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Mccann v. Bethesda Hospital





APPEAL from the Circuit Court of Cook County; the Hon. DAVID CANEL, Judge, presiding.


Mr. JUSTICE CAMPBELL delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County denying the plaintiff's motion to vacate the summary judgment entered on March 22, 1978, in favor of defendants, Bethesda Hospital (hereinafter Bethesda) and John Mertes. On appeal the plaintiff contends that the trial court erred in granting the defendants a summary judgment pursuant to Section 57 of the Civil Practice Act. Ill. Rev. Stat. 1977, ch. 110, par. 57.

We reverse.

This suit originates from a fall suffered by the plaintiff, Monica McCann, on December 7, 1972, at a parking lot adjacent to Bethesda Hospital in Chicago. The plaintiff and her husband parked at the lot while visiting a friend who was a patient at the hospital. The accident occurred, when the plaintiff, upon leaving the hospital and returning to her car, slipped and fell near the passenger door of her car. The plaintiff fractured her hip in the fall. The plaintiff testified at her deposition that she did not see what caused her fall, but that her husband told her that he discovered ice at the spot where she fell.

The weather at the time of the accident was cold and damp. The weather report for the week of the accident reveals that there was only a trace of snow on the day of the accident, but, that during the week prior to the accident 3.3 inches of snow fell, with .8 inches of snow reported on the day before the accident, December 6, 1972. During the week before the accident, the temperature fluctuated so that the temperature rose to 51 degrees early in the week and then fell below zero. According to the plaintiff's deposition, there was snow on the ground on the day of the accident and the streets were wet. Defendant Mertes testified in his deposition that the parking lot was icy on the day before the accident but the plaintiff stated that her husband had no difficulty in pulling into the parking lot because of slipperiness.

The parking lot, located east and adjacent to the hospital, sloped from west to east. According to Richard Mann, the architect who examined the parking lot, the pitch of this slope was in excess of 7% at its western end. This pitch allowed no water to accumulate at the western end of the lot. At the point of the plaintiff's fall, however, the parking lot was much more level which allowed water runoff to accumulate and freeze.

The record indicates that the hospital employed the defendant John Mertes to plow the hospital parking lot. Mertes stated in his deposition that when he plowed the Bethesda parking lot it was his practice to pile the snow wherever he could but that he primarily placed it at the south end of the lot. Mertes' records reveal no bill for plowing on the day of the accident, but do indicate that plowing services were billed for the day prior to the accident. In his deposition Mertes stated that he did not plow on this date, however, because it was too icy, but that he did submit a bill to cover his travel time. The plaintiff stated in her deposition that on the date of the accident she observed that snow was pushed across the lot and accumulated on a curb running north and south through the lot.

The plaintiff filed a complaint seeking damages for the injuries that she suffered in the fall. The complaint charged Bethesda and Mertes with negligence in improperly operating and maintaining the parking lot, failing to inspect the lot, and failing to warn the users of the lot of its dangerous and icy condition. The hospital answered, denying that they had any knowledge of the ownership or control of the parking lot and specifically denying that they committed any of the negligent acts alleged in the complaint. It should be noted that, at oral argument, counsel for the hospital admitted that no question was raised as to the ownership of the lot by the hospital.

After the depositions of the plaintiff and defendant Mertes were taken, the defendants filed a motion for summary judgment on the basis that the record revealed that the ice upon which the plaintiff fell was a natural accumulation and that in Illinois a landowner is not liable for injuries caused to an invitee from natural accumulations of snow or ice found on his property. The defendants' motion was supported by the following facts: (1) snow fall and freezing weather on the day of the accident and on the day before the accident; (2) the plaintiff's admission that the only snow that she saw in the parking lot was a natural accumulation on a curb; and (3) the affidavit and deposition of Mertes stating that he did not plow the parking lot at Bethesda for several days prior to the accident.

It appears from the record that the trial court granted the defendants' motion for summary judgment before the plaintiff filed a brief in opposition to the motion on a record consisting of pleadings, the deposition of the plaintiff, the deposition and affidavit of the defendant, John Mertes, and a copy of the official Chicago weather report issued for the month of December 1972 by the United States Department of Commerce. The plaintiff subsequently filed her brief, an architectural survey of the Bethesda parking lot and surrounding buildings, an affidavit by John Mann, the architect who examined the parking lot, a copy of a statement submitted by Mertes to the hospital for plowing on December 6, 1972, the day prior to the accident, and an excerpt from the Mertes deposition in seeking to vacate the summary judgment. When the trial court denied the plaintiff's motion to vacate, she brought the present appeal.

• 1 It is well established that a dismissal at a preliminary stage of a proceeding is a drastic action and therefore summary judgments should be granted with caution. (Rivan Die Mold Corp. v. Stewart Warner Corp. (1975), 26 Ill. App.3d 637, 325 N.E.2d 357; Solone v. Reck (1961), 32 Ill. App.2d 308, 177 N.E.2d 879.) A summary judgment will be entered in favor of the moving party only where the pleadings, depositions, affidavits, and other documents demonstrate that no genuine issue of fact exists which warrants trying the case. (Ill. Rev. Stat. 1977, ch. 110, par. 57; In re Estate of Ariola (1979), 69 Ill. App.3d 158, 386 N.E.2d 862; Hernandez v. Trimarc Corp. (1976), 38 Ill. App.3d 1004, 350 N.E.2d 202.) Moreover, trial courts> construe the record strictly against the moving party and liberally in favor of the opponent of the motion. Killeen v. Dunteman Co. (1979), 78 Ill. App.3d 473, 397 N.E.2d 436; Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill. App.2d 80, 243 N.E.2d 40.

• 2 A landowner is under a duty to an invitee to exercise ordinary care in the use and maintenance of his property (Dunlop v. Marshall Field & Co. (1975), 27 Ill. App.3d 628, 327 N.E.2d 16), but a landowner has no duty and is consequently not liable for injuries sustained as a result of the presence of naturally accumulated snow or ice. (Riccitelli v. Sternfeld (1953), 1 Ill.2d 133, 115 N.E.2d 288; Bakeman v. Sears, Roebuck & Co. (1974), 16 Ill. App.3d 1065, 307 N.E.2d 449; DeMario v. Sears Roebuck & Co. (1972), 6 Ill. App.3d 46, 284 N.E.2d 330.) Liability is imposed, however, where a plaintiff shows that an injury occurred as the result of snow or ice "produced or accumulated by artificial causes or in an unnatural way or by defendant's own use of the area concerned and creation of the condition * * *." Fitzsimons v. National Tea Co. (1961), 29 Ill. App.2d 306, 318, 173 N.E.2d 534; accord, Foster v. George J. Cyrus & Co. (1971), 2 Ill. App.3d 274, 276 N.E.2d 38; Stroyeck v. A.E. Staley Manufacturing Co. (1960), 26 Ill. App.2d 76, 167 N.E.2d 689.

The plaintiff does not contest the general law in this area. Rather, it is the plaintiff's theory that an unnatural accumulation of ice existed at the spot where the plaintiff fell caused either by (1) negligent plowing of the parking lot by Mertes on December 6, 1972, or (2) by the slope of the parking lot which allowed runoff water to form unnatural accumulations and freeze. The plaintiff points to Fitzsimons v. National Tea Co. and Foster v. George J. Cyrus & Co. to show that the negligent plowing of a parking lot may cause an unnatural accumulation of ice. In Fitzsimons, the court held that an unnatural accumulation existed where snow was placed away from the parking lot's drains at a position where the snow could melt and refreeze, while in Foster liability was based on the fact that the defendant's plowing of ice and snow up against the plaintiff's car created an unnatural accumulation. The plaintiff argues that as the record reveals an issue of fact concerning whether the parking lot had been plowed shortly before the accident, this issue should have been submitted to the jury. (Foster v. George J. Cyrus & Co.) This argument ignores ...

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