Harkins v. System Parking, Inc.

• Decision Date: 28 July 1989
• Docket Number: No. 1-88-3141,1-88-3141
• Citation: 186 Ill.App.3d 869,134 Ill.Dec. 575,542 N.E.2d 921
• Parties: , 134 Ill.Dec. 575 Elsie HARKINS, Plaintiff-Appellant, v. SYSTEM PARKING, INC., d/b/a Systems Auto Park, Inc., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 921

542 N.E.2d 921

186 Ill.App.3d 869, 134 Ill.Dec. 575

Elsie HARKINS, Plaintiff-Appellant, v. SYSTEM PARKING, INC., d/b/a Systems Auto Park, Inc. Defendant-Appellee.

No. 1-88-3141.

Appellate Court of Illinois First District, Sixth Division.

July 28, 1989.

John Thomas Moran, Chicago, for plaintiff-appellant.

Baker & McKenzie, Chicago (Francis D. Morrissey, Paul B. O'Flaherty, Jr. and Mary K. McMahon Dudley, of counsel), for defendant-appellee.

Justice McNAMARA delivered the opinion of the court:

Plaintiff, Elsie Harkins, appeals from an order entering summary judgment in favor of defendant, Systems Parking, Inc. d/b/a Systems Auto Park, Inc., in this negligence case.

The complaint alleges that on February 3, 1982, while walking across defendant's parking lot, plaintiff fell on snow and ice and broke her hip. Plaintiff alleges that defendant negligently and knowingly left the premises in a defective and dangerous condition.

Defendant filed a motion for summary judgment on the ground that plaintiff was a trespasser who fell on a natural accumulation of snow and ice and thus it owed no duty to her.

Thereafter, plaintiff filed an amended complaint. She set forth defendant's willful and wanton acts of misconduct and failure to warn plaintiff that the premises were in an unsafe condition concealed by snow and ice which was an unnatural accumulation.

Defendant filed another motion for summary judgment on the ground that plaintiff was a trespasser, or at best a licensee, and that defendant's alleged wrongful conduct could not be characterized as willful and wanton.

On October 5, 1987, the court entered summary judgment for defendant, but granted plaintiff's request for leave to file a second amended complaint and affidavit. Plaintiff's affidavit states that she worked at the Bismark Hotel in Chicago and that every day, along with many other people, she walked across defendant's parking lot to reach the hotel. Two days prior to her fall, there was an unnatural accumulation of ice and she saw defendant's employee spreading salt across the parking lot. On February 3, 1982, it was snowing slightly. On the previous day, "cars which had been parked on the parking lot by the parking attendant caused tire ruts [to be formed] in the ice which was melted by the salt and covered by the snow that had accumulated on the ground." Plaintiff "fell on one of the tire ruts which was caused by the salt which had previously melted the ice which had re-formed into a rut and covered by snow."

The second amended complaint alleged negligence in spreading salt, "said salt causing a natural accumulation of ice to become unnatural," and failure to remove the melted ice. Plaintiff alleged she was a "permissive user" on the premises. No allegations regarding willful and wanton misconduct were included, or incorporated from previous complaints.

On September 22, 1988, the court granted defendant's renewed motion for summary judgment. At the hearing, the court stated that under the undisputed facts, there was no evidence of aggravation of a natural condition other than the spreading of salt, which was not a basis for liability. Plaintiff had failed to come forward with evidence to show the ice and snow were unnatural. The court added that, although not pled, one might argue that defendant had a duty to warn of ruts, but that there could be no liability on such a theory because defendant owed no corresponding duty to protect plaintiff from the underlying condition. Plaintiff appeals.

Summary judgment is proper where the pleadings, depositions, affidavits and other documents show there is no genuine issue of material fact remaining and the movant is entitled to judgment as a matter of law. Gilberg v. Toys "R" Us, Inc. (1984), 126 Ill.App.3d 554, 81 Ill.Dec. 825, 467 N.E.2d 947; Erasmus v. Chicago Housing Authority (1980), 86 Ill.App.3d 142, 41 Ill.Dec. 533, 407 N.E.2d 1031.

Plaintiff maintains that she was a licensee on defendant's property, and defendant counters that she was a trespasser. To a trespasser or a licensee, a property owner owes only the duty not to willfully and wantonly injure that person. (Mentesana v. LaFranco (1979), 73 Ill.App.3d 204, 29 Ill.Dec. 153, 391 N.E.2d 416.) We note that the Premises Liability Act (Ill.Rev.Stat.1985, ch. 80, par 301 et seq.) is not applicable here. (See Lorek v. Hollenkamp (1986), 144 Ill.App.3d 1100, 99 Ill.Dec. 232, 495 N.E.2d 679).) Plaintiff in her second amended complaint fails to allege any willful and wanton misconduct, and only alleges mere negligence. (See Mentesana v. LaFranco.) We will not consider allegations contained in the prior, abandoned complaint. (See Cipolla v. Bloom Township High School Dist. No. 206 (1979), 69 Ill.App.3d 434, 26 Ill.Dec. 407, 388 N.E.2d 31.) Absent these allegations, plaintiff cannot recover.

Even if willful and wanton misconduct were sufficiently pleaded, plaintiff has failed to allege sufficient facts to recover. Plaintiff contends defendant's negligence is a disputed, material issue of fact because after defendant salted the parking lot, ice melted and ruts were made by vehicles, the ruts froze, and new snow concealed the ruts and ice.

A property owner has no duty, and is not liable for injuries caused by, a natural accumulation of snow and ice. (Galivan v. Lincolnshire Inn (1986), 147 Ill.App.3d 228, 101 Ill.Dec. 18, 497 N.E.2d 1331; Erasmus v. Chicago Housing Authority.) However, a property owner does owe a duty and may be liable where the injuries are caused by an unnatural accumulation of ice and snow or the owner aggravates a natural condition. (Galivan v. Lincolnshire Inn.) To withstand a motion for summary judgment, plaintiff must allege facts sufficient to permit a trier of fact to find there was an unnatural accumulation of ice and snow for which defendant was responsible. Galivan v. Lincolnshire Inn; Erasmus v. Chicago Housing Authority; Gehrman v. Zajac (1975), 34 Ill.App.3d 164, 340 N.E.2d 184.

Plaintiff points to the ruts made by vehicles. Ruts and uneven surfaces created by traffic in snow and ice are not considered unnatural and...