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10/07/88 Hazel Webb, v. Charles Morgan Et Al.

October 7, 1988

HAZEL WEBB, PLAINTIFF-APPELLEE

v.

CHARLES MORGAN ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

531 N.E.2d 36, 176 Ill. App. 3d 378, 125 Ill. Dec. 857 1988.IL.1512

Appeal from the Circuit Court of St. Clair County; the Hon. Roger Scrivner, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. LEWIS and CALVO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

On December 27, 1981, Hazel Webb, plaintiff, suffered injuries when she slipped and fell on ice in a mobile home park in Springfield, Illinois. The plaintiff subsequently brought suit in the circuit court of St. Clair County to recover damages from Harold Harris, the defendant, who was doing business as Vicksburg Mobile Home Park, for his alleged negligence in creating an unnatural accumulation of ice and snow on the park's common parking area, and from Charles Morgan, the codefendant and the plaintiff's brother, for his alleged negligence in failing to use reasonable care to keep the walkways on his property safe and in failing to warn the plaintiff of the dangerous condition of the walkway. The circuit court held a jury trial from May 18 through May 21, 1987. At the close of the plaintiff's case, the court entered a directed verdict in favor of the codefendant. The jury found the defendant negligent and found that his negligence caused 80% of the plaintiff's injuries. The jury determined that the plaintiff suffered damages of $101,350, and the trial court entered judgment for the plaintiff and against the defendant for $81,080. The defendant appeals. We affirm.

Robert Webb, the husband of the plaintiff; Kenneth and Pauline Brown, friends of the plaintiff; and the plaintiff drove from Belleville, Illinois, to Springfield on December 27, 1981, to visit the codefendant and his wife Clara Morgan. The co-defendant rented and lived at lot number 20 in the Vicksburg Mobile Home Park in Springfield. The Webbs and the Browns arrived at the codefendant's home in the morning before noon, while the sun was shining and the temperature was in the mid-thirties Fahrenheit. The Webbs and the Browns stayed at the codefendant's home until about 5 p.m., when they received warnings of an impending snowstorm. When the group decided to leave, Mr. Webb retrieved his car, parked about 150 to 200 feet from the codefendant's home, and drove back to pick up the other members of his party. While walking to meet the car, the plaintiff slipped and fell on the driveway that served as a common parking area for the codefendant's home and three other mobile homes in the park. At the time of her fall, the plaintiff wore low-heeled shoes with rubber soles and apparently had no difficulty walking.

Prior to the plaintiff's fall, the defendant's sons, Eric and David Harris, plowed the snow off of the common parking area using a tractor with a snow blade and piled the snow in mounds along the edge of the parking area. These mounds of snow had apexes of up to 2 1/2 feet. Eric and David did not spread salt or cinders on the parking area. Eric and David plowed the snow on December 18, 1981, and again on or about December 20, 1981. Eric testified that he was aware that, after a rainfall, the water flowed downhill towards the parking area, and testified that he thought that the runoff from the snow would flow in the same direction. The co-defendant testified that in December of 1981, the snow on the mounds would melt during the day when the sun was out and the water would then flow across the parking area and refreeze when the temperature fell during the night, causing a slick condition. Clara Morgan, the codefendant's wife, testified that she had complained to Mrs. McDevott, the woman who collected the rent, about the slick condition of the parking area before the plaintiff's slip and fall, but that the defendant had done nothing to remedy the situation. Kenneth Brown testified that it appeared to him that the snow on the mounds had melted and run down onto the common parking area, making it slick. The plaintiff testified that she fell because of this icy condition of the lot.

Richard Flaskamper, a municipal engineer, and Gary Mackey, the supervisor of road systems for the St. Clair County Highway Department, testified as expert witnesses for the plaintiff. Both men had many years of experience in snow removal. Each testified that the proper way to plow snow on a parking lot with a downhill grade is to plow from the top of the grade to the bottom in order to prevent the snow from alternately thawing, draining to the parking lot, and refreezing, which could create a hazardous condition. Gary Mackey testified that a major problem with snow removal is that the piled snow melts and refreezes, and that the only way to combat that problem is to either remove the snow to a new location or to treat the snow with salt and cinders. He testified that there are no standards for snow removal and that the primary consideration in snow removal is to create a safe means of travel for the public.

Fred Stone, Jr., a civil engineer and surveyor, testified that it was his expert opinion that the common parking area where the plaintiff fell had a downward slope of 2% and that water flowing down that parking area would have a tendency to collect and puddle in the area where the plaintiff fell. He stated that this accumulation of water is contrary to the natural flow in that area.

Counsel for the plaintiff introduced a weather report into evidence which showed that the temperature rose during the day and subsequently fell in the evening. This exhibit indicated that the temperature on that day ranged between a high of 41 degrees Fahrenheit and a low of 19 degrees Fahrenheit.

At the close of the plaintiff's evidence, the trial court granted the codefendant's motion for a directed verdict. During closing arguments, the plaintiff's counsel argued to the jury that the defendant caused the accident by negligently piling the snow so that the runoff from the piles ran downhill onto the parking area and froze. The jury found the defendant negligent and determined that his negligence caused 80% of the plaintiff's injuries. The jury determined that the plaintiff suffered damages of $101,350. The trial court then entered a judgment for the plaintiff and against the defendant for $81,080. The defendant appeals.

The defendant presents three issues for review: (1) whether the jury could find him liable as a matter of law, and if so, whether the plaintiff proved a prima facie case against him for the negligent removal of ice and snow; (2) whether the plaintiff joined the codefendant in good faith and with probable cause for the purpose of obtaining a judgment against him and not solely to fix venue in St. Clair County; and (3) whether the codefendant's alleged residence in East St. Louis, Illinois, made venue proper in St. Clair County.

The defendant initially contends that the jury could not find him liable for the plaintiff's injuries as a matter of law. He asserts that he was not negligent as a matter of law because he owed no duty to the plaintiff to remedy a natural accumulation of ice and snow. He contends that even if this court holds otherwise, the evidence, viewed most favorably to the plaintiff, fails to show that he acted negligently. He also argues that the plaintiff failed to prove that his conduct was the proximate cause of her injuries, because she failed to prove that her fall was due to the presence of ice on the pavement.

The general rule in Illinois is that a property owner owes no common law duty to remove natural accumulations of ice and snow from common areas which remain under his control and thus cannot be found liable for injuries resulting from a natural accumulation of ice and snow. (Chisolm v. Stephens (1977), 47 Ill. App. 3d 999, 1004, 365 N.E.2d 80, 84.) However, when the property owner chooses to remove ice and snow, he is charged with the duty of exercising ordinary care in the accomplishment of that task. (Sims v. Block (1968), 94 Ill. App. 2d 215, 222, 236 N.E.2d 572, 575.) The property owner, then, has no duty to remedy a natural accumulation of ice and snow. His duty is to prevent an unnatural accumulation on his property, whether that accumulation is the direct result of the owner's clearing of the ice and snow, or is caused by design deficiencies that promote unnatural accumulations of ice and snow. (Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 145, 407 N.E.2d 1031, ...


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