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06/20/88 Zadie Wells, v. Great Atlantic & Pacific

June 20, 1988

ZADIE WELLS, PLAINTIFF-APPELLANT

v.

GREAT ATLANTIC & PACIFIC TEA COMPANY, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

525 N.E.2d 1127, 171 Ill. App. 3d 1012, 121 Ill. Dec. 820 1988.IL.974

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

JUSTICE MANNING delivered the opinion of the court. CAMPBELL, P.J., and BUCKLEY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

This appeal stems from an order of the circuit court of Cook County denying plaintiff's motion to vacate the summary judgment entered in favor of the defendant, Great Atlantic and Pacific Tea Company . Plaintiff contends that the trial court erred in granting defendant's motion for summary judgment and that the court's refusal to vacate that order constitutes an abuse of discretion.

For the reasons which follow, we affirm the decision of the trial court. On February 7, 1982, plaintiff Zadie Wells (Zadie) slipped and fell on a patch of ice in A&P's parking lot. She filed a two-count complaint against A&P and Robert Vasser (Vasser), who had been hired by A&P to remove snow from the parking lot. In her complaint she alleges that the defendants negligently: (1) failed to maintain the parking lot in a safe condition; (2) failed to properly remove ice and snow from the parking lot; (3) created an unsafe condition through the negligent alteration of ice and snow; and (4) failed to warn the public of the unsafe condition.

In 1985 A&P moved for summary judgment. The pleadings and exhibits filed in support of and in opposition to the motion establish the following factual matrix: On February 7, 1982, plaintiff was walking across the A&P parking lot with a friend when she slipped on snow-covered ice and fell. At that time there was approximately two to three inches of snow covering the ice. Plaintiff had lived across the street from the A&P parking lot where she fell for several years. On the date of her accident, there were piles of snow around the perimeter of the lot that had been there for five to six weeks as a result of snowplowing operations in the lot.

In her deposition Neddie Lemmons testified that she was walking with the plaintiff through A&P's parking lot when the plaintiff slipped and fell. She said the surface of the lot was spotted with ice and slightly rutted, and in the area where the fall occurred, there were speckles of snow over the ice. There were banks of snow around the edge of the parking lot that were there as a result of plowing done in the lot.

Plaintiff's expert, Charles Baule, stated in his affidavit that he had examined the parking lot in question and that it pitched toward the center of the lot. It was his opinion that if the snow were plowed in banks around the perimeter of the lot, during alternate periods of freezing and thawing the snow would melt and the water runoff could result in flat sheets of ice forming in the area where the plaintiff fell.

The climatological data showed that on January 31, 1982, there was a snowfall of 5.4 inches in the Chicago area and that on February 5, 1982, there was a snowfall of 2.6 inches. There had been 13 days between January 1, 1982, and February 7, 1982, the date of the accident, on which the temperature went above the freezing mark, but the temperature did not rise over 32 degrees between January 31, 1982, and February 7, 1982.

Based on this evidence, the trial court held that the plaintiff failed to establish that the ice in question was an unnatural accumulation and granted summary judgment in favor of A&P. Plaintiff filed a motion for reconsideration supported with an amended affidavit of her expert as well as a motion to file a second amended complaint which contained new allegations of negligence. On rehearing, the trial court refused to consider the amended affidavit and denied both motions.

On appeal plaintiff alleges that summary judgment was improperly granted. First, because a question of fact exists as to whether the ice was an unnatural accumulation caused by the excessive slope of the parking lot combined with the manner in which the snow was plowed, and second, because a question of fact exists as to whether the defendants were negligent in their snow-removal activities.

In order to defeat a motion for summary judgment in a slip-and-fall case, the plaintiff must affirmatively show that the accumulation of ice, snow or water is due to an unnatural accumulation and that the property owner had actual or constructive knowledge of the condition. (Gilberg v. Toys "R" Us, Inc. (1984), 126 Ill. App. 3d 554, 557, 467 N.E.2d 947.) When a plaintiff alleges that the design of a sloping surface created an unnatural accumulation of ice, there must be evidence presented of the dangerous nature of the slope, that the slope was the proximate cause of the plaintiff's injuries and that the landowner had notice of the defect. (Davis v. City of Chicago (1972), 8 Ill. App. 3d 94, 97, 289 N.E.2d 250.) Once such evidence has been produced, the issue ...


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