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Stiles v. Panorama Lanes

OPINION FILED JULY 16, 1982.

EILEEN STILES, PLAINTIFF-APPELLANT,

v.

PANORAMA LANES, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of St. Clair County; the Hon. JOSEPH F. CUNNINGHAM, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Presented here is the question of whether icy ridges and ruts resulting solely from ordinary vehicular traffic constitute an unnatural accumulation of snow and ice upon a parking lot used for business purposes.

Plaintiff, Eileen Stiles, sought damages in the amount of $25,000 for personal injuries suffered in a fall in the parking lot of defendant, Panorama Lanes, Inc. In her complaint she alleged negligence on the part of defendant for permitting the parking lot "to become rough and uneven with an unnatural accumulation of ice and snow," for permitting "ruts to exist in ice in the parking lot area" and for failing "to remove, salt or otherwise treat an icy or snow covered condition upon its parking lot." The trial court granted defendant's motion for summary judgment, finding no genuine issue as to any material fact with respect to the duties of defendant. Plaintiff appeals contending that summary judgment was improper because the pleadings and depositions raised a genuine issue of material fact, that the condition of the parking lot was "the product of an unnatural accumulation of ice and snow created by defendant's customers and its snow removal effort" and that whether defendant was negligent in the snow removal effort it undertook was a question of fact.

In her deposition plaintiff stated that at about 7:30 p.m. on January 26, 1979, she walked upon defendant's parking lot in order to attend a dance in defendant's building. She said at that time she could see in the parking lot "ice ruts" caused by the tires of automobiles and that as a consequence she "trod over those very carefully when [she] walked in." During the course of the evening it snowed "very badly." When plaintiff emerged from the building a few hours later at about 12:40 a.m. her toe "caught" in a snow-covered icy rut about 20 feet from the building and she fell fracturing her wrist. She said that the parking lot was well lit but that she was unable to see the rut beneath the snow.

According to the deposition of Roger Behrmann, defendant had an oral agreement with him to remove snow from the parking lot. Roger Behrmann stated that he had been instructed by Frank Booker, defendant's president and general manager, to remove "what [snow] I can, you know." To remove the snow he used a backhoe "[n]inety per cent of the time." He explained that he removed only the snow because "[y]ou can't get ice," stating that "[i]f it's packed on there, you can just get the top layer." He explained further why he could remove the snow but not the ice:

"Well, if you got snow, and it's packed on there with the cars that's run over it, and they pack it on there, and then turntto [sic] ice later on, and say, then you get another layer of snow. Okay. Then you come in and you try to remove that layer of snow. You don't have no traction with the ice under that snow to get under it to peel it off, you know."

The witness said that Frank Booker was "going to get some cinders at one time, but I don't know if it was before [the date of plaintiff's fall] or after that."

In his deposition Frank Booker stated that if the parking lot is icy and rutted because of tire marks, he does not attempt to remove that ice or to have it removed. He said, "If it is frozen there, I can't remove it." According to the witness, the parking lot was not spread with cinders, salt, ashes or any other material of that kind.

• 1, 2 It is well settled that a property owner is not liable for injury sustained by a business invitee in a fall on any icy sidewalk or parking lot maintained by the property owner for the use of his customers where the accumulation is a natural one and not one caused or aggravated by the property owner. (Timmons v. Turski (1981), 103 Ill. App.3d 36, 430 N.E.2d 1135; Zide v. Jewel Tea Co. (1963), 39 Ill. App.2d 217, 188 N.E.2d 383.) On the other hand, 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 that did not accumulate as a result of natural causes but as the result of the property owner's conduct in creating an unnatural or artificial accumulation of snow and ice. (Smalling v. La Salle National Bank (1982), 104 Ill. App.3d 894, 433 N.E.2d 713; Fitzsimons v. National Tea Co. (1961), 29 Ill. App.2d 306, 173 N.E.2d 534.) Although there is no duty to remove natural accumulations of snow and ice from one's premises, a voluntary undertaking to remove such snow and ice may be the basis of liability if the removal is performed negligently. (DeMario v. Sears, Roebuck & Co. (1972), 6 Ill. App.3d 46, 284 N.E.2d 330.) However, mere removal of snow, which may leave a natural ice formation remaining on the premises, does not of itself constitute negligence. Timmons; 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; Anderson v. Davis Development Corp. (1968), 99 Ill. App.2d 55, 241 N.E.2d 222.

• 3 In the case at bar there is nothing to suggest that anything but ordinary vehicular traffic caused the ruts of which plaintiff complains. There is, for example, no suggestion that the ice upon which plaintiff fell resulted from the drainage of melted snow that was later frozen, as happened in Fitzsimons, upon which plaintiff relies. There the defendant had plowed snow on his parking lot into two large piles, where it remained for about three weeks during a period of alternately thawing and freezing weather. There was evidence that water from the melting snow had run across the defendant's parking lot and had been later frozen into a sheet of ice that was "rutted" with "ridges" made by wheels of automobiles where the plaintiff fell. We find plaintiff's reliance upon Fitzsimons misplaced. As was said in Zide, where the plaintiff likewise relied upon Fitzsimons and where there was, however, no evidence that the plaintiff, who fell upon the defendant's parking lot, had fallen on ice formed from snow that had melted and so drained:

"In the Fitz Simons case, the ice upon which the plaintiff fell was described as `rough and dark,' `rutted' ice, with `ridges' made by wheels of automobiles. In the case at bar, the plaintiff, likewise, described the ice at the place she fell as `heavy, thick, ridged ice.' Beyond the use of these descriptive terms there exists no similarity in the two cases." (39 Ill. App.2d 217, 224, 188 N.E.2d 383, 386.)

So, too, in the case at bar, the similarity between it and Fitzsimons ends with the use of these descriptive terms. In the instant case all that the defendant may be said to have done to cause an unnatural accumulation of snow and ice is to suffer its customers to use its parking lot while snow was upon the ground. In view of the fact that only ordinary vehicular traffic caused the ruts of which plaintiff complains in a place intended for use by such vehicles, we do not think that the ruts resulting from such use may be said to have been an unnatural accumulation of snow and ice created by defendant.

As we have already said, the removal of snow, which may leave a natural ice formation remaining on the premises does not, without more, constitute negligence. Nothing in this record suggests that defendant did more than remove snow and leave what we have deemed to be a natural, rather than an unnatural, ice formation at some time prior to the snowfall on the evening of January 26, 1979. Thus, defendant's conduct in leaving this ice formation did not constitute negligence, and, contrary to plaintiff's assertion here, there was no question of fact on this record as to whether defendant was negligent in the snow removal effort it undertook.

A motion for summary judgment should be granted only where pleadings, depositions, affidavits and other documents demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Erasmus v. Chicago Housing Authority (1980), 86 Ill. App.3d 142, 407 N.E.2d 1031.) Because defendant created no unnatural accumulation of snow and ice by permitting its business invitees to operate motor vehicles in the parking lot provided for their use and because defendant in its snow removal effort may, therefore, be said to have left only a ...


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