APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
540 N.E.2d 957, 184 Ill. App. 3d 847, 133 Ill. Dec. 91 1989.IL.904
Appeal from the Circuit Court of Cook County; the Hon. Howard L. Fink, Judge, presiding.
JUSTICE COCCIA delivered the opinion of the court. MURRAY, P.J., and LORENZ, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE COCCIA
On February 6, 1985, plaintiff Janice Weber, together with her friend, were patrons of defendant's restaurant. Weber brings this suit for damages resulting from the serious personal injuries which she allegedly sustained while traversing defendant's parking lot on her way back to their car following dinner. She alleges that her injuries were proximately occasioned by inadequate lighting, causing her to slip and fall due to a hazard found in defendant's parking lot, which consisted of a natural accumulation of ice or snow. The fall took place in the darkness of night, save for the existence of some illumination in the parking lot, which she alleges to have been inadequate. She further claims that because of the inadequacy of illumination she was unable to see and discover the presence of the potential hazard, and that as a proximate cause of such alleged inadequate illumination she fell and sustained severe injuries.
Defendant asserted that the existence of the natural accumulation of the ice or snow was, in fact, the defect which occasioned the plaintiff to fall, and it predicated its motion for summary judgment principally on this theory. The defendant additionally claimed that since the ice or snow involved arose from a natural accumulation, there was no duty to warn against such hazards.
We respectfully disagree with the trial Judge and reverse and remand this cause for trial. It is our view that there exists a genuine issue of material fact in this case, thus rendering summary judgment inappropriate. Plaintiff is entitled to have her cause of action tried by a jury in order that they may resolve the true issue of this case, that of whether the existing illumination in the parking lot at the time of plaintiff's fall was inadequate to permit her to discover the hazard which occasioned her fall, and that such alleged inadequacy was the proximate cause of her fall and serious injuries.
It is not accurate to assume that the underlying cause of action is predicated upon a claim for injuries arising as a result of a slip and fall on a natural accumulation of ice or snow. The charge against the defendant is that the parking lot, wherein plaintiff and her friend were legally and properly parked for the purposes of enjoying a dinner at defendant's restaurant, was so inadequately illuminated that the plaintiff could not and did not discern the hazards which caused her to slip and fall. The existence of allegedly inadequate illumination, which if substantiated as a proximate cause of her fall, removes defendant from the safeguard of claiming that the law does not afford the plaintiff a remedy for injuries occasioned as a consequence of slipping on a natural accumulation of ice or snow.
It is our view that the holding in Walker is clearly distinguishable and consequently inapplicable to our case. In Walker the court held that there was no duty, and consequently no liability, for injuries sustained as a result of the presence of naturally accumulated water. There is no argument with this concept. The Walker case, however, never dealt with the issue of whether inadequate illumination precluded the discovery of the hazard, namely the natural accumulation of water. Rather, the underlying issue went to the question of whether the floor, allegedly sloped and uneven, permitted the unnatural accumulation of water. The Walker court dismissed this theory for the reason that there was no expert testimony introduced in support thereof.
The majority of the court in Newcomm adhered to the principle that absent any evidence that the ice or snow was the result of an unnatural or artificial accumulation thereof, the only inference was that it was a natural accumulation, and if so defendant was under no duty to warn against the hazards thereof, by way of illumination or otherwise. Thus, it could not have been a proximate cause of plaintiff's injuries.
We disagree with the Newcomm majority for the reason that it assumed that the underlying cause of action was based upon a natural accumulation of ice or snow. This is simply not the fact in our case. The cause of action here is based on alleged inadequate lighting as the proximate cause of plaintiff's fall and subsequent injuries. We agree with the Dissent in Newcomm, which argued that the majority's Conclusion was inconsistent with precedent in this State, and inconsistent with the theory upon which that case was tried.
In our case, plaintiff's companion attested to the existence of poor lighting in the parking lot where their car had been parked. The plaintiff in her answers to written interrogatories swore to the truth of the fact that there was evidence of poor lighting in the parking lot. Further, in her deposition, plaintiff attested to the fact that at the time of the fall it was dark out, and there was only one light illuminating the parking lot, and it was located in the back of the corner of the building. She testified that she did not see the patch of ice upon which she slipped, as it was dark.
In the face of this evidence, it was clear that the plaintiff was entitled to present these facts to a jury of her peers so that they could hear, weigh, and determine the credibility of her evidence, and evaluate whether it supported her theory regarding the adequacy of the illumination. There was no credible evidence of adequate illumination introduced by the defendant in support of its motion for summary judgment. Defendant relied solely on the concept that the presence of a natural accumulation ...