Murphy-Hylton v. Lieberman Mgmt. Servs., Inc.

• Decision Date: 01 December 2016
• Docket Number: No. 120394.,120394.
• Citation: 2016 IL 120394,72 N.E.3d 323
• Parties: Pamela MURPHY–HYLTON, Appellee, v. LIEBERMAN MANAGEMENT SERVICES, INC., et al., Appellants.
• Court: Illinois Supreme Court

2016 IL 120394

72 N.E.3d 323

Pamela MURPHY–HYLTON, Appellee,

v.LIEBERMAN MANAGEMENT SERVICES, INC., et al., Appellants.

No. 120394.

Supreme Court of Illinois.

Dec. 1, 2016.

Richard J. Turiello, of Grant & Fanning, of Chicago, for appellants.

Law Office of Michael W. Rathsack, of Chicago (Timothy J. Ashe, Kristina K. Green, and Michael W. Rathsack, of counsel), for appellee.

Christopher D. Willis, of Busse, Busse & GrassZ, P.C., of Chicago, for amicus curiae Illinois Association of Defense Trial Counsel.

Michael M. Viglione, of Ryan, Ryan & Landa, of Waukegan, for amicus curiae Illinois Trial Lawyers Association.

OPINION

Justice THEIS delivered the judgment of the court, with opinion.

¶ 1 The question presented in this appeal involves the scope of the immunity provided under the Snow and Ice Removal Act (Act) (745 ILCS 75/0.01et seq. (West 2010)). Plaintiff, Pamela Murphy–Hylton, slipped while walking on the sidewalk outside her condominium, sustaining personal injuries. She brought a negligence action in the circuit court of Cook County against defendants, Lieberman Management Services, Inc. (Lieberman), and Klein Creek Condominium (Klein Creek), alleging that a defective condition and negligent maintenance of the premises created an unnatural accumulation of ice, which caused her fall. The trial court granted defendants' motion for summary judgment, finding that the Act provided immunity to defendants The appellate court reversed and remanded, ruling that the immunity under the Act did not bar plaintiff's cause of action. 2015 IL App (1st) 142804, ¶¶ 41, 47, 399 Ill.Dec. 768, 47 N.E.3d 273. For the reasons that follow, we affirm the appellate court.

¶ 2 BACKGROUND

¶ 3 Plaintiff was an owner and resident of a condominium unit at the Klein Creek Condominium complex in the Village of Carol Stream, Illinois. The common elements of the property were owned and controlled by defendant, Klein Creek. The Klein Creek Condominium Association retained defendant, Lieberman Management Services, Inc., to manage the property.

¶ 4 In early February 2011, a large snowstorm hit Carol Stream, producing snowfall in excess of 20 inches. On February 7, 2011, the snow removal and landscaping service hired by the association cleared snow and ice from the sidewalks of the complex. Eleven days later, on the morning of February 18, 2011, plaintiff left her condominium unit and was walking on the sidewalk behind the building on her way to the adjacent parking lot. As she was walking, she slipped and fell, suffering a fracture to her leg

, knee, and hip. She filed suit, claiming that she fell on an unnatural accumulation of ice on the sidewalk. In her fourth amended complaint, she alleged, inter alia, that defendants were negligent in failing to properly direct the drainage of water and melted snow on the premises, failing to repair defective sidewalks, and failing to repair downspouts to prevent an unnatural accumulation of ice on the sidewalk. She additionally alleged that defendants failed to comply with various local building construction and maintenance codes.

¶ 5 During discovery, plaintiff testified that the weather on the morning she fell was cold and sunny with no precipitation. She estimated the temperature was in the twenties. There had been no precipitation since the last snowfall in early February. When she first stepped outside, the sidewalks appeared clear, and she did not see any ice prior to her fall. She noticed the patch of ice after she fell, which she described as about the size of a letter-sized piece of paper. She believed that the ice that caused her fall resulted from water that had accumulated on either side of the sidewalk. She observed that water would run off from the downspouts affixed to either side of the building onto the grass. From there, the water would collect on the sidewalk, where it would freeze instead of draining onto the parking lot. She never reported the drainage issue to defendants.

¶ 6 Other witnesses were deposed regarding their observations of the condition of the premises where plaintiff fell. Plaintiff's neighbor, Roger McGowan, stated that he slipped and fell on ice in the same area of the sidewalk where plaintiff fell that same morning at about 6 a.m. but did not report it to defendants. He observed that the issue of water collecting on the sidewalk had been present since he moved to the complex in 2008. From his observations, the sidewalks appeared to be lower than where the foundation of the building sits and lower than where the downspouts are positioned. After a heavy rain, the water would run away from the building and toward the sidewalk, where the water would collect. Snow from areas close to the building would melt and then run toward the sidewalk. When the weather got cold again, water would freeze up across the sidewalk. McGowan was also told by another resident that they could not put mulch down because the mulch would all wash away from the water draining down from the gutters and the downspouts.

McGowan never complained about the drainage issues to anyone at Klein Creek or to Lieberman.

¶ 7 Michael Melson, plaintiff's brother, observed standing water on the sidewalk in the area where plaintiff fell either that night or the next day. He also slipped and almost fell on the same sidewalk a day or two after plaintiff's fall. According to Melson, water would pool on the sidewalk after a rainfall or melting snow. Based on his observations, the sidewalk was lower than the grass and was graded toward the grass instead of the parking lot, allowing water and dirt to run down onto it and allowing patches of ice to form.

¶ 8 Jeff Graves, the president of the Klein Creek Condominium Association at the time of plaintiff's fall, stated that prior to her fall he was aware of water collecting on and around the sidewalks in other areas of the complex, especially during heavy rainstorms, but he was not aware of similar water pooling in the area behind the building where plaintiff fell. The only accumulation of water he ever saw in that location would be from puddles after it rained. Graves inspected the area where plaintiff fell several hours after the fall, and the sidewalk was "bone dry." He did not see any ice. At that time, the temperature was in the forties or fifties, and it was sunny.

¶ 9 April Knourek, the property manager prior to plaintiff's fall, and Kyla Mercer, the manager at the time of plaintiff's fall, both testified regarding maintenance of the premises and drainage work that had been performed at the property. Knourek stated that drainage work was prompted by residents in another area of the complex, who were having problems with water pooling up near the foundation of their building and with mulch and dirt being washed away by the water. Neither manager recalled any problems with sidewalks, and both believed that most of the drainage issues had occurred on the courtyard side of the buildings and not in the back of the buildings where the sidewalks are located. Mercer did not inspect the sidewalk where plaintiff fell after the incident.

¶ 10 When shown photographs of the sidewalk area where plaintiff fell, which were taken a month after the fall, both managers acknowledged that some of the photographs depicted standing water on the sidewalk and mud and debris on the sidewalk from the grassy area. Knourek agreed that the problem with mud and debris was consistent with the type of drainage issues residents had complained about previously in other areas of the property. She agreed that standing water on the sidewalk could freeze and cause an icy condition, but she did not believe it would require intervention. Mercer acknowledged that one of the photographs depicted the grassy area adjacent to the sidewalk at a higher level than the sidewalk and the carpenter's level in the photograph showed the sidewalk slightly slanted toward the grassy area. They both stated that during their time as property manager, they were not aware of any issues with standing water on the sidewalk where plaintiff fell.

¶ 11 David Selio was the owner of the snow and ice removal and landscaping service hired by the association and was also a resident of Klein Creek. He testified that under the contract, he would perform snow and ice removal services when two or more inches of snow fell but for any snowfall less than two inches, he was required to get approval from the association. He last cleared the snow on February 7, 2011, about 11 days prior to plaintiff's fall. He was aware that prior to plaintiff's fall, drain tile was installed in another area of the complex to redirect the flow of water on the property away from the foundation, due to soil erosion. In 2010, the Association accepted his bid for installation of drain tile work in another area of the complex to improve drainage near the foundation. Eight months after plaintiff's fall, in October 2011, additional drainage redirection work was done on the premises, including work to the area behind the building where plaintiff fell.

¶ 12 Defendants subsequently filed a joint motion for summary judgment, arguing, in part, that plaintiff's slip and fall claim was barred by the immunity provided to residential owners and operators under the Snow and Ice Removal Act. 745 ILCS 75/0.01 et seq. (West 2010). In ruling on the issue, the trial court recognized a split of authority in the appellate court regarding the scope of the immunity under the Act. In Greene v. Wood River Trust, 2013 IL App (4th) 130036, ¶ 17, 376 Ill.Dec. 215, 998 N.E.2d 925, the court held that the plain language of the Act limits immunity from liability to those claims arising out of negligent snow and ice removal efforts. Alternatively, in Ryan v. Glen Ellyn Raintree Condominium Ass'n, 2014 IL App (2d) 130682, ¶ 20, 380 Ill.Dec. 638, 8 N.E.3d 1180, the court construed the scope of the immunity more broadly to include immunity from liability for claims of negligence arising from a defective condition on...