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06/16/94 JOHN YETTE v. CASEY'S GENERAL STORES

June 16, 1994

JOHN YETTE, PLAINTIFF-APPELLANT,
v.
CASEY'S GENERAL STORES, INC., A CORPORATION, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Douglas County. No. 92L28. Honorable Art Powers, Jr., Judge Presiding.

As Corrected July 15, 1994. Petition for Rehearing and Released for Publication July 19, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, P.j., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

On December 22, 1992, plaintiff, John Yette, sued defendant, Casey's General Stores, Inc., for injuries he sustained on December 22, 1990, when he fell on an icy sidewalk adjacent to the premises ownedby defendant. The complaint alleged that defendant had cleared and salted its parking lot but negligently failed to salt or remove the ice from the sidewalk in front of its doorway. On defendant's motion, the complaint was dismissed without prejudice.

In April 1993, more than two years after the date of the occurrence, plaintiff filed an amended complaint in two counts. Count I essentially restated the allegations of the original pleading, adding that defendant made "ineffectual attempts" to salt the sidewalk. Count II alleged that the building's siding was designed to facilitate the runoff of rain, snow, and ice and that this condition, together with the absence of eaves, troughs, or gutters, allowed an unnatural accumulation of ice to collect on the sidewalk. Defendant filed a motion to dismiss count I based upon the absence of an allegation that defendant caused an unnatural accumulation of ice or snow. Defendant also moved to dismiss count II on the grounds that (1) it was barred by the two-year statute of limitations (see 735 ILCS 5/13-202 (West 1992)), and (2) it failed to allege an occurrence relating back to the original complaint. The court granted the motion to dismiss but permitted plaintiff to file a second-amended complaint. Instead of amending his complaint, plaintiff filed a motion to reconsider. Following a hearing, the court denied the motion. Plaintiff appeals, and we affirm.

I. PLAINTIFF'S CLAIM THAT DEFENDANT NEGLIGENTLY FAILED TO SALT ITS SIDEWALK

Plaintiff first argues that the trial court erred in dismissing count I of his amended complaint for failure to state a cause of action. (See 735 ILCS 5/2-615 (West 1992).) In count I, plaintiff alleged only that defendant failed to adequately salt the area of the sidewalk where he slipped and fell. Citing Cupp v. Nelson (1972), 5 Ill. App. 3d 37, 282 N.E.2d 513, he argues that the law provides that salting some areas of the premises but not others constitutes a negligent removal attempt. We disagree.

In Cupp, the defendant landlord admitted that he owed a duty to maintain the premises in a reasonably safe condition. When the plaintiff proved she slipped and fell on an icy stair tread which the defendant had not salted, the only issue was whether the defendant had been negligent in fulfilling that duty. Cupp, 5 Ill. App. 3d at 40-41, 282 N.E.2d at 516-17.

The rule in Illinois, which applies to this case, is that a business owner owes no duty to invitees to remove natural accumulations of ice and snow. However, when he chooses to do so, he has a duty not to cause unnatural accumulations. Watson v. J.C. Penney Co. (1992), 237 Ill. App. 3d 976, 978, 605 N.E.2d 723, 724-25, 178 Ill. Dec. 929.

In this case, count I merely alleges that defendant failed to salt the ice on some areas of its premises although defendant salted other areas. However, plaintiff does not allege an unnatural accumulation resulting from defendant's selective salting of the premises. Accordingly, count I of the amended complaint failed to state a cause of action, and the trial court properly dismissed it.

II. PLAINTIFF'S CLAIM THAT HIS AMENDED COMPLAINT RELATED BACK TO HIS ORIGINAL COMPLAINT

Plaintiff next argues the trial court erred in dismissing count II of his amended complaint as untimely for failure to relate back to the date of the original pleading. Although actions based on personal injuries must be filed within two years after the cause of action accrued (see 735 ILCS 5/13-202 (West 1992)), an amendment will relate back to the filing of the original complaint if (1) the original pleading was timely filed, and (2) the original and amended pleadings indicate the cause of action grew out of the same transaction or occurrence set forth in the original pleading. 735 ILCS 5/2-616(b) (West 1992); Wolf v. Meister-Neiberg, Inc. (1991), 143 Ill. 2d 44, 46, 570 N.E.2d 327, 329, 155 Ill. Dec. 814.

Because plaintiff's cause of action accrued on December 22, 1990, his time for filing a complaint based upon that cause expired on December 22, 1992, the date in fact he filed his original complaint. Count II of the amended complaint, filed in April 1993, is therefore barred unless it relates back to the occurrence set forth in plaintiff's original complaint. Illinois courts are liberal in allowing amendments to pleadings after the running of a statute of limitations, reflecting a policy which favors the resolution of disputes on the merits. See Zeh v. Wheeler (1986), 111 Ill. 2d ...


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