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McLean v. Rockford Country Club

September 23, 2004

[5] CHARLES J. MCLEAN, SR., AND LINDA MCLEAN, PLAINTIFFS-APPELLANTS,
v.
ROCKFORD COUNTRY CLUB, DEFENDANT-APPELLEE.



[6] Appeal from the Circuit Court of Winnebago County. No. 02--L--422. Honorable Ronald L. Pirrello, Judge, Presiding.

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

[8]  Plaintiffs, Charles J. McLean, Sr., and Linda McLean, appeal from the trial court's order dismissing their complaint against defendant, Rockford Country Club, pursuant to section 2--615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--615 (West 2002)). In their complaint as amended, plaintiffs sought to recover damages for injuries sustained when Charles was struck by a falling icicle near the entrance of defendant's premises. The trial court dismissed the action after finding that recovery was precluded under the natural accumulation rule, which provides that a property owner has no duty to remove snow or ice that accumulates naturally on its premises. See Bloom v. Bistro Restaurant, Ltd. Partnership, 304 Ill. App. 3d 707, 710 (1999). On appeal, plaintiffs contend that the natural accumulation rule does not extinguish a property owner's common-law duty to provide a reasonable means of ingress to and egress from its place of business. We affirm in part, reverse in part, and remand the case for further proceedings.

[9]  In their third amended complaint, plaintiffs alleged that, on December 16, 2000, Charles was defendant's business invitee and was walking under the edge of an overhanging roof near the front entrance of defendant's premises. Plaintiffs alleged that, as Charles was walking in this area, he was struck on the head, neck, and shoulder by an "extremely large and heavy icicle" that broke off of the overhang. The complaint alleged that Charles sustained numerous injuries as a result of the incident, including head lacerations, nerve impingement of his left shoulder and neck, clawing of his left hand with motor deficit, hand numbness, and several bulging cervical discs in his back. Count I of the complaint sought damages for Charles's injuries; count II sought damages for loss of consortium by Charles's wife, Linda.

[10]   Both counts I and II contained the same allegations of negligence against defendant. The counts alleged that defendant negligently permitted large and heavy icicles to hang from the edge of the roof overhanging the front entrance of the premises where business invitees were required to walk, knowing "for a long time prior to this occurrence" that such icicles created a dangerous and hazardous condition for patrons entering and exiting the building. Plaintiffs also alleged that defendant was negligent in failing to knock down or otherwise remove the icicles; in failing to warn its business invitees of the presence of the icicles; in failing to prevent the formation of the icicles; and in failing to otherwise exercise ordinary care in their control and maintenance of the building. These allegations were contained in subparagraphs 7(a), 7(b), 7(c), 7(d), 7(l), 7(m), and 7(n) of counts I and II. Plaintiffs further alleged that defendant failed to correct several defective building conditions, which caused an unnatural accumulation of water to overflow the building's eaves and gutters, resulting in the formation of numerous large and heavy icicles. The allegedly defective building conditions included: an improper roof design, which included an improper pitch and slope of the overhang roof; improperly hung and sized gutters and downspouts; an inadequate number of downspouts for the overhang roof; and improper drainage of the overhang roof. Plaintiffs alleged that defendant failed to correct these defective conditions or take other remedial action, such as the installation of heated cables or ice diverters in the gutters on the overhang roof. These allegations were contained in subparagraphs 7(e) through 7(k) of counts I and II. Finally, in subparagraph 7(o) of counts I and II, plaintiffs alleged that defendant negligently failed to keep the building's gutters free and clear at all times of stored materials and of an accumulation of water, mud, and refuse, in violation of section 26--172 of the Rockford Code of Ordinances (Rockford Code of Ordinances §26--172 (____)).

[11]   Defendant moved to dismiss plaintiffs' third amended complaint pursuant to section 2--615 of the Code. Relying on Bloom, 304 Ill. App. 3d 707, defendant argued that, under the natural accumulation rule, it had no duty to remove the snow or ice that accumulated naturally on its premises. Defendant further argued that plaintiffs' complaint failed to allege sufficient facts to establish that the icicles were an unnatural accumulation created as a result of a defective condition on the premises. However, defendant did not challenge the pleading on any other basis.

[12]   Following a hearing, the trial court granted defendant's motion and dismissed with prejudice plaintiffs' complaint in its entirety. The trial court explained that it found that plaintiffs' allegations of defect were conclusory and were insufficient to allege that defendant had created an unnatural accumulation on its premises. The trial court further explained its ruling as follows:

[13]   "I'm going to dismiss it. I don't believe you stated the cause of action. I believe that there's no cause of action which can be stated and that's the only reason I would dismiss with prejudice on the [2--]615. *** I just don't feel there's a cause of action for icicles. I just don't think *** that you'll be able to name [a cause of action] without finding [a] defect in the property itself."

[14]   Plaintiffs subsequently filed a timely notice of appeal.

[15]   On appeal, plaintiffs contend that the trial court erred in dismissing their complaint. Plaintiffs argue that the natural accumulation rule does not extinguish a property owner's common-law duty to provide a reasonably safe means of ingress to and egress from its premises. Plaintiffs assert that their complaint sufficiently alleges that they were injured as a result of defendant's negligence in failing to provide a safe means of ingress to and egress from its premises, free of known dangerous conditions. Plaintiffs alternatively argue that, even if the natural accumulation rule does apply to their case, their complaint sufficiently alleges the existence of a defective condition on defendant's premises that allowed an unnatural accumulation of ice and icicles to form above the entrance. Plaintiffs conclude that it was improper to dismiss their complaint pursuant to section 2--615 of the Code.

[16]   A complaint should be dismissed under section 2--615 for failure to state a cause of action only when it clearly appears that no set of facts could be proved under the pleadings that would entitle the plaintiff to relief. Lake County Grading Co. of Libertyville, Inc. v. Advance Mechanical Contractors, Inc., 275 Ill. App. 3d 452, 456 (1995). Although a section 2--615 motion to dismiss admits all well-pleaded facts as true, it does not admit conclusions of law or factual conclusions that are unsupported by allegations of specific facts. Lake County Grading, 275 Ill. App. 3d at 457. If, after disregarding any legal and factual conclusions, the complaint does not allege sufficient facts to state a cause of action, the motion to dismiss should be granted. Lake County Grading, 275 Ill. App. 3d at 457. In ruling on a motion to dismiss, the complaint's factual allegations are to be interpreted in the light most favorable to the plaintiff, but factual deficiencies may not be cured by liberal construction. Lake County Grading, 275 Ill. App. 3d at 457. We review de novo a trial court's order granting a section 2--615 motion to dismiss. T&S Signs, Inc. v. Village of Wadsworth, 261 Ill. App. 3d 1080, 1084 (1994).

[17]   The essential elements of a cause of action based on common-law negligence are the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury caused by that breach. Ward v. K mart Corp., 136 Ill. 2d 132, 140 (1990). Although the parties devote their entire appellate briefs to the question of whether defendant owed plaintiffs any duty as a matter of law, a careful examination of the complaint reveals that plaintiffs have failed to specifically allege the existence of a duty by defendant to plaintiffs. Indeed, the word "duty" does not appear anywhere in the entire complaint. Instead, paragraph 7 in counts I and II alleges that defendant committed the "negligent acts and omissions" that we have summarized above. Lacking a threshold allegation of the existence of a duty, allegations that certain acts or omissions are negligent are conclusory and are insufficient to state a cause of action for negligence. See Hancock v. Luetgert, 40 Ill. App. 3d 808, 810 (1976) (noting that mere allegations that a defendant's negligence caused injury is conclusory and not sufficient to state cause of action). Plaintiffs cannot state a cause of action merely by labeling certain acts or omissions as "negligent"; instead, plaintiffs must specifically allege the elements of duty, breach of duty, and injury caused by the breach. See Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 525 (1987). We note that this pleading deficiency was neither commented upon by the trial court nor raised by defendant at trial or on appeal. Nonetheless, in light of our de novo standard of review, we are compelled to conclude that plaintiffs have failed to allege the elements of a common-law cause of action for negligence and that dismissal of the complaint was proper on this basis alone.

[18]   However, in granting defendant's section 2--615 motion, the trial court dismissed plaintiffs' complaint with prejudice. A complaint should be dismissed with prejudice under section 2--615 only if it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recover. Andersen v. Mack Trucks, Inc., 341 Ill. App. 3d 212, 219 (2003). Notwithstanding plaintiffs' failure to include an allegation of duty, we must nonetheless consider the legal issues presented by the parties on appeal to determine whether plaintiffs can allege a set of facts that would entitle them to recover and to determine whether dismissal with prejudice was warranted. We thus turn to a consideration of the questions of whether defendant owed plaintiffs any duty under the facts as alleged in the complaint and whether the natural accumulation rule applies.

[19]   Generally, a property owner is not liable for injuries sustained as a result of falling on snow or ice that has accumulated as the result of natural causes. Bloom, 304 Ill. App. 3d at 710. However, a property owner may be held liable for such injuries if the accumulation of ice or snow becomes unnatural due to the design and construction of the premises. Clauson v. Lake Forest Improvement Trust, 1 Ill. App. 3d 1041, 1045 (1971). The construction and maintenance of a landowner's property are matters within the landowner's control. Bloom, 304 Ill. App. 3d at 711. Therefore, Illinois courts have noted that "[i]t is not imposing an undue burden on [the landowner] to require him not to add to the difficulties facing Illinois residents from natural accumulations of ice and snow by permitting unnatural accumulations due to defective construction or improper or insufficient maintenance of the premises." Bloom, 304 Ill. App. 3d at 711, citing Lapidus v. Hahn, 115 Ill. App. 3d 795 (1983).

[20]   Here, the parties focus much attention on Bloom, 304 Ill. App. 3d 707, which is the only reported case in Illinois that has addressed the issue of a property owner's liability for injuries caused to a pedestrian by ice falling from a building. In Bloom, the plaintiff was injured as a result of being struck by falling ice while exiting a restaurant. Bloom, 304 Ill. App. 3d at 709. The plaintiff filed a negligence action against both the restaurant owner and the building owner. During a deposition, a restaurant employee testified that, after the incident, he attempted to determine the origin of the ice that had fallen and observed four identical "protrusions" on the building. All of the protrusions except one had four-foot ice formations on them. The one protrusion that did not have an ice formation on it was located directly above the restaurant entrance where the plaintiff was struck. Bloom, 304 Ill. App. 3d at 709. There was also evidence that the restaurant had previously received several complaints from restaurant patrons about snow or ice falling around the entrance area where the plaintiff was injured. Bloom, 304 Ill. App. 3d at 712. The defendants ...


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