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April 13, 1994


Appeal from Circuit Court of Sangamon County. No. 89L74. Honorable Richard J. Cadagin, Judge Presiding.

As Corrected May 9, 1994. Petition for Rehearing and/or Certificate of Importance Denied and Released for Publication May 20, 1994.

Honorable Robert W. Cook, J., Honorable Frederick S. Green, J., Honorable Robert J. Steigmann, J.

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Defendant Simmons Airlines, Inc., d/b/a American Eagle, appeals from a jury verdict finding Simmons liable for plaintiff MarthaSheffer's injuries, incurred when Sheffer alighted from a Simmons aircraft and slipped and fell on a patch of ice on her way to the airport terminal. We reverse and remand.

On February 20, 1988, plaintiff flew from Fort Wayne, Indiana, to Chicago and then to Springfield, where she was to preside over a business meeting at 1 p.m. at the Holiday Inn South. It was snowing in Fort Wayne and sleeting in Chicago, but when plaintiff got off the plane in Springfield it was bright and sunny. A Simmons employee stationed at the bottom of the airstairs motioned to and identified Gate 4. As plaintiff walked across the tarmac and approached Gate 4, some 75 yards from the aircraft, she slipped and fell on a patch of ice approximately 15 to 20 feet in diameter. An airport employee helped plaintiff up and accompanied her into the terminal.

Plaintiff went to the hospital in Springfield after her meeting then saw her family physician two days later when she returned to her home in Pennsylvania. He prescribed pain pills and rest. In March 1988 plaintiff visited a chiropractor for several months. Because the pain in her neck and shoulder did not subside, plaintiff went to a neurologist in September 1988. The neurologist referred plaintiff to a neurosurgeon who suggested conservative therapy and surgery. Plaintiff refused surgery and followed through with conservative therapy until February 1993, when she agreed to surgery.

At trial, Simmons moved for a directed verdict at the close of plaintiff's evidence and at the close of all the evidence, on the basis that Simmons owed no duty to warn about or remove a natural accumulation of ice. Both motions were denied.

The jury was instructed that Simmons was required to use the highest degree of care "consistent with the mode of conveyance used and the practical operation of its business as a common carrier by air." In addition, the jury was instructed that Simmons' failure to, alternatively (1) post an airline employee at the door to Gate 4; (2) warn plaintiff of the icy area; (3) barricade the icy area; (4) post a sign warning of the icy area; (5) spread urea on the icy area; or (6) direct plaintiff around the icy area was a proximate cause of plaintiff's injuries. The jury returned a verdict in favor of plaintiff in the amount of $301,376 for aggravation of a preexisting condition, disability, past and future pain and suffering, medical expenses and lost earnings. After determining plaintiff was 5% contributorily negligent, the jury reduced the amount of damages to $286,308. The jury subsequently apportioned 80% of the liability to Simmons and 20% to the Springfield Airport Authority (Authority). Simmons filed a post-trial motion, which the court denied. This appeal followed.

There can be no recovery in tort for negligence unless the defendanthas breached a duty owed to the plaintiff. ( Schoondyke v. Heil, Heil, Smart & Golee, Inc. (1980), 89 Ill. App. 3d 640, 643, 411 N.E.2d 1168, 1171, 44 Ill. Dec. 802, citing Barnes v. Washington (1973), 56 Ill. 2d 22, 305 N.E.2d 535.) The existence of a duty is a question of law to be determined by the court. ( Schoondyke, 89 Ill. App. 3d at 643, 411 N.E.2d at 1171, citing Mieher v. Brown (1973), 54 Ill. 2d 539, 301 N.E.2d 307; Watson v. J.C. Penney Co. (1992), 237 Ill. App. 3d 976, 981, 605 N.E.2d 723, 726, 178 Ill. Dec. 929; Jones v. Chicago & Northwestern Transportation Co. (1990), 206 Ill. App. 3d 136, 139, 563 N.E.2d 1120, 1122, 151 Ill. Dec. 14.) Questions regarding whether that duty was properly performed, however, are reserved for the trier of fact. Jones, 206 Ill. App. 3d at 139, 563 N.E.2d at 1122; Serritos v. Chicago Transit Authority (1987), 153 Ill. App. 3d 265, 269, 505 N.E.2d 1034, 1037, 106 Ill. Dec. 243.

In Illinois, in the absence of a contractual obligation, there is no duty with respect to natural accumulations of snow and ice. ( American States Insurance Co. v. A.J. Maggio Co. (1992), 229 Ill. App. 3d 422, 425, 593 N.E.2d 1083, 1085, 171 Ill. Dec. 263.) Specifically, the natural accumulations rule states a business owner owes no duty to business invitees to remove accumulations of snow and ice from areas maintained for the use of those invitees where the accumulations are natural and not caused or aggravated by the owner. ( American States, 229 Ill. App. 3d at 425, 593 N.E.2d at 1085; Watson, 237 Ill. App. 3d at 978, 605 N.E.2d at 724; Serritos, 153 Ill. App. 3d at 269, 505 N.E.2d at 1037-38.) Even where a person voluntarily removes snow, he does not owe a duty to remove natural accumulations of ice underneath the snow. ( Watson, 237 Ill. App. 3d at 978, 605 N.E.2d at 725.) To raise properly the issue of breach, plaintiff must show the ice upon which she fell was an unnatural accumulation caused by Simmons. See Crane v. Triangle Plaza, Inc. (1992), 228 Ill. App. 3d 325, 330, 591 N.E.2d 936, 940, 169 Ill. Dec. 432.

Here, the Authority had contracted with Simmons that the Authority would remove accumulations of ice and snow. The Authority agreed to maintain the airport facilities in a safe, workable, clean and sanitary condition, "including such clearing and removal of snow and ice as is reasonably necessary to permit operations." Evidence was presented at trial that the Authority gave Simmons urea, a chemical for melting snow and ice, and Simmons may have used this urea on an emergency basis. Plaintiff erroneously asserts Simmons' possession and prior emergency use of urea was a voluntary undertaking of the duty to remove snow and ice which confirms Simmons' liability. Even if Simmons, rather than the Authority, voluntarily removed snow from the tarmac, Simmons' only duty would have been to remove natural accumulations of snowand ice in a nonnegligent fashion. ( Crane, 228 Ill. App. 3d at 329, 591 N.E.2d at 939-40.) Absent evidence Simmons removed that snow or ice negligently, Simmons could not incur liability for plaintiff's fall and injuries. See Crane, 228 Ill. App. 3d at 330, 591 N.E.2d at 940; American States, 229 Ill. App. 3d at 425-26, 593 N.E.2d at 1085.

Due to the unique control it possesses over its passengers' safety, a common carrier owes its passengers the highest duty of care consistent with the practical operation of its conveyances. ( Rotheli v. Chicago Transit Authority (1955), 7 Ill. 2d 172, 177-78, 130 N.E.2d 172, 175; Jones, 206 Ill. App. 3d at 138, 563 N.E.2d at 1121; Shoemaker v. Rush-Presbyterian-St. Luke's Medical Center (1989), 187 Ill. App. 3d 1040, 1045, 543 N.E.2d 1014, 1017, 135 Ill. Dec. 446; Serritos, 153 Ill. App. 3d at 270, 505 N.E.2d at 1038.) That duty continues until the passenger has left the carrier and the place where passengers are discharged. The carrier is bound to furnish the passenger an opportunity to safely alight from the conveyance and reach a place of safety. ( Katamay v. Chicago Transit Authority (1972), 53 Ill. 2d 27, 30, 289 N.E.2d 623, 625; Shoemaker, 187 Ill. App. 3d at 1045, 543 N.E.2d at 1017.) However, despite that heightened duty of care, a common carrier has no duty to clean up natural accumulations of snow, ice and water. ( Shoemaker, 187 Ill. App. 3d at 1045, 543 N.E.2d at 1017; Serritos, 153 Ill. App. 3d at 271-72, 505 N.E.2d at 1039.) Where the accumulation is found to be natural, the carrier also has no duty to warn of the condition created by that accumulation. Serritos, 153 Ill. App. 3d at 272, 505 N.E.2d at 1039; Walker v. Chicago Transit Authority (1980), 92 Ill. App. 3d 120, 123, 416 N.E.2d 10, 13, 48 Ill. Dec. 115.

Arguments can be made that a common carrier's duty of highest care should prevail over the natural accumulations rule. However, Serritos and Shoemaker held that the natural accumulations rule should prevail, and we choose to follow those decisions. The natural accumulations rule may be arbitrary in some situations (see Watson, 237 Ill. App. 3d at 982, 605 N.E.2d at 727 (Knecht, J., Dissenting) (jury should decide whether parties acted reasonably)), but overall the ...

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