Wells v. Great Atlantic & Pacific Tea Co.

• Decision Date: 20 June 1988
• Docket Number: No. 87-0260,87-0260
• Citation: 121 Ill.Dec. 820,525 N.E.2d 1127,171 Ill.App.3d 1012
• Parties: , 121 Ill.Dec. 820 Zadie WELLS, Plaintiff-Appellant, v. GREAT ATLANTIC & PACIFIC TEA COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1127

525 N.E.2d 1127

171 Ill.App.3d 1012, 121 Ill.Dec. 820

Zadie WELLS, Plaintiff-Appellant, v. GREAT ATLANTIC & PACIFIC TEA COMPANY, Defendant-Appellee.

No. 87-0260.

Appellate Court of Illinois First District, First Division.

June 20, 1988.

Law Offices of Fraterrigo, Best & Beranek, Chicago (Gary M. Feiereisel, of counsel,) for plaintiff-appellant.

Haskell & Perrin, Chicago (Kevin W. Doherty and Darryl B. Einhorn, of counsel,) for defendant-appellee.

Justice MANNING delivered the opinion of the court:

This appeal stems from an order of the circuit court of Cook County denying plaintiff's motion to vacate the summary judgment entered in favor of the defendant, Great Atlantic and Pacific Tea Company ("A & P"). Plaintiff contends that the trial court erred in granting defendant's motion for summary judgment, and that the court's refusal to vacate that order constitutes an abuse of discretion.

For the reasons which follow, we affirm the decision of the trial court. On February 7, 1982, plaintiff Zadie Wells ("Zadie") slipped and fell on a patch of ice in A & P's parking lot. She filed a two-count complaint against A & P and Robert Vasser ("Vasser"), who had been hired by A & P to remove snow from the parking lot. In her complaint she alleges that the defendants negligently: (1) failed to maintain the parking lot in a safe condition; (2) failed to properly remove ice and snow from the parking lot; (3) created an unsafe condition through the negligent alteration of ice and snow; and (4) failed to warn the public of the unsafe condition.

In 1985 A & P moved for summary judgment. The pleadings and exhibits filed in support of and in opposition to the motion establish the following factual matrix: On February 7, 1982, plaintiff was walking across the A & P parking lot with a friend when she slipped on snow covered ice and fell. At that time there was approximately two to three inches of snow covering the ice. Plaintiff had lived across the street from the A & P parking lot where she fell for several years. On the date of her accident, there were piles of snow around the perimeter of the lot that had been there for five to six weeks as a result of snowplowing operations in the lot.

In her deposition Neddie Lemmons testified that she was walking with the plaintiff through A & P's parking lot when the plaintiff slipped and fell. She said the surface of the lot was spotted with ice and slightly rutted, and in the area where the fall occurred there were speckles of snow over the ice. There were banks of snow around the edge of the parking lot that were there as a result of plowing done in the lot.

Plaintiff's expert, Charles Baule, stated in his affidavit that he had examined the parking lot in question and that it pitched toward the center of the lot. It was his opinion that if the snow were plowed in banks around the perimeter of the lot, during alternate periods of freezing and thawing the snow would melt and the water runoff could result in flat sheets of ice forming in the area where the plaintiff fell.

The climatological data showed that on January 31, 1982, there was a snowfall of 5.4 inches in the Chicago area and that on February 5, 1982, there was a snowfall of 2.6 inches. There had been thirteen days between January 1, 1982, and February 7, 1982, the date of the accident, on which the temperature went above the freezing mark, but the temperature did not rise over 32 degrees between January 31, 1982, and February 7, 1982.

Based on this evidence, the trial court held that the plaintiff failed to establish that the ice in question was an unnatural accumulation and granted summary judgment in favor of A & P. Plaintiff filed a motion for reconsideration supported with an amended affidavit of her expert as well as a motion to file a second amended complaint which contained new allegations of negligence. On rehearing, the trial court refused to consider the amended affidavit and denied both motions.

On appeal plaintiff alleges that summary judgment was improperly granted. First, because a question of fact exists as to whether the ice was an unnatural accumulation caused by the excessive slope of the parking lot combined with the manner in which the snow was plowed and second, because a question of fact exists as to whether the defendants were negligent in their snow removal activities.

In order to defeat a motion for summary judgment in a slip-and-fall case, the plaintiff must affirmatively show that the accumulation of ice, snow or water is due to an unnatural accumulation and that the property owner had actual or constructive knowledge of the condition. (Gilberg v. Toys "R" Us, Inc. (1984), 126 Ill.App.3d 554, 557, 81 Ill.Dec. 825, 467 N.E.2d 947.) When a plaintiff alleges that the design of a sloping surface created an unnatural accumulation of ice, there must be evidence presented of the dangerous nature of the slope, that the slope was the proximate cause of the plaintiff's injuries and that the landowner had notice of the defect. (Davis v. City of Chicago (1972), 8 Ill.App.3d 94, 97, 289 N.E.2d 250.) Once such evidence has been produced, the issue of whether the slope was a dangerous condition which created an unnatural accumulation of ice is a question of fact. McCann v. Bethesda Hosp. (1980), 80 Ill.App.3d 544, 549, 35 Ill.Dec. 879, 400 N.E.2d 16.

Plaintiff contends that her evidence of the dangerous nature of the slope of the parking lot raised an issue of fact as to whether the ice upon which she fell was an unnatural accumulation which should have been submitted to the jury. The trial court found, and we agree, that the plaintiff has not presented sufficient evidence of an excessive slope. At the time summary judgment was granted, the only evidence of an allegedly excessive slope was the statement of plaintiff's expert that the surface of the parking lot "pitched downward" from the perimeter towards the center of the lot. There was no factual support for this conclusion and based on that statement alone, no question of fact existed as to whether the ice was an unnatural accumulation resulting from the allegedly dangerous nature of the slope.

Plaintiff argues that any deficiency in the original affidavit regarding the degree of the slope was remedied in Charles Baule's amended affidavit which contained a survey of the parking lot and specific information regarding the slope of the lot, and that it was an abuse of discretion for the court not to consider the amended affidavit on rehearing. Whether to permit the filing of additional affidavits subsequent to the court's announcement of its ruling on a motion for summary judgment is within the discretion of the trial judge. (Anger v. Gottfried (1975), 29 Ill.App.3d 559, 563, 331 N.E.2d 576.) Where the plaintiff was given ample opportunity to prepare and present affidavits and documents in support of her opposition to defendant's motion, the court's refusal to allow the filing of additional affidavits does not constitute an abuse of discretion. (Gecht v. Suson (1971), 3 Ill.App.3d 183, 188, 278 N.E.2d 193.) Plaintiff concedes that the information in the amended affidavit was not new information but merely an "amplification" of the previous affidavit. Based on that fact, we see no reason why the information contained in the amended affidavit could not have been included in the original affidavit, and we find that the court did not abuse its discretion by refusing to consider the amended affidavit on rehearing.

Even assuming the amended affidavit had been considered on rehearing, plaintiff nonetheless fails to establish an excessive slope. The record indicates that from the southeast corner of the parking lot to the southern most catch basin there is a 4.5 inch drop over a 65.3 foot length, and from the southern entrance of the parking lot to the catch basin there is a 3.5 inch drop over a 44.3 foot length. In Davis v. City of Chicago (1972), 8 Ill.App.3d 94, 289 N.E.2d 250, a drop of approximately five inches per 51 inches was held to be insignificant, and in Greenwood v. Leu (1973), 14 Ill.App.3d 11, 302 N.E.2d 359, a drop of two inches per 54 inches was not actionable. In the present case we find that even had the amended affidavit been considered on rehearing, as a matter of law, the drop of approximately .29 inches per 50 inches from the southeast corner of the parking lot to the southernmost catchbasin, and the drop of approximately .33 inches per 50 inches from the southern entrance of the parking lot to the catch basin is not excessive.

Plaintiff further maintains that a question of fact exists as to whether the manner in which the parking lot was plowed was negligent. ¹ She contends that plowing the snow into banks around the perimeter of the lot constitutes negligence because melting snow from the banks created an unnatural accumulation of ice and because the contract between A & P and Robert Vasser called for "snow removal" and the snow was not completely removed from the premises. This allegation raises two issues: first, whether the plowing was performed negligently and second, whether the plaintiff can rely upon the contract between the defendants to impose liability upon them. As to the first issue, it is the law in Illinois that in the absence of a contractual obligation, there is generally no duty on the part of a property owner to remove accumulations of ice or snow from areas maintained for the use of his customers where the accumulation is a natural one and not caused or aggravated by the property owner. (Lewis v. W.F. Smith & Co. (1979), 71 Ill.App.3d 1032, 1037, 28 Ill.Dec. 57, 390 N.E.2d 39; Timmons v. Turski (1981), 103 Ill.App.3d 36, 38, 58 Ill.Dec. 884, 430 N.E.2d 1135.) However, a voluntary undertaking to remove snow and ice may subject the landowner to liability if the removal is performed negligently. (Burke v. City of Chicago (1987), 160 Ill.App.3d 953, 956, 112 Ill.Dec. 375, 513 N.E.2d 984.) The...