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Zide v. Jewel Tea Co.

FEBRUARY 19, 1963.

LILLIAN ZIDE, PLAINTIFF-APPELLEE,

v.

JEWEL TEA COMPANY, A CORPORATION (AND AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, TRUSTEE UNDER TRUST NO. 10552), DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. THOMAS J. MORAN, Judge, presiding. Reversed and remanded with directions.

WRIGHT, P.J.

This action was brought to recover damages for personal injuries sustained by the plaintiff when she fell in the parking lot of defendant, Jewel Tea Company, in Waukegan, Illinois.

The case was tried before a jury. At the close of the plaintiff's evidence, defendant moved for a directed verdict which motion was overruled. A verdict was returned finding the defendant, Jewel Tea Company, guilty and assessing plaintiff's damages in the sum of $25,000. Judgment was entered on the verdict.

Thereafter, the defendant, Jewel Tea Company, filed a post-trial motion for judgment notwithstanding the verdict and in the alternative for a new trial. These motions were overruled. Defendant, Jewel Tea Company, appeals.

The defendant, Jewel Tea Company, operates a grocery store on Glen Flora Avenue in Waukegan, Illinois. On the east side of the store, defendant maintained a parking lot for its customers about three-fourths acre in size surfaced with bituminous material. The lot is bordered on the north edge by a sidewalk which leads to the front entrance of the store. The parking lot contains many parking lanes and bays delineated by painted lines and slopes toward the east.

The accident occurred after dark on January 31, 1959. On that date in Waukegan the temperature had ranged between eight degrees below zero and eleven degrees above zero. Two and one-half inches of snow had fallen the previous evening adding to the already accumulated ten inches.

Plaintiff, age 39, testified that on the day of the occurrence she left her home at approximately 5:30 o'clock p.m. and drove a distance of six blocks to shop at the store of the defendant; that she drove into the east lane of the parking lot and parked her automobile on the north end of the parking lot in the second parking stall east of the store; that she then opened the front door on the driver's side and proceeded to leave the automobile while the dome light was on; that she could see the surface on which she first stepped and it was completely clear of any ice and snow. Plaintiff then shut the door, put her hand on the car next to her and started to walk toward the store and after taking a couple of steps fell between the rear bumper of her automobile and the one to the west. The plaintiff testified "I started to walk, the next thing I knew I was lying on the ice. I didn't even realize I had fallen until I was on the ice . . . It happened so fast I didn't realize I had fallen." Plaintiff then tried to raise herself up by placing her hand on the rear bumper of her automobile and slipped and fell again. She further stated that she noticed she was lying on ice that was "heavy and ridged."

Marvin Hackbarth, manager of defendant's store, testified that on the morning of the accident the snow on the parking lot had been plowed by a jeep with a straight blade snow plow attached. That the snow was plowed from the north end to the south end of the lot. He stated that after the plowing operation, the entire lot was covered by light packed snow and that he observed no ice on the parking lot. He also testified that an employee had spread salt around the entrance to the store in the area of the canopy to thaw the ice and packed snow. This area was sprinkled with salt about four times during the day, the last time being about 4:00 o'clock p.m.

Robert Sorensen, employed as a carry out boy by the defendant, testified that on the day of the accident the snow on the parking lot had been plowed and thereafter the parking lot was covered with a thin film of snow about one-eighth of an inch thick. This witness described the snow "as hard packed snow" and stated there was no ice on the parking lot. He further testified that he actually noticed the plaintiff in the process of falling, and that she was directly east of him walking in a line coming from the east to the west and that she fell near the second parking stall. He also testified that plaintiff's automobile was parked in the fourth or fifth stall and that the place where plaintiff fell was covered by hard packed snow.

Frank J. Furlan, a civil engineer, called as plaintiff's witness, testified that he measured the parking stalls, demarcations of individual parking bays and took relative elevations of a good portion of the parking lot; that he examined the first few parking areas immediately south of the sidewalk along Glen Flora Avenue adjacent to the exit that goes by the Jewel Tea Store entrance; that he found the parking lot drained from the store toward the easternmost edge of the lot where a drain was located; that there was a total drop from the building to the drain of 1.4 feet. He further testified that with the exception of minor undulations, there was a constant drain from the building to the drain area with the exception of the first parking bay. He stated that undulations, if they are on a flat surface, will cause the area to form puddles, but if the undulations are on a pitched area the water will run away provided the undulations are not more than the pitch.

Defendant contends (1) That in the maintenance and operation of its parking lot defendant violated no duty owed to the plaintiff and was not guilty of any negligence. (2) That plaintiff was not in the exercise of ordinary care for her own safety at the time of the occurrence in question and that her injuries were the proximate result of her own negligence. (3) That the verdict of the jury is contrary to the law and the evidence and the trial court erred in refusing to direct a verdict for the defendant and overruling defendant's motion for judgment notwithstanding the verdict and in the alternative for a new trial. (4) That the verdict of the jury is against the manifest weight of the evidence and, (5) That the trial court erred in admitting into evidence over defendant's objections, Plaintiff's Exhibits Nos. 1, 2 and 3.

Plaintiff argues that the ice on which plaintiff fell did not accumulate from natural causes but was caused by water from the melted snow and ice salted and thawed by defendant's employees, which drained from the area around the store entrance to the place where plaintiff fell and that from the physical characteristics of the surface, the jury could reasonably infer that the salt and warmth from the store entrance melted the ice and packed snow around the area of the canopy and from the pitch of the parking lot it could only run down into the lot where it would accumulate in the undulations and freeze.

Plaintiff further contends that defendant's alleged negligence and plaintiff's alleged exercise of ordinary care were questions of fact properly submitted to the jury and that no error was committed in admitting into evidence Plaintiff's Exhibits 1, 2 and 3.

A property owner is not liable for injury sustained by a business invitee in a fall on an icy sidewalk or parking lot maintained by the property owner for the use of its customers where the condition is a natural one and not caused or aggravated by the property owner. Kelly v. Huyvaert, 323 Ill. App. 643, 56 N.E.2d 638. However, a property owner may be liable for injury sustained by a business invitee who falls and is injured as a result of snow and ice which did not accumulate from natural causes, but as a result of the property owner doing something ...


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