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07/25/89 Donna Mccarthy, v. Hidden Lake Village

July 25, 1989





542 N.E.2d 868, 186 Ill. App. 3d 752, 134 Ill. Dec. 522 1989.IL.1143

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


JUSTICE SCARIANO delivered the opinion of the court. BILANDIC, P.J., and EGAN,* J., concur.


This action arises from a fall sustained by the plaintiff, Donna McCarthy, on the driveway at 1066 Hidden Lake Drive in Buffalo Grove, Illinois. Defendant, L & F Maintenance Company , which provided snow removal services for the driveway, was awarded summary judgment against plaintiff, who now appeals.

From September 1983 through July 1985, plaintiff resided at the above address in a condominium owned by her fiance located in a development controlled by the Hidden Lake Village Condominium Association (the Association), which maintained the driveways and common walks. The Association had an oral contract with L & F for snow plowing whenever there was a snowfall of two inches or more. In his deposition, the owner of L & F testified that he was satisfied with the performance of a particular job if he could see the concrete on the entire driveway.

On January 24, 1984, L & F plowed the driveway in front of the garage at 1066 Hidden Lake Drive. Three days later, plaintiff backed her car out of the garage and onto the driveway; she then stopped the car, and got out in order to close the garage door. Steadying herself on the car, she walked alongside it up to the garage door, a distance of about 18 inches. She closed the door and was returning to her car when she slipped and fell.

Plaintiff fell when she was next to the left front wheel of her car, in an area of the driveway adjacent to the lawn upon which L & F had pushed the snow, thereby creating snow banks. According to plaintiff's deposition testimony, she was not walking on a flat plowed surface, but was on the edge of a snow and ice embankment which extended "six to twelve inches into the driveway itself . . . [and] had the snow been pushed over another eight to twelve inches, the sloping edge wouldn't have been there; and it would have been a flat surface."

Defendant moved for summary judgment on two grounds: first, that it was under no duty to remove unnatural accumulations of ice and snow, and second, that plaintiff's sole cause of action was limited to the Association.

Plaintiff's response to L & F's motion for summary judgment included the affidavit of Henry L. Mikolajczyk, an architect for nearly 50 years and professor of architecture at the University of Illinois at Chicago since 1949. Mikolajczyk's opinion was that the failure to plow the driveway from end to end contributed to the unnatural accumulation of snow and ice which was present at the time of plaintiff's fall, and that this unnatural accumulation caused her fall. Mikolajczyk reviewed the National Weather Service reports, which indicated that during the three days preceding plaintiff's fall, the temperature fluctuated above and below the freezing point, until it remained below the freezing point on the day of her fall. He concluded that this weather pattern would have caused the embankments to alternately melt and refreeze, thereby forming an unnatural accumulation of ice in the area where plaintiff fell.

The trial Judge granted summary judgment against plaintiff, holding that "no duty was owed by defendant L & F Maintenance Company to plaintiff to clear the entire driveway of snow and ice."

Section 2-1005 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par 2-1005) provides that summary judgment is appropriate "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Summary judgment is a remedy to be awarded with some caution so as not to preempt the right to a jury trial or the right to fully present the factual basis of a case wherein a material dispute may exist. (Ruby v. Wayman (1968), 99 Ill. App. 2d 146, 149-50, 240 N.E.2d 699.) Moreover, a motion for summary judgment raises the primary issue of whether the non-movant has presented any evidence giving rise to a genuine issue of material fact. (Malawy v. Richards Manufacturing Co. (1986), 150 Ill. App. 3d 549, 570, 501 N.E.2d 376, appeal denied (1987), 114 Ill. 2d 547, 508 N.E.2d 729.) And although summary judgment is an expeditious method of disposing of a lawsuit, it should be allowed only when the right of the moving party is clear and free from any doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) The court must consider all of the evidence before it and construe such evidence strictly against the movant and liberally in favor of the nonmovant. Purtill, 111 Ill. 2d at 240.

Plaintiff argues that the record here indicates that she had to hold on to her car to steady herself on an ice and snow embankment in the area that she customarily used to walk back and forth from her car to the garage; that the pathway she used was the only way she could reasonably be expected to get to and from her garage door; that the embankment extended 6 to 12 inches into the driveway, and had it been pushed farther into the lawn she would not have been forced to walk on the embankment; that defendant's president admitted that proper plowing required exposure of all of the concrete in a driveway, from which it can be reasonably inferred that the driveway had to be plowed end to end; and that there was evidence of a temperature pattern that would have caused ...

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