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03/28/88 Marianne Eichler Et Al., v. Plitt Theatres

March 28, 1988

MARIANNE EICHLER ET AL., PLAINTIFFS-APPELLANTS

v.

PLITT THEATRES, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

521 N.E.2d 1196, 167 Ill. App. 3d 685, 118 Ill. Dec. 503 1988.IL.438

Appeal from the Circuit Court of Kane County; the Hon. Michael O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. HOPF and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Plaintiff Marianne Eichler brought suit for damages sustained due to injuries received when she slipped and fell on snow and ice. Her husband, Fred Eichler, brought suit for loss of consortium. The trial court entered summary judgments in favor of defendants on plaintiffs' fifth amended complaint. We reverse in part and affirm in part.

The facts of this case are not in dispute. On January 26, 1985, plaintiffs went to the Fox Valley Shopping Center to see a movie at the Plitt Movie Theatres. On that evening, the parking lot where plaintiffs parked was covered with ice. As plaintiffs were walking across what is known as the "North Parking Parcel," Marianne Eichler slipped and fell on the ice and as a result sustained personal injuries. Plaintiffs concede that there was no unnatural accumulation of snow or ice at the time of the fall.

At the time of the fall, defendant Urban/JMB Group Trust II Partnership (Urban) was the beneficial owner of La Salle National Bank trusts Nos. 47699 (Urban trust I) and 52471 (Urban trust II). Defendant Allen Hutensky Associates (Hutensky) was the beneficial owner of La Salle National Bank trust No. 101293 (Hutensky trust). (We note that Hutensky was incorrectly sued as "Alan Hausky & Associates.") The above-mentioned trusts were the owners of several contiguous parcels of land at the Fox Valley Shopping Center which were used for parking. The "North Parking Parcel" in which Marianne Eichler fell was owned by Urban trust II. The Urban trusts entered into an easement agreement (easement agreement) with the Hutensky trust concerning their various rights with regard to these parcels of land. The agreement provided in pertinent part:

"Each party agrees that its obligation to maintain the Parking Facilities on its Parcel or Parcels . . . shall consist of repairing, maintaining and reconstructing the Parking Facilities so as to keep same in a clean, sightly and safe condition consistent with and similar to the Fox Valley Shopping Center Parking Facilities and shall include, but not be limited to, the prompt removal of all paper, debris, refuse, snow and ice . . .."

The easement agreement also provided:

"The parties agree and acknowledge that their respective rights under this Agreement are not subject to satisfaction by monetary damages, and thereby agree that specific performance by way of injunctive relief is the only method of securing such rights under this Agreement . . .."

Shortly after the easement agreement was entered into, a lease agreement, which was in effect at the time of the fall, was entered into between Urban trust II and defendant Plitt Theatres, Inc. (Plitt). The lease agreement provided that Urban trust II granted and Plitt accepted Urban trust II's rights and obligations under the easement agreement.

Also at the time of the fall, defendant Welhausen Landscape Company (Welhausen) had contracted with Urban to perform snow plowing and snow removal (Welhausen agreement).

The general rule, which plaintiffs do not dispute, is that there is no duty to remove natural accumulations of snow and ice. Galivan v. Lincolnshire Inn (1986), 147 Ill. App. 3d 228, 229; Bakeman v. ...


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