966), 77 Ill.App.2d 260, 222 N.E.2d 168.) In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions and affidavits included therein most strictly against the moving party and most liberally in favor of the opponent. (Baier v. State Farm Ins. Co. (1975), 28 Ill.App.3d 917, 329 N.E.2d 543; Cronin v. Delta Air Lines, Inc. (1974), 19 Ill.App.3d 1073, 313 N.E.2d 245.) While plaintiff need not prove her case at this preliminary stage, she is required to present some factual basis that would arguably entitle her to a judgment under the applicable law. Gehrman v. Zajac (1975), 34 Ill.App.3d 164, 340 N.E.2d 184.

It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill.2d 95, 306 N.E.2d 39; Barnes v. Washington (1973), 56 Ill.2d 22, 305 N.E.2d 535.) Similarly, in order to state a cause of action for wilful and wanton misconduct, facts must first be alleged from which the law would raise a duty to act. (Clay v. Chicago Bd. of Educ. (1974), 22 Ill.App.3d 437, 318 N.E.2d 153.) The existence of such a legal duty is a question of law to be determined by the trial court. (Mieher v. Brown (1973), 54 Ill.2d 539, 301 N.E.2d 307; Clinton v. Commonwealth Edison Co. (1976), 36 Ill.App.3d 1064, 344 N.E.2d 509.) In the absence of any showing upon which the court could infer the existence of a duty, no recovery would be possible as a matter of law and summary judgment in favor of defendant would be proper. Therefore, plaintiff must affirmatively show that defendants owed her a legal duty to clear the sidewalk of the ice which had accumulated during the morning hours of February 22, 1971.

Plaintiff does not contest the general rule that, in the absence of a special agreement, a landlord owes no duty to his tenants to remove natural accumulations of ice and snow from common areas which remain under his control. (Gehrman v. Zajac; Fitz Simons v. Nat'l Tea Co. (1961), 29 Ill.App.2d 306, 173 N.E.2d 534; Cronin v. Brownlie (1952), 348 Ill.App. 448, 109 N.E.2d 352.) Plaintiff does contend, however, that the instant case represents an exception to the general rule in that Clarence's conduct over 15 years in examining and cleaning the sidewalk of ice and snow created a legal duty for defendants to so act on every occasion thereafter.

Initially, plaintiff argues that a covenant to clear the walks can be implied as a part of her oral rental agreement. Since a landlord ordinarily has no duty to remove natural accumulations of ice and snow, any agreement varying this duty on his part, whether express or implied, must be supported by consideration. (Cf. Moldenhauer v. Krynski (1965), 62 Ill.App.2d 382, 210 N.E.2d 809; Harlow v. Kulik (1912), 169 Ill.App. 624.) Any new promise made by the landlord after the original leasing not supported by new consideration would be mere nudum pactum and no liability would result from the landlord's failure to fulfill such promise. See Yuan Kane Ing v. Levy (1975), 26 Ill.App.3d 889, 326 N.E.2d 51; Forshey v. Johnston (1971), 132 Ill.App.2d 1106, 271 N.E.2d 81.

In the instant case there was admittedly no express covenant relative to the alleged duty in the original rental agreement. Plaintiff's rental remained $50 per month throughout the 15-year period. Neither was there any new or other consideration from plaintiff to support a promise of additional duties or covenants assumed by defendants. Plaintiff never specifically discussed with defendants any undertaking to clean the walks. The only reference to the scope of the rental agreement was defendant Thomasina's statement that the $50 payment was merely in return for the right to live in a room in the house. It did not include meals for which separate provisions were made with her mother, Claudia Thomas. The right which plaintiff asserts was not created by the initial rental agreement which was neither superseded, altered or modified by any subsequent agreement based upon a legal consideration.

However, plaintiff further argues that even if gratuitous, defendant Clarence's performance over the past 15 years and plaintiff's reliance thereon are sufficient to raise a legal duty to examine and clean the sidewalk each morning before the occupants left for work. Plaintiff cites Nelson v. Union Wire Rope Corp. (1964), 31 Ill.2d 69, 199 N.E.2d 769, which is inapposite. There the defendant insurance company undertook to perform safety inspections of the equipment and practices of its insured. The charge was misfeasance and not non-feasance. "Defendant was not charged with liability for omitting to perform an undertaking which plaintiffs...