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Strahs v. Tovar's Snowplowing

June 16, 2004

[5] ELFRIEDA STRAHS, PLAINTIFF-APPELLANT,
v.
TOVAR'S SNOWPLOWING, INC., AN ILLINOIS CORPORATION; WALGREEN COMPANY, AN ILLINOIS CORPORATION; AND BOND DRUG COMPANY OF ILLINOIS, AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES.



[6] Appeal from the Circuit Court of Cook County. Honorable Irwin J. Solganick, Judge Presiding.

[7] The opinion of the court was delivered by: Justice South

[8]  Plaintiff, Elfrieda Strahs, appeals from an order of the circuit court of Cook County granting the motion of defendants Tovar's Snowplowing (Tovar), Walgreen Company (Walgreen), and Bond Drug Company of Illinois (Bond Drug) for a directed verdict at the close of plaintiff's premises liability case.

[9]  BACKGROUND

[10]   This suit originates from a fall suffered by plaintiff on the morning of January 15, 2001, in a parking lot adjacent to the Walgreen's store at the Irving Park Streamwood Plaza (Streamwood Plaza). Plaintiff, then 84 years old, parked her car in the lot, walked towards the Walgreen's entrance and slipped on what she believed was a patch of black ice. She testified at trial that the parking lot was wet at the time of the accident, as were the roads between her home and the store, and she felt ice on the pavement when she tried to lift herself up. She sustained several injuries, including a fractured hip.

[11]   The building occupied by Walgreen and the parking lot was owned by a trust of which Amalgamated Bank of Chicago (Amalgamated) was trustee. Bond Drug, a subsidiary of Walgreen, leased the store building from Amalgamated. The lease agreement provided that certain portions of the parking lot were for the use of Walgreen's customers and employees. Under the lease, the landlord, Amalgamated, was responsible for the prompt removal of snow and ice from the parking area. Bond Drug had the right to give notice to Amalgamated if it failed to properly remove snow and ice. And if Amalgamated failed to remedy or fix the situation after 30 days, Bond Drug could do the maintenance itself and deduct the cost from its rent. National Shopping Plazas, Inc. (National), ultimately managed the property for Amalgamated and contracted with Tovar for the removal of accumulations of snow and for chemical treatment of ice in the parking lot.

[12]   On June 29, 2001, plaintiff filed a premises liability cause of action against defendants in which she alleged, in relevant part, that Tovar negligently created, caused, and/or contributed to unnatural accumulations of ice and snow in the parking lot which resulted in her slip and fall. She further alleged that Walgreen and Bond Drug were aware of the icy conditions in the parking lot on the morning of the accident but negligently failed to remove or warn of the danger.

[13]   At the jury trial, plaintiff testified that on the morning of January 15, 2001, the temperature hovered around freezing and that a light rain had fallen prior to when she departed for Walgreen's around 9 a.m. She noticed that the pavement was wet when she pulled into the parking lot, but she did not see any ice. There were piles of dirty snow along the Irving Park perimeter that were approximately one or two feet high and extended a foot or two into the lot. After plaintiff parked her car, she took four or five steps towards the Walgreen's entrance when her right foot slipped on some ice, causing her to fall to the pavement in a sitting position. She tried lifting herself up with her left hand and felt "ice squishing through her fingers." As she sat on the pavement, she assumed that the ice had been formed from precipitation that had not drained off, although she was unaware of any drains in the parking lot that sloped downward towards the store.

[14]   On cross-examination, plaintiff acknowledged that on the morning of her accident the streets were uniformly wet, as would be typical after it rained. She thought that the water came from the snow piles because "where else would that water come from." Plaintiff testified that she did not believe the water came from the rain, although she conceded that she never observed any water flowing through the parking lot and only assumed the water came from the melting snow piles.

[15]   Plaintiff's son, Glen Strahs, testified that he drove to the Streamwood Plaza parking lot for the first time on the evening of January 15, 2001, and observed piles of plowed snow in a number of locations in and around the parking lot area.

[16]   Janice Fitzpatrick, National's property manager, testified that the tenants at Streamwood Plaza were not responsible for snow and ice removal in the parking area. Tovar was expected to monitor the lot for ice and snow accumulation, and tenants could contact Tovar directly if there was a problem with ice and snow accumulation.

[17]   Jeff Tovar, the president of Tovar, testified that the company was responsible for ice and snow removal at approximately 150 properties, including Streamwood Plaza. The snow at the front of Streamwood Plaza was plowed by them onto a flat grassy area at the northwest corner of the property and left to melt. After reviewing various records, he testified that 25 inches of snow had fallen in the area in December of 2000, and that prior to plaintiff's accident the parking lot had last been plowed on December 31, 2000. On January 9, 2001, he visited Streamwood Plaza and observed water flowing in a couple of areas from the north side of the parking lot. He also observed natural accumulations of snow along the Irving Park perimeter from the December 2000, storms which were gradually melting.

[18]   Barbara Creamer, a cashier at the Streamwood Plaza Walgreen's, noticed that the parking lot was slippery when she arrived at work approximately two hours prior to plaintiff's accident but never informed anyone of the lot's condition. Around 9:30 a.m., she was told that an elderly lady had fallen in the parking lot. She immediately went outside and saw plaintiff being physically supported by a man in the parking area. She also observed black ice on the sidewalk and in the parking lot which made the area slippery.

[19]   Nina Ryan, a bookkeeper at the Streamwood Plaza Walgreen's, also noticed that the parking lot was slippery when she arrived at work around 8 a.m. on January 15, 2001. She slid a little bit when she exited her car and had to hold onto the vehicle's door. She did not recall telling anyone that she slid in the parking lot prior to plaintiff's accident.

[20]   John Bailey, Walgreen's store manager at Streamwood Plaza, testified that the parking lot was slippery when he arrived at work approximately three hours prior to plaintiff's fall and that his car swerved when he attempted to park. The Walgreen's store was at the south end of the parking lot and at a lower level than Irving Park Road to the north. At his deposition, Bailey testified that "in the back of his mind" he thought that someone could fall on the ice, and he intended to call Fitzpatrick around 8:30 or 9 ...


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