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Bloom v. Bistro Restaurant Limited Partnership

March 31, 1999


The opinion of the court was delivered by: Presiding Justice South

Appeal from the Circuit Court of Cook County. Honorable JENNIFER DUNCAN-BRICE, Judge Presiding.

Plaintiff, Lauri Bloom, filed this personal injury lawsuit against defendants, American Invsco Realty, Inc. and Invsco Management Company (INVSCO), and Bistro Restaurant Limited Partnership. Plaintiff alleged in her complaint that she suffered injuries after being struck by falling ice from a building located at 110 East Pearson in Chicago, Illinois, that defendant INVSCO managed and where defendant Bistro's restaurant was located. Plaintiff appeals from the trial court's grant of summary judgment in favor of defendants. The sole issue presented on appeal is whether the court improperly granted summary judgment for the defendants.

On January 27, 1994, plaintiff dined at the Bistro with three other people. The restaurant was located on the main floor of a high-rise building owned and managed by INVSCO. After the meal, plaintiff waited inside the vestibule while her companion went outside to retrieve their car from the valet. She exited the restaurant when the car pulled up and stood under the canopy that covers the entrance to the restaurant. While standing under this canopy, plaintiff was struck on the head and shoulder and knocked to the ground by a slab of ice. She never saw this ice before she was struck. When she looked to the ground, she saw that the piece of ice was about a foot long and one to two inches thick. An ambulance transported her to the hospital, where she was treated for her injuries.

Tim Burke, a waiter at the restaurant, saw plaintiff being struck by the piece of ice as he was serving customers but did not see from where the ice had fallen. He did not see any ice fall before the incident. However, he later went outside to try and determine from where the ice had fallen and saw four identical protrusions on the building. All of the protrusions except one had four-foot-long ice formations on them. The one protrusion that did not have an ice formation on it was located directly above the restaurant entrance where plaintiff was struck.

Andrew Smith, the floor manager in the restaurant that night, heard a commotion and went outside, where he saw plaintiff on the ground. He observed a hole in the awning but saw no other ice falling through it.

Plaintiff filed a complaint alleging negligence, nuisance and res ipsa loquitur against Bistro, Inland Property Management, Inc., and North Michigan Avenue Limited Partnership. Plaintiff voluntarily dismissed Inland and North Michigan. Plaintiff then filed a first amended complaint which added claims against Mid-America Management Group, Inc., LaSalle National Trust and CP-IGL. LaSalle filed a motion to dismiss the case against it, which the court granted.

Plaintiff filed a second amended complaint against Bistro, CP-IGL, Mid-America Management Group, Inc., and Mid-America Management Corporation.

Plaintiff filed a third amended complaint against Bistro, CP-IGL, American Invsco Realty, Inc., and Invsco Management Company. The third amended complaint alleged the same claims as the original complaint. INVSCO answered the complaint denying the allegations.

INVSCO moved for summary judgment on the basis that, because plaintiff's injuries were caused by a natural accumulation of ice, defendant was not liable and owed no duty to plaintiff under Illinois law. Bistro joined INVSCO in that motion.

The circuit court denied defendants' motion. The court found that plaintiff had presented sufficient circumstantial evidence creating a genuine issue of material fact that the falling ice was the proximate cause of her injury. INVSCO filed a motion to reconsider which was joined by Bistro. The court granted the motion to reconsider and entered summary judgment in favor of defendants. In its ruling, the court found that it had failed to consider defendants' argument that "the ice which fell on plaintiff was the result of a natural accumulation of snow and ice."

Plaintiff filed a motion to reconsider the entry of summary judgment, which was denied.

Plaintiff argues that summary judgment in favor of defendants was in error because the court improperly applied the "natural accumulation rule" and that whether the ice was a natural or unnatural accumulation was a question of fact.

A trial court should grant summary judgment when "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." Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986). Because summary judgment is a drastic remedy, the court should construe the evidence "strictly against the movant and liberally in favor of the opponent." Purtill, 111 Ill. 2d at 240. In order to withstand a motion for summary judgment, a plaintiff must come forward with sufficient evidentiary materials to permit the trier of fact to find that defendant was responsible for an unnatural accumulation of water, ice or snow that caused plaintiff's injuries. Galivan v. Lincolnshire Inn, 147 Ill. App. 3d 228, 229, 497 N.E.2d 1331 (1986).

A property owner generally owes no duty to its customers to remove snow or ice that accumulates naturally on the premises. Wells v. Great Atlantic & Pacific Tea Co., 171 ...

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