Kasper v. Mcgill Mgmt. Inc.

• Decision Date: 23 May 2019
• Docket Number: No. 1-18-1204,1-18-1204
• Citation: 2019 IL App (1st) 181204,130 N.E.3d 15,432 Ill.Dec. 764
• Parties: Gordon KASPER, Plaintiff-Appellant, v. MCGILL MANAGEMENT INC., an Illinois Corporation, and Woodstone Townhome Homeowner's Association, an Illinois Not-for-Profit Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 181204
130 N.E.3d 15
432 Ill.Dec. 764

Gordon KASPER, Plaintiff-Appellant,
v.
MCGILL MANAGEMENT INC., an Illinois Corporation, and Woodstone Townhome Homeowner's Association, an Illinois Not-for-Profit Corporation, Defendants-Appellees.

No. 1-18-1204

Appellate Court of Illinois, First District, FOURTH DIVISION.

May 23, 2019

Alvin W. Block, Jerome E. Boyle, and Rebecca R. Trayber, of Alvin W. Block & Associates, of Chicago, for appellant.

Matthew D. Patterson and Gregory B. Bolduc, of Morse Bolduc & Nardulli, LLC, of Chicago, for appellee McGill Management Inc.

James R. Branit and Scott D. Stephenson, of Litchfield Cavo LLP, of Chicago, for other appellee.

PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion.

432 Ill.Dec. 766

¶ 1 Plaintiff, Gordon Kasper, filed a complaint, alleging that he slipped on ice on a sidewalk outside his townhome on December 26, 2013. Plaintiff sought damages from his homeowner's association, Woodstone Townhome Homeowner's Association (Woodstone), and the snow removal contractor, McGill Management Inc. (McGill) (collectively, defendants). In this court, plaintiff appeals an order granting summary judgment to defendants.

¶ 2 In plaintiff's December 22, 2015, complaint, he alleged that he was walking on the sidewalk to retrieve mail from his mailbox near 230 Woodstone Circle, when he fell to the ground. Plaintiff alleged that McGill had a duty to maintain the "side walks [sic ] and walkways, entrances and exists [sic ], in a reasonably safe condition." He further alleged that McGill disregarded that duty, and instead "permitted the unnatural accumulation of ice and snow to evolve, and * * * failed to properly maintain, clean, remove, and clear the aforementioned sidewalks, walkways, and entrances and exists [sic ]," allowing them to "become dangerously slippery and unsafe for use."

¶ 3 Regarding defendant Woodstone, plaintiff alleged that it "had a duty to

432 Ill.Dec. 767

130 N.E.3d 18

operate, manage, maintain and oversee, among other things, the maintenance of the common areas of the subject premises, which included removal of snow and ice." Plaintiff alleged that Woodstone disregarded this duty and "failed to oversee" McGill's maintenance, "which was performed in such a manner as to permit the areas to * * * evolve into slip hazards" with "the unnatural accumulation of ice and snow."

¶ 4 In plaintiff's deposition, he testified that he resided in a townhome in Buffalo Grove. On December 26, 2013, plaintiff returned home from work, parked his vehicle in his driveway, and walked on a sidewalk toward a set of mailboxes to collect his mail. On his way to the mailboxes, plaintiff fell to the ground. As he lay on the ground, plaintiff realized that he fell on ice because he could feel the ice with his hands. There was a thin, less than one inch deep, layer of powdered snow covering the ice.

¶ 5 Plaintiff remembered that it had snowed the evening before his fall, but he did not know how much accumulation there had been. He did not know if it had snowed on the day of his fall, because he had been at work downtown during the day.

¶ 6 Plaintiff did not see any defects in the sidewalk. Plaintiff had previously noticed that there was a downspout near the garages on the building at 230 Woodstone, where water would run off the downspout, across a concrete slab, and onto the lawn and sidewalk. He had seen that occur in the summertime. He did not recall if he ever mentioned it to defendants. At the time of his fall, plaintiff did not see water running from the downspout to the sidewalk. After he fell, plaintiff used his cell phone to call his neighbor, Peggy Corey, for help.

¶ 7 In Corey's deposition, she testified that after receiving a phone call from plaintiff, she went outside and saw plaintiff on his hands and knees. He said to Corey that his "leg let go" and he fell on his side. Corey dialed 911, and an ambulance came to take plaintiff to the hospital. Corey testified that, at the time of plaintiff's accident, it was very cold. Corey saw snow on the grass, but did not see any snow or ice on the sidewalk where plaintiff fell.

¶ 8 Corey testified that she was on the homeowner's association board of Woodstone. At the time of her deposition, she was the president of the association, and she had been a board member since 2011 or 2012. The board had not received any prior complaints regarding the downspouts, and no one had brought up any issues involving snow and ice. She was unaware of any other claims regarding snow and ice, or any other slip-and-fall injuries at the Woodstone property. Plaintiff knew that Corey was a board member. Corey and plaintiff spoke occasionally, but he never mentioned any issue about the downspout. Corey stated that her building had the same downspout as the one referenced by plaintiff, and she had never noticed any defects or problems with the way the water flowed out of the downspout.

¶ 9 Woodstone contracted with McGill to provide certain snow removal services. The contract between Woodstone and McGill provided that McGill would provide snow plowing services to certain areas, including "all approach sidewalks," after snowfalls of two inches or more. Woodstone and McGill explicitly recognized that some ice and snow would remain on the ground after plowing, and "[u]pon [Woodstone]'s request," McGill would provide salt for the sidewalks, driveways and streets, at an extra cost." Another provision of the contract provided that "[a]ll fire hydrants and mailboxes will be kept accessible at all

432 Ill.Dec. 768

130 N.E.3d 19

times as part of the contract." Corey confirmed that McGill would clear snow only when there had been a snowfall of two inches or more, and that Woodstone had never requested that McGill spread salt. She further stated that specifically, on the day of, and in the days prior to, plaintiff's fall, there had been no snowfall of more than two inches that would have caused McGill to engage in snow removal efforts, and Woodstone did not request that McGill spread salt.

¶ 10 Weather reports of conditions at Chicago Executive Airport, approximately five miles from Woodstone, indicated that there was "light snow" the day before plaintiff's fall, on December 25, 2013, between 4:52 a.m. and 6 a.m., and between 3:52 p.m. and 8:52 p.m., with "0.00 in." of accumulation. There was also "light snow" recorded on December 26, 2013, between 10:52 a.m. and 11:52 a.m., also with "0.00 in." of accumulation.

¶ 11 On November 29, 2017, McGill moved for summary judgment. McGill argued that there was no evidence that the snow and ice accumulation was unnatural, and that "under the natural accumulation rule in Illinois[,] property owners and business operators bear no liability for slip and fall accidents caused by a natural accumulation of ice." Although plaintiff "believed" that he slipped on ice coming from a nearby downspout, McGill asserted that plaintiff's belief was merely speculative and that liability cannot be based upon mere speculation. McGill also contended that it was protected under the Snow and Ice Removal Act (Act) ( 745 ILCS 75/0.01 et seq. (West 2012)), and that there was no evidence to suggest that the snow or ice on which plaintiff slipped was caused by any act by McGill or that the ice was created by any snow or ice removal operations.

¶ 12 The next day, November 30, 2017, Woodstone also moved for summary judgment. Woodstone asserted that there was no evidence showing that there was an unnatural accumulation of snow or ice that injured plaintiff and that Woodstone did not owe a duty to remove natural accumulations. Woodstone noted that there was "nothing beyond mere speculation to suggest that the ice plaintiff fell on was the direct result of a design defect with a downspout on a neighboring house." Woodstone further asserted that it never had any notice of water or ice pooling on the sidewalk where plaintiff fell.

¶ 13 On December 29, 2017, plaintiff filed a combined response to both motions for summary judgment. Plaintiff stated that he was

"not suing for a natural accumulation of snow and ice. He's suing because the defective design of the drainage system at this residential subdivision creates an unnatural accumulation of ice on a sidewalk used by residents and other pedestrians, at a specific location where residents' attention is drawn to a mailbox in the parkway and away from the sidewalk." (Emphasis in original.)

Plaintiff maintained that the case was controlled by Murphy-Hylton v. Lieberman Management Services, Inc. , 2016 IL 120394, 410 Ill.Dec. 937, 72 N.E.3d 323, in which the supreme court reversed a summary judgment order based on evidence of a defective condition leading to the formation of ice on which the plaintiff in that case slipped.

¶ 14 On February 2, 2018, the matter came before the court for a ruling on the two motions for summary judgment. The court initially addressed the applicable standards, noting that a plaintiff "in a slip and fall case involving snow and ice * * * has to show that the accumulation of snow and ice was unnatural and that the property owner had...