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Bakeman v. Sears

FEBRUARY 11, 1974.

ALICE BAKEMAN, PLAINTIFF-APPELLEE,

v.

SEARS, ROEBUCK AND COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN S. GHENT, JR., Judge, residing.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 13, 1974.

The plaintiff, Alice Bakeman, sued the defendant, Sears, Roebuck and Company, to recover damages for personal injuries allegedy suffered in a fall on a patch of ice in defendant's parking lot. Defendant appeals from a judgment of $6,000 entered on the jury verdict contending that the trial court should have directed a verdict for it at the close of plaintiff's evidence and at the close of all the evidence. In the alternative, defendant claims that various trial errors and rulings on instructions require a new trial.

Evidence presented by the plaintiff and witnesses on her behalf showed that plaintiff went to the Sears store in Rockford for Christmas shopping about 7 P.M. on December 12, 1969. Her father, Harold Bakeman, was driving, and her aunt, Louise Overton, and her niece, Kathy Bakeman, were also with her.

The large asphalt paved parking lot is to the south of the Sears store. Immediately behind the store is an east-west traffic drive. South of this are north-south lanes or aisles for parking diagonally, head-to-head. Harold Bakeman let the other three members of the party out of the car about two-thirds of the way south, down one of the north-south parking aisles and then parked the car. The weather was cold, between 10 and 27 degrees that day. Except between the heads of the parked cars, the lot was generally clear of ice and snow. There were no sidewalks or special lanes for pedestrians to walk from the parking lot to the store.

Plaintiff testified that she had been walking in the middle of the aisle and as she moved over to the right toward the back of the cars to avoid traffic she suddenly struck ice and went down. She said that there was no ice in the center of the lane or aisle, nor did she see any at the rear of the cars where she was walking. She did not have to walk around any ice before her fall. Plaintiff testified that although there was lighting at the end of the parking lot it was not too light along the back of the cars, and that just before she fell she was walking normally, looking ahead, down and ahead. She was wearing wide-heeled shoes but not winter boots. Her leg was broken in the fall.

Plaintiff's father, who was walking behind her, observed little pieces of ice scattered along the aisle which he paid no attention to. He saw one big patch but no other patches of ice where plaintiff fell.

Plaintiff's witnesses all consistently testified that the roadway or center of the aisle was dry; that plaintiff slipped on a patch of ice about 3 car-widths or spaces from the northern end of the aisle as it borders on the east-west drive. Plaintiff's father, who parked the car, did not see her fall but hurried up afterwards and observed a piece of ice on the road where cars had been running over it. He stated that the ice was slippery, was 18 to 20 inches in the shape of kind of a triangle that went out into the road and was oval on top. Louise Overton testified that the ice patch was diagonal, approximately 15 inches, one end coming to a point and that it was flat. Kathy Bakeman, who was 14 at the time of the fall, testified that the ice on which plaintiff fell was flat ice behind the parked cars about 3 feet long and 2 feet wide, forming a triangle or rectangle. She testified that ice was running from the patch up to the snow bank which was at the head of the cars. On cross-examination she testified that she knew what the ice looked like but she didn't really know how it got there.

Plaintiff's witnesses all testified that there were piles of snow between the heads of the parked cars, and that no abrasives, sand, gravel, salt or ashes were spread on the ice or anywhere else that they could tell. The niece testified that there were no lights next to the ice patch but that she had no trouble seeing it.

Defendant's building superintendent testified that the parking lot was illuminated by three light poles per aisle approximately 14 car-widths apart with each pole containing two 550-watt mercury vapor bulbs, all of which were functioning on the night of December 12. He also testified that the lot drains from west to east, and that on the night of December 12 the condition of the parking lot was good, there not being any snow or ice to speak of. An employee of Sears who came out to put a coat around plaintiff after she had fallen testified that there was no ice on the ground in the area where plaintiff had fallen other than the patch by plaintiff and that the parking lot was clear.

Another witness for the defendant testified that he removed snow from defendant's lot on the previous heavy snow fall on December 7. He stated that the lot was plowed in the morning of the 7th and the snow piles removed in the evening of the 7th, leaving the lot as clean as you could get it with a machine so that when he finished only a little snow was left. After the snow was shoveled the building superintendent had all of the entrances and exits sprayed with "Ice-Flo", and "Ice Melt" was spread on the east-west lane south of the store and on the main aisles.

Defendant introduced a climatological report which showed that after the 4.6 inches of snow on the 7th of December there was only .4 inches on the 9th of December and only traces on the 10th, 11th and 12th of December. The temperature from the 7th thru the 12th went above freezing on 4 days and on the 10th did not go below 35 degrees. Between the 7th and 12th of December the amount of snow on the ground in the Rockford area diminished from 5 to 3 inches. Defendant's building superintendent testified that between the 7th and 12th of December there was no snow that came down and stayed on the parking lot.

A Sears employee testified that plaintiff fell right on the border of the east-west lane at the end of the aisle. Another Sears employee testified that she took an unsigned statement from Louise Overton stating that plaintiff stepped backward and slipped at the edge of the east-west lane. Defendant presented and had admitted a photograph purporting to show a patch of ice which it claims is the one on which plaintiff slipped and which is shown in proximity to the overhead lighting.

• 1-4 Generally no liability is incurred for injuries resulting from a fall on snow or ice which has accumulated as a consequence of natural causes where the accumulation or condition is not aggravated by the owner. (Sims v. Block (1968), 94 Ill. App.2d 215, 222; Clauson v. Lake Forest Improvement Trust (1971), 1 Ill. App.3d 1041, 1045; Riccitelli v. Sternfeld (1953), 1 Ill.2d 133, 136.) There is no obligation to continuously remove the tracks of other customers (DeMario v. Sears Roebuck & Co. (1972), 6 Ill. App.3d 46, 50); nor does the removal of snow, which may leave a natural ice formation remaining on the premises, of itself constitute negligence (Anderson v. Davis Development Corp. (1968), 99 Ill. App.2d 55, 58-59). There is no duty to remove natural accumulations of snow and ice even after the ...


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