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05/03/94 MORGAN J. ORDMAN v. DACON MANAGEMENT CORP.

May 3, 1994

MORGAN J. ORDMAN, INDIVIDUALLY, AND AS ADMINISTRATOR OF THE ESTATE OF MAURICE ORDMAN, DECEASED, PLAINTIFF-APPELLANT
v.
DACON MANAGEMENT CORP. ILLINOIS CORPORATION, AND DACON BOLINGBROOK LIMITED PARTNERSHIP, D/B/A BRENTWOOD APARTMENT DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Will County. No. 91 L 15808. Honorable Herman S. Haase, Judge, Presiding.

Rehearing Denied and Released for Publication June 8, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Present - Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice, Honorable Tobias Barry, Justice

The opinion of the court was delivered by: Barry

JUSTICE BARRY delivered the opinion of the court.

The plaintiff, Morgan J. Ordman filed a negligence action for personal injuries to and the wrongful death of plaintiff's decedent, Maurice Ordman, against the defendants, Dacon Management Corporation and Dacon Bolingbrook Limited Partnership, d/b/a Brentwood Apartments. The circuit court of Will County granted the defendants' motion for summary judgment and plaintiff appeals.

I. Facts

The complaint alleged that on February 2, 1991, the plaintiff's decedent resided at the Brentwood Apartments at 302 Woodcreek Road in Bolingbrook, Illinois and that the defendants owned the apartment complex. The complaint further alleged that the plaintiff's decedent had parked his car in the garage at the apartment complex and had started to leave his garage and walk back toward the entranceway of the complex when he slipped on an accumulation of iceand snow and fell to the ground. The ice and snow was allegedly immediately adjacent to the decedent's garage door.

Count I of the complaint, brought pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1991, ch. 70, par. 1), alleged the following negligent acts or omissions:

"(a) carelessly and negligently placed and permitted mounds of snow and ice adjacent to the doors of the garages at the complex;

(b) carelessly and negligently failed to maintain the premises in a reasonable safe condition;

(c) carelessly and negligently failed to remove ice and snow from the pavement of the parking lot even after it had accumulated to such an extent as to form a dangerous condition;

(d) carelessly and negligently failed to maintain an adequate maintenance program to ensure that the premises were reasonably free of unnatural conditions of ice and snow accumulations; and

(e) carelessly and negligently failed to place gutters and downspouts on the garages of the complex;

(f) carelessly and negligently failed to warn the plaintiff of the hazardous nature of the premises."

Count I of the complaint further alleged that the defendants owed to the plaintiff's decedent the duty to exercise ordinary care to maintain the premises in a reasonably safe condition, and that the defendants' breach of that duty was the direct and proximate cause of plaintiff's decedent's fall resulting in the injuries causing his death. Count II of the complaint, brought under Illinois' Survival Act (Ill. Rev. Stat. 1991, ch. 110 1/2, par. 27-6), alleged the same negligent acts as alleged in Count I. Count II further alleged that during the 35 days following the accident, the plaintiff's decedent experienced great pain and suffering, underwent extensive medical care and suffered significant personal and pecuniary injuries prior to his death.

The defendants filed a Motion for Summary Judgment arguing that they owed no duty to the plaintiff's decedent (Mr. Ordman), contending that the accumulation of ice was not "unnatural" and alleging that they had no notice of the accumulation. In response to the defendants' Motion for Summary Judgment, plaintiff alleged that the defendant had assumed a duty toward Mr. Ordman by undertaking to remove snow and ice from the Brentwood Apartments by contracting with the Kenneth Company to do so. The plaintiff further argued that the defendants were under a duty to provide Mr. Ordman a reasonably safe means of ingress and egress, which they breached by allowing an unnatural accumulation of ice in front of Mr. Ordman's garage and failing to warn Mr. Ordman of the ice.

The plaintiff attached excerpts from the discovery deposition of Coy Hatch, the maintenance superintendent at Brentwood Apartments. Mr. Hatch testified that it was the custom and practice of the Dacon Management maintenance staff to shovel and spread salt any place it would be hazardous to anyone. Mr. Hatch also testified that the snow plowing company would plow the parking lot in front of the garages leaving a strip of snow approximately one foot wide along the front of the garage. He testified that Dacon Management would usually then remove the snow in front of the garage to the side of the garage or the middle of the parking lot in order to get the cars in and out of the garage. According to the National Climatic Data Center's Local ...


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