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Smalling v. Lasalle Nat'l Bk. of Chicago

OPINION FILED MARCH 16, 1982.

RICHARD L. SMALLING, PLAINTIFF-APPELLANT,

v.

LASALLE NATIONAL BANK OF CHICAGO, TRUSTEE, ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Champaign County; the Hon. HARRY E. CLEM, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiff, Richard Smalling, appeals from an order of the circuit court of Champaign County granting the defendants', LaSalle National Bank, Landau and Heyman, P.A. Bergner & Company, and Brown's Sporting Goods, motions for summary judgment against plaintiff's complaint alleging personal injuries from a fall on snow on defendants' loading ramp.

On November 29, 1978, plaintiff filed a complaint for personal injuries against the defendants seeking recovery of medical expenses, lost wages, and other damages incurred as a result of a fall on a snow covered ramp at the Market Place Mall in Champaign, Illinois. An amended complaint, filed following defendants' motion to dismiss, alleged that plaintiff had gone to the Market Place Mall to purchase a ping-pong table at defendants' P.A. Bergner & Company or Brown's Sporting Goods. Plaintiff alleged that the legal title to the premises in question was held by LaSalle National Bank, beneficial interest was held by Landau and Heyman, and that all defendants were in joint control of the premises in question. Plaintiff stated that he had paid for the ping-pong table and was directed by an employee of P.A. Bergner or Brown's Sporting Goods to drive to a loading dock at the rear of the store to pick up the table. Plaintiff went to the loading dock and was told that he could wait until another employee arrived to assist the clerk or he could help in loading the table. Plaintiff decided to assist the clerk, and as he was backing down the snow-covered ramp, estimated to be 50 feet long and 30 degrees, he fell in the snow sustaining injuries to his leg and knee. At a discovery deposition, plaintiff testified that at the time he went into the store it had begun to snow and that there was snow on the ground. Plaintiff also stated that while he was waiting for an ambulance to arrive after he fell, he heard an employee rebuke another employee for not clearing the snow from the ramp.

Plaintiff's amended complaint alleged that defendants had breached one of the following duties owed to the plaintiff: (a) failed to remove or take steps to prevent the accumulation of ice and snow from said ramp or walkway, when they knew, or should have known, that customers would be using the same; (b) failed to warn plaintiff of the condition of said ramp or walkway when they knew, or should have known, of the dangers and unsafe conditions thereof; (c) permitted the said ramp or walkway to become covered with ice and snow when they knew, or should have known, it would be used by the public; (d) directed plaintiff to said ramp and requested him to use the same when they knew, or should have known, of its dangerous and unsafe conditions. Following the denial of defendants', LaSalle National Bank and Landau and Heyman, motions to dismiss, all defendants filed a motion for summary judgment. On June 19, 1981, the trial court entered an order granting defendants' motions for summary judgment, and it is from this order that plaintiff appeals.

Plaintiff argues that the trial court's action in granting defendants' motions for summary judgment was error, as material questions of fact existed regarding the condition of the ramp in question. Specifically, plaintiff contends that it was error to grant summary judgment because he was precluded from presenting evidence to show that the ramp had a defective condition or design which in combination with the snow resulted in the injuries. Despite these contentions, however, no allegation was made in plaintiff's complaint that the ramp was unsafely designed or defective, and no affidavits or other evidence were introduced on this issue aside from plaintiff's testimony that the ramp was 30 degrees in grade. If plaintiff had such evidence to present regarding the defective nature of the ramp, it was incumbent upon him to produce evidence of such defective design prior to the hearing on defendants' motions for summary judgment to support his prima facie case. (Kimbrough v. Jewel Companies, Inc. (1981), 92 Ill. App.3d 813, 819, 416 N.E.2d 328, 333.) Plaintiff's contrary contention that other evidence would have been forthcoming is inconsistent with the summary purposes of a section 57 motion (Ill. Rev. Stat. 1979, ch. 110, par. 57) for summary judgment, and would, if allowed, result in a trial despite the fact that plaintiff's theory of recovery and proof in support would be insufficient to sustain a jury verdict in his favor. Thus, eliminating this consideration from our review of whether summary judgment was proper, the question we must decide is whether, viewing the evidence contained in the pleadings and deposition in a light most favorable to plaintiff, no material question of fact exists and the defendants are entitled to a judgment as a matter of law. Erasmus v. Chicago Housing Authority (1980), 86 Ill. App.3d 142, 407 N.E.2d 1031.

• 1 We first note that although several jurisdictions have imposed a more stringent duty on owners or occupiers of land with regard to the removal of natural accumulations of ice and snow (see Dawson v. Payless For Drugs (1967), 248 Or. 334, 433 P.2d 1019; Quinlivan v. Great Atlantic & Pacific Tea Co. (1975), 395 Mich. 244, 235 N.W.2d 732; Kremer v. Carr's Food Center, Inc. (Alas. 1969), 462 P.2d 747; King Soopers, Inc. v. Mitchell (1959), 140 Colo. 119, 342 P.2d 1006), the law in Illinois is well established that a landowner has no duty to remove or take other precautions against the dangers inherent in natural accumulations of snow and ice. See Riccitelli v. Sternfeld (1953), 1 Ill.2d 133, 115 N.E.2d 288; Hankla v. Burger Chef Systems (1981), 93 Ill. App.3d 909, 418 N.E.2d 35; Erasmus v. Chicago Housing Authority (1980), 86 Ill. App.3d 142, 407 N.E.2d 1031; McCann v. Bethesda Hospital (1979), 80 Ill. App.3d 544, 400 N.E.2d 16; Bakeman v. Sears, Roebuck & Co. (1974), 16 Ill. App.3d 1065, 307 N.E.2d 449; Greenwood v. Leu (1973), 14 Ill. App.3d 11, 302 N.E.2d 359; Newcomm v. Jul (1971), 133 Ill. App.2d 918, 273 N.E.2d 699; DeMario v. Sears Roebuck & Co. (1972), 6 Ill. App.3d 46, 284 N.E.2d 330; Byrne v. Catholic Bishop of Chicago (1971), 131 Ill. App.2d 356, 266 N.E.2d 708; Fitzsimons v. National Tea Co. (1961), 29 Ill. App.2d 306, 173 N.E.2d 534.

Liability will be imposed, however, where the injury occurred as a result of snow and ice which is produced or accumulated by an artificial cause or in an unnatural way or by defendant's own use of the area concerned and creation of the condition. (McCann v. Bethesda Hospital (1979), 80 Ill. App.3d 544, 548, 400 N.E.2d 16, 19; Stroyeck v. A.E. Staley Manufacturing Co. (1960), 26 Ill. App.2d 76, 83, 167 N.E.2d 689, 692; Fitzsimons v. National Tea Co. (1961), 29 Ill. App.2d 306, 318, 173 N.E.2d 534, 540; McGourty v. Chiapetti (1962), 38 Ill. App.2d 165, 186 N.E.2d 102.) In McCann, the plaintiff had fallen on a patch of ice in defendant's lot which had been cleared the day before the accident. Plaintiff presented the affidavit of an architect which indicated that the slope of the parking lot had caused an unnatural accumulation of ice as a result of alternate days of thawing and freezing allowing water to drain and refreeze in the area where plaintiff fell. In considering whether summary judgment was properly entered for the defendant, the appellate court held that an issue of fact existed as to whether the slope of the parking lot was a dangerous condition creating an unnatural accumulation of ice and reversed the order allowing defendant's motion for summary judgment. (Accord, Fitzsimons.) In Stroyeck, plaintiff was injured from a fall on an ice covered sidewalk having a 13.6-degree grade while walking to her place of employment in the predawn hours. On appeal from the judgment entered on the jury verdict for plaintiff, the court noted that the combination of the steep grade, inadequate lighting and the fact that defendant's engineers had previously drawn up plans to remedy the slope on the sidewalk but had not done so, was sufficient evidence to uphold the implicit finding by the jury that the defendant was negligent. No natural accumulation was present in Stroyeck, however, since the evidence indicated that there was no ice and snow present in the neighborhood and the presence of the ice at the bottom of the ramp in question was a mystery. In McGourty, a business invitee was injured when he stepped upon a concrete block, which was covered with snow and ice falling from the overhead roof, used as a means of ingress and egress to defendant's loading dock. On appeal from the judgment entered on the jury verdict against defendant in plaintiff's suit for personal injuries, the court held that the evidence was sufficient to present a jury question and that the denial of defendant's motion for a directed verdict and judgment notwithstanding the verdict was proper. The court stated:

"Where a condition exists which will be made dangerous by snow and ice and where it can be discovered prior to the existence of the snow and ice, the condition is a patent defect. * * * There is ample basis for the finding in the instant case that defendant could by reasonable inspection have discovered that during the winter the cement block would be a dangerous means of egress from the dock." (38 Ill. App.2d 165, 175, 186 N.E.2d 102, 106.)

Thus the duty of the defendant in McGourty to exercise reasonable care toward business invitees (see Geraghty v. Burr Oak Lanes, Inc. (1955), 5 Ill.2d 153, 125 N.E.2d 47) to discover and remedy patent defects was breached by the defendant's failure to substitute a safer means of ingress and egress from the business premises. Like Stroyeck, the McGourty holding is not inconsistent with the natural accumulation rule. In McGourty the proof went to the defective nature of the steps and not that the defective condition to be remedied was the presence of the snow and ice. The snow and ice on the step was an unnatural accumulation, aggravating the already defective step.

Neither of these factors is present in the case at bar. Plaintiff made no allegation and offered no proof that the injury occurred as the result of a defect in the design or construction of the ramp and the record is clear that the snow on the ramp in question accumulated naturally, consistent with the general conditions prevalent in the neighborhood.

Likewise, in Greenwood and Davis v. City of Chicago (1972), 8 Ill. App.3d 94, 289 N.E.2d 250, no liability was imposed on landowners for injuries sustained on inclined surfaces covered with natural accumulation of ice and snow. In Davis, plaintiff, a pedestrian, fell on a slanting icy sidewalk having an incline of 5.7 degrees. The trial court granted defendant's motion for a directed verdict against the proof offered in support of plaintiff's complaint seeking damages for personal injuries, and on appeal from this order, the court concluded:

"Considering the slight angle of incline, we believe the overwhelming weight of the evidence to have demonstrated that plaintiff's fall was caused not by the slope of the sidewalk but rather by the snow and ice conditions for which the City was not responsible under the circumstances of this case." (8 Ill. App.3d 94, 97, 289 N.E.2d 250, 252.)

In Greenwood, plaintiff slipped on ice on a recessed sloping entrance to defendant's grocery store. In considering whether summary judgment was properly entered against plaintiff's suit for personal injuries, the court concluded that plaintiff's failure to allege that the ice and snow accumulated unnaturally or that the defendant created an unnatural condition of snow and ice was fatal to plaintiff's suit and affirmed the order granting defendant's motion. The court also noted that since plaintiff failed to introduce evidence to establish that the inclined surface had anything to do with the fall, the incline of the entranceway did not present a question of fact to preclude summary judgment.

• 2, 3 Considering the pleadings and the deposition of plaintiff, we conclude, as did the trial court, that there was no genuine issue of material fact and that the defendants were entitled to judgment as a matter of law (Ill. Rev. Stat. 1979, ch. 110, par. 57; McCann v. Bethesda Hospital (1979), 80 Ill. App.3d 544, 547, 400 N.E.2d 16, 19). Our review of the decisional law leads us to conclude that injuries arising from falls on ice and snow covered inclined surfaces, which have natural accumulations of ice and snow, do not give rise to liability on the part of the landowner. In the case at bar, plaintiff made no allegation and offered no proof on the ...


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