Eichler v. Plitt Theatres, Inc.

• Decision Date: 28 March 1988
• Docket Number: No. 2-87-0591,2-87-0591
• Citation: 118 Ill.Dec. 503,167 Ill.App.3d 685,521 N.E.2d 1196
• Parties: , 118 Ill.Dec. 503 Marianne EICHLER et al., Plaintiffs-Appellants, v. PLITT THEATRES, INC., et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1196

521 N.E.2d 1196

167 Ill.App.3d 685, 118 Ill.Dec. 503

Marianne EICHLER et al., Plaintiffs-Appellants, v. PLITT THEATRES, INC., et al., Defendants-Appellees.

No. 2-87-0591.

Appellate Court of Illinois Second District.

March 28, 1988.

Paul G. Krentz, Murphy, Hupp, Foote, Mielke & Kinnally, Aurora, for Fred and Marianne Eichler.

Alfred Y. Kirkland, Jr., Brady, McQueen, Martin, Collins & Jensen, Elgin, for Plitt Theatres, Inc.

Donald Eugene Green, Bullaro & Carton, Chicago, for Urban/JMB Group Trust II Partnership, and Alan Hausky & Associates, Ltd.

Jon Yambert, Lindner, Speers & Reuland, P.C., Aurora, for Welhausen Landscape Co. Inc. Justice INGLIS delivered the opinion of the court:

Plaintiff Marianne Eichler brought suit for damages sustained due to injuries received when she slipped and fell on snow and ice. Her husband, Fred Eichler, brought suit for loss of consortium. The trial court entered summary judgments in favor of defendants on plaintiffs' fifth amended complaint. We reverse in part and affirm in part.

The facts of this case are not in dispute. On January 26, 1985, plaintiffs went to the Fox Valley Shopping Center to see a movie at the Plitt Movie Theatres. On that evening, the parking lot where plaintiffs parked was covered with ice. As plaintiffs were walking across what is known as the "North Parking Parcel," Marianne Eichler slipped and fell on the ice and as a result sustained personal injuries. Plaintiffs concede that there was no unnatural accumulation of snow or ice at the time of the fall.

At the time of the fall, defendant Urban/JMB Group Trust II Partnership (Urban) was the beneficial owner of La Salle National Bank trusts Nos. 47699 (Urban trust I) and 52471 (Urban trust II). Defendant Allen Hutensky Associates (Hutensky) was the beneficial owner of La Salle National Bank trust No. 101293 (Hutensky trust). (We note that Hutensky was incorrectly sued as "Alan Hausky & Associates.") The above-mentioned trusts were the owners of several contiguous parcels of land at the Fox Valley Shopping Center which were used for parking. The "North Parking Parcel" in which Marianne Eichler fell was owned by Urban trust II. The Urban trusts entered into an easement agreement (easement agreement) with the Hutensky trust concerning their various rights with regard to these parcels of land. The agreement provided in pertinent part:

"Each party agrees that its obligation to maintain the Parking Facilities on its Parcel or Parcels * * * shall consist of repairing, maintaining and reconstructing the Parking Facilities so as to keep same in a clean, sightly and safe condition consistent with and similar to the Fox Valley Shopping Center Parking Facilities and shall include, but not be limited to, the prompt removal of all paper, debris, refuse, snow and ice * * *."

The easement agreement also provided:

"The parties agree and acknowledge that their respective rights under this Agreement are not subject to satisfaction by monetary damages, and thereby agree that specific performance by way of injunctive relief is the only method of securing such rights under this Agreement * * *."

Shortly after the easement agreement was entered into, a lease agreement, which was in effect at the time of the fall, was entered into between Urban trust II and defendant Plitt Theatres, Inc. (Plitt). The lease agreement provided that Urban trust II granted and Plitt accepted Urban trust II's rights and obligations under the easement agreement.

Also at the time of the fall, defendant Welhausen Landscape Company (Welhausen) had contracted with Urban to perform snow plowing and snow removal (Welhausen agreement).

The general rule, which plaintiffs do not dispute, is that there is no duty to remove natural accumulations of snow and ice. Galivan v. Lincolnshire Inn (1986), 147 Ill.App.3d 228, 229, 101 Ill.Dec. 18, 497 N.E.2d 1331; Bakeman v. Sears, Roebuck & Co. (1974), 16 Ill.App.3d 1065, 1068, 307 N.E.2d 449.

Plaintiffs, however, contend that while there is no common law duty to remove snow and ice, such a duty existed in the present case because defendants entered into a contract in which they undertook the obligation of removing snow and ice. Plaintiffs thus argue that defendants are liable in tort for a duty they have assumed in contract and that summary judgment for defendants was therefore inappropriate. Defendants, on the other hand, contend that summary judgment in their favor was appropriate. Defendants argue that the easement agreement created no duty in tort to remove all snow and ice, and that even if such a duty was created, plaintiffs are limited from recovering money damages because the easement agreement specifically precluded monetary damages and limited the parties' remedies to seeking an injunction. Welhausen additionally argues that summary judgment was appropriate to it because it contracted only to remove snow, not ice. We agree that summary judgment was inappropriate as to Plitt and Urban, but find that it was appropriate as to Hutensky and Welhausen.

In both Schoondyke v. Heil, Heil, Smart & Golee, Inc. (1980), 89 Ill.App.3d 640, 44 Ill.Dec. 802, 411 N.E.2d 1168, and Tressler v. Winfield Village Cooperative, Inc. (1985), 134 Ill.App.3d 578, 89 Ill.Dec. 723, 481 N.E.2d 75, it was held that a duty in tort arose from a contractual obligation to remove snow. However, more recently in Burke v. City of Chicago (1987), 160 Ill.App.3d 953, 112 Ill.Dec. 375, 513 N.E.2d 984, the Appellate Court for the First District upheld a summary judgment in favor of all defendants involved in a slip and fall case where there was a contract to remove snow.

In Burke, defendant, City of Chicago (Chicago), leased certain portions of Midway Airport to Northwest Airlines. Under their lease agreement, Chicago agreed to " 'keep the Airport free from obstruction, including the removal of snow * * * as reasonably as may be done * * *.' " (160 Ill.App.3d at 955, 112 Ill.Dec. 375, 513 N.E.2d 984.) Chicago contracted with McKay and Beemsterboor for snow removal at the airport. 160 Ill.App.3d at 955, 112 Ill.Dec. 375, 513 N.E.2d 984.

On the day which the plaintiff in Burke fell, snow had fallen in excess of two inches. (160 Ill.App.3d at 955, 112 Ill.Dec. 375, 513 N.E.2d 984.) Prior to the plaintiff's fall, snow removal equipment had plowed the area on which the plaintiff fell, and no more snow had fallen since that time. (160 Ill.App.3d at 955, 112 Ill.Dec. 375, 513 N.E.2d 984.) However, what remained after the plowing had turned to ice. (160 Ill.App.3d at 955, 112 Ill.Dec. 375, 513 N.E.2d 984.) It was further shown that Chicago had previously spread sand and urea after snowplowing even though there was no contractual obligation to do so. 160 Ill.App.3d at 955, 112 Ill.Dec. 375, 513 N.E.2d 984.

The court found that even under Schoondyke and Tressler summary judgment in favor of defendants was appropriate. (160 Ill.App.3d at 957, 112 Ill.Dec. 375, 513 N.E.2d 984.) The court distinguished Schoondyke and Tressler from the facts with which it was presented, noting that no plowing had occurred in either of those cases. (160 Ill.App.3d at 957, 112 Ill.Dec. 375, 513 N.E.2d 984.) Because there had been plowing in Burke, the court found that such plowing would have to be shown to have been defective in order to show a breach of duty. (160 Ill.App.3d at 957, 112 Ill.Dec. 375, 513 N.E.2d 984.) The court further found that to find defective plowing, it would have to conclude that Chicago had a duty to remove all snow. (160 Ill.App.3d at 957, 112 Ill.Dec. 375, 513 N.E.2d 984.) The court found that such a duty had not been assumed as the lease provided for the removal of snow " 'as reasonably may be done.' " 160 Ill.App.3d at 957, 112 Ill.Dec. 375, 513 N.E.2d 984.

The court also found that Chicago had not breached a duty to throw salt or urea. The court reasoned that in the past Chicago had done this as a gratuitous undertaking and that such did not create a continuing duty to perform the function. 160 Ill.App.3d at 957, 112 Ill.Dec. 375, 513 N.E.2d 984.

We find that the holdings of Schoondyke and Tressler are not diminished by Burke due to the fact that the Burke court distinguished those two cases on the facts with which it was presented.

We further find our supreme court's opinions in Pippin v. Chicago Housing Authority (1979), 78 Ill.2d 204, 35 Ill.Dec. 530, 399 N.E.2d 596, and Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill.2d 378, 98 Ill.Dec. 1, 493 N.E.2d 1022, to be controlling in this case.

In Pippin, plaintiff brought an action against the Chicago Housing Authority (Authority) and Interstate Service Corporation (Interstate) for the wrongful death of her son, Fredrick Pippin. ( Pippin, 78 Ill.2d at 206, 35 Ill.Dec. 530, 399 N.E.2d 596.) Fredrick Pippin, while in the lobby of a housing project owned by the Authority, was stabbed during the course of an argument. (78 Ill.2d 206-07, 35 Ill.Dec. 530, 399 N.E.2d 596.) The stabbing occurred in front of two security guards who were employed by Interstate. 78 Ill.2d at 206, 35 Ill.Dec. 530, 399 N.E.2d 596.

At the time of the stabbing a contract existed between the Authority and Interstate whereby Interstate was to provide armed guards and other protective services for the purpose of guarding the Authority's property and persons thereon. (78 Ill.2d at 207, 35 Ill.Dec. 530, 399 N.E.2d 596.) With respect to Interstate's liability, the court found section 324 A of the Restatement (Second) of Torts to be applicable. (78 Ill.2d at 210, 35 Ill.Dec. 530, 399 N.E.2d 596.) That section states:

"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care...