Ryan v. Glen Ellyn Raintree Condo. Ass'n

• Decision Date: 11 April 2014
• Docket Number: No. 2–13–0682.,2–13–0682.
• Citation: 380 Ill.Dec. 638,2014 IL App (2d) 130682,8 N.E.3d 1180
• Parties: Mary RYAN, Plaintiff–Appellant, v. GLEN ELLYN RAINTREE CONDOMINIUM ASSOCIATION, Glen Ellyn Raintree Condominium–Ashfield House Owners Association, and CDH Properties, Inc., Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2014 IL App (2d) 130682

8 N.E.3d 1180

380 Ill.Dec. 638

Mary RYAN, Plaintiff–Appellant,

v.GLEN ELLYN RAINTREE CONDOMINIUM ASSOCIATION, Glen Ellyn Raintree Condominium–Ashfield House Owners Association, and CDH Properties, Inc., Defendants–Appellees.

No. 2–13–0682.

Appellate Court of Illinois,

Second District.

April 11, 2014.

Bradley N. Pollock, Adam C. Kruse, Walsh, Knippen, Pollock & Cetina, Chtrd., Wheaton, for appellant.

James D. Komsthoeft, Abramson, Murtaugh & Coghlan, Chicago, for appellees.

OPINION

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

¶ 1 Plaintiff, Mary Ryan, appeals the trial court's summary judgment in favor of defendants, Glen Ellyn Raintree Condominium Association, Glen Ellyn Raintree Condominium–Ashfield House Owners Association, and CDH Properties, Inc., on plaintiff's negligence complaint against them. For the following reasons, we hold that, as a matter of law, the Snow and Ice Removal Act (Act) (745 ILCS 75/1 et seq. (West 2012)) bars plaintiff's negligence suit. Thus, we affirm.

¶ 2 I. BACKGROUND

¶ 3 Defendants Glen Ellyn Raintree Condominium Association and Glen Ellyn Raintree Condominium–Ashfield House Owners Association (collectively, Raintree) own and control the common areas of a condominium complex in Glen Ellyn. In February 2008, plaintiff was injured when she slipped and fell within one of the common areas of the complex. Her fall occurred just outside the entrance of a building within the complex. At the time of the accident, Raintree had ongoing contracts with defendant CDH Properties, Inc. (CDH), to maintain the premises, and with Building Maintenance Systems, Inc. (BMS), to remove snow and ice. Plaintiff brought suit against Raintree, CDH, and BMS. BMS was later dismissed from the lawsuit, and so we address plaintiff's complaint only as it relates to Raintree and CDH. Plaintiff alleged in her complaint that she slipped on a patch of ice that had formed because of water dripping from an overhead awning and then freezing on the walkway below. Defendants were negligent, plaintiff claimed, because they (1) failed to correct a design flaw in the awning that directed melted snow and rainwater onto the walkway below; and (2) voluntarily undertook to remove snow and ice from the premises but failed to clear the particular patch of ice on which she slipped.

¶ 4 Defendants moved for summary judgment on two principal grounds. First, defendants invoked the common-law rule that landowners have no duty to remove natural accumulations of snow or ice (see, e.g., Greene v. Wood River Trust, 2013 IL App (4th) 130036, ¶ 14, 376 Ill.Dec. 215, 998 N.E.2d 925), and claimed that the ice on which plaintiff slipped was entirely a natural accumulation. Second, and alternatively, defendants maintained that plaintiff's suit was barred by section 2 of the Act (745 ILCS 75/2 (West 2012)), which eliminates liability for injuries resulting from a residential property owner's acts or omissions in attempting to remove snow or ice from sidewalks abutting the property, “unless the alleged misconduct was willful or wanton.” In this connection, defendants contended, first, that plaintiff's claim fell within the scope of section 2 because she was alleging that the ice patch on which she slipped resulted from defendants' failed snow removal efforts. Defendants pointed to deposition testimony that such removal efforts were ongoing in February 2008. Specifically, defendant had retained BMS to remove snow and ice, and CDH not only inspected the premises weekly for snow and ice hazards but also inspected the premises after each visit by BMS, to ensure that it had performed its work properly. Defendants further contended that there was no evidence of willful or wanton omissions in their removal efforts.

¶ 5 In response, plaintiff disagreed with defendants' construal of her claim. She maintained that her complaint alleged liability based on an architectural feature of the premises and not on any omission by defendants in their snow and ice removal efforts. According to plaintiff, the Act did not eliminate liability for injuries resulting from design defects. To support her claim of a design defect, plaintiff attached the deposition of Steven Weiss, an architect, who opined that the ice patch on which plaintiff slipped resulted not from ordinary precipitation but from an awning that directed water onto the walkway.

¶ 6 The trial court agreed with defendants that, no matter how the ice patch was formed, defendants' immediate or proximate negligence, as alleged by plaintiff, was in failing to remove the patch despite their general snow and ice removal efforts. Hence, plaintiff was indeed alleging “acts or omissions” by defendants in their snow and ice removal efforts, and so her claim fell squarely within section 2 of the Act. Accordingly, the trial court entered summary judgment for defendants on all counts of plaintiff's complaint.

¶ 7 Plaintiff filed this timely appeal.

¶ 8 II. ANALYSIS

¶ 9 In assessing plaintiff's challenge to the summary judgment, we first set forth the principles governing our review of such a judgment. The purpose of summary judgment is not to adjudicate a question of fact, but to determine if one exists. Adams v. Northern Illinois Gas Co., 211 Ill.2d 32, 42–43, 284 Ill.Dec. 302, 809 N.E.2d 1248 (2004). Summary judgment should be granted only where the pleadings, depositions, admissions, and affidavits on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to any material fact and that the moving party is clearly entitled to a judgment as a matter of law. 735 ILCS 5/2–1005(c) (West 2012); Adams, 211 Ill.2d at 43, 284 Ill.Dec. 302, 809 N.E.2d 1248. The interpretation of a statute, which our resolution of this appeal entails, presents a question of law suitable for resolution by summary judgment. Allegis Realty Investors v. Novak, 223 Ill.2d 318, 330, 307 Ill.Dec. 592, 860 N.E.2d 246 (2006). We review de novo the grant or denial of summary judgment. Adams, 211 Ill.2d at 43, 284 Ill.Dec. 302, 809 N.E.2d 1248.

¶ 10 As has been recognized, the Act is in derogation of the common law. Greene, 2013 IL App (4th) 130036, ¶ 16, 376 Ill.Dec. 215, 998 N.E.2d 925. According to plaintiff, the Act abrogated only in part the common-law bases on which a property owner could be liable for injuries due to accumulated snow or ice on the property, and she asserts that her lawsuit is premised on those unaffected bases for liability.

¶ 11 To understand and assess this argument, we first set forth the common-law duties of a landowner with respect to accumulated snow or ice. Webb v. Morgan, 176 Ill.App.3d 378, 382–83, 125 Ill.Dec. 857, 531 N.E.2d 36 (1988), cited by plaintiff, accurately states the common law on the issue:

“The general rule in Illinois is that a property owner owes no common law duty to remove natural accumulations of ice and snow from common areas which remain under his control and thus cannot be found liable for injuries resulting from a natural accumulation of ice and snow. [Citation.] However, when the property owner chooses to remove ice and snow, he is charged with the duty of exercising ordinary care in the accomplishment of that task. [Citation.] The property owner, then, has no duty to remedy a natural accumulation of ice and snow. His duty is to prevent an unnatural accumulation on his property, whether that accumulation is the direct result of the owner's clearing of the ice and snow, or is caused by design deficiencies that promote unnatural accumulations of ice and snow. [Citation.] The plaintiff has the burden of affirmatively proving that the ice and snow on which she fell was an unnatural accumulation caused by the defendant. [Citation.]”

The essence here is that, under the common law, only unnatural accumulations of snow or ice, i.e., accumulations caused by the property owner or his agents, can be a ground for liability. Plaintiff emphasizes the Webb court's twofold catalogue of the man-made causes of unnatural accumulations: (1) snow and ice removal efforts; and (2) design deficiencies. According to plaintiff, the Act abrogates liability for only theory (1), not theory (2).

¶ 12 Before moving on to the Act, we take pains to be precise about what the common law holds. Liability theory (1) concerns snow and ice removal efforts that themselves create unnatural accumulations. See, e.g., Fitz Simons v. National Tea Co., 29 Ill.App.2d 306, 311–12, 173 N.E.2d 534 (1961) (snow plowed into large mounds melted, creating an incline of ice on which the plaintiff slipped). Theory (2) is based ultimately on a design or construction defect. See, e.g., Lapidus v. Hahn, 115 Ill.App.3d 795, 800–01, 71 Ill.Dec. 136, 450 N.E.2d 824 (1983) (plaintiff slipped on “ice [that] was caused by the defective nature and construction of the roof,” from which “water repeatedly dripped in torrents”). We say “ultimately” because theory (2) also presupposes more immediate negligence. Liability under theory (2) is based on a design or construction defect coupled with passivity by the owner—specifically, nonexistent or ineffective efforts at removing the accumulation resulting from the defect. Thus, this basis for liability always assumes (barring a reason for strict liability) the more immediate negligence consisting of the defendant's failure to clear the particular unnatural accumulation of snow or ice that led to the plaintiff's injury. After all, an owner of property with myriad defects that promote unnatural accumulations of snow or ice can avoid liability as long as the owner clears or neutralizes such accumulations before they cause injury.

¶ 13 We turn to the text of the Act. Section 1 (745 ILCS 75/1 (West 2012)) sets forth the legislative findings behind, and purpose for, the Act:

“It is declared to be the public policy of this State that owners and others residing in residential units be encouraged to clean the...