Appeal from the Circuit Court of Cook County. No. 03 L 2133 Honorable Susan Zwick, Judge Presiding.
The opinion of the court was delivered by: Justice Cunningham
Plaintiff Janine Judge-Zeit (plaintiff) appeals from an order of the circuit court of Cook County granting summary judgment in favor of the defendant, InterPark, Inc. (incorrectly sued as Interparking, Inc.) and denying the plaintiff's motion for leave to amend her complaint and motion to strike the defendant's climatic data. This appeal only pertains to the defendant-appellee InterPark, Inc. (InterPark). General Parking Corporation was dismissed from this lawsuit with prejudice by agreement of the parties. On appeal, the plaintiff argues that the trial court erred by: (1) holding that InterPark owed no duty to the plaintiff to provide a safe means of egress from the parking garage; (2) holding that InterPark did not have a contractually created duty to the plaintiff to remove natural accumulations of snow from the employee parking structure; (3) holding there was no genuine issue of material fact as to whether InterPark caused an unnatural accumulation of snow and ice; (4) holding there was no genuine issue of material fact as to whether InterPark negligently plowed the natural accumulations of snow; (5) denying the plaintiff's motion to amend her complaint; and (6) denying the plaintiff's motion to strike InterPark's exhibit of climate reports. For the following reasons, we affirm the trial court.
The following factual background is adduced from the record.
At the time of the lawsuit, the plaintiff was an employee of the University of Chicago Hospital (UCH) and purchased employee parking privileges in the Duchossis Center Parking Garage (DCAM) on the hospital's campus. DCAM is a five-floor parking facility with an open roof on the fifth floor. All of the UCH parking facilities, including DCAM, are operated and managed by InterPark, the defendant. InterPark had a contractual agreement with UCH to manage and operate its parking facilities. No language in the UCH/InterPark contract expressly provided that InterPark was responsible for snow removal. However, snow removal is listed under the schedule of reimbursable operating expenses and testimony established that InterPark routinely performed snow removal as part of its service through subcontracting with another vendor. InterPark entered into a contract with Rick's Automotive (Rick's) to remove snow from all the UCH parking facilities. The contract provided that DCAM was to be plowed by 8 a.m. on days when snow removal was required and that some of the parking facilities should be plowed with a metal blade. DCAM was not one of the facilities required to be plowed with a metal blade.
On February 22, 2001, upon arriving for work, the plaintiff parked her car at approximately 8:50 a.m. on the fifth level of DCAM. Since the fifth level was open to the elements, snow covered the floor of the parking structure from a late night and early morning snowfall. When the plaintiff exited her vehicle, the snow plow had just begun to clear the fifth level of the parking structure. Rick's employee Rita Pacyna began to plow the southwest corner of the structure with rubber blades. According to the plaintiff's testimony, she began walking on the unplowed southeast corner of the garage toward the elevator when she slipped and fell onto her lower back and hip. Additionally, the plaintiff's testimony established the following facts. She was four feet west of two posts near the elevator when she fell. As a result of her fall, she sustained a herniated disc at L5-S1, requiring microdiscectomy surgery. After her fall, InterPark manager Jamie Martinez apologized to her and commented that the person responsible for plowing the garage had arrived late that morning.
On February 19, 2003, the plaintiff filed a compliant against InterPark in the circuit court of Cook County for damages resulting from her fall. The plaintiff alleged that InterPark: (1) failed to maintain the parking garage in a reasonably safe manner; (2) failed to remove snow that accumulated on the fifth floor after undertaking the duty to do so as manager of the facility; (3) allowed an unnatural accumulation of ice and snow on the egress to the elevators; and (4) carelessly and negligently inspected, controlled and maintained the parking garage.
During the discovery process, depositions were taken from the plaintiff, InterPark manager Jaime Martinez, Rick's employee Rita Pacyna, and InterPark operations manager Bill Plavsic. At the completion of discovery, InterPark filed its motion for summary judgment.
InterPark argued that summary judgment was proper because there was no genuine issue of material fact. In support of its motion, InterPark offered the following: a certified weather report of the weather conditions on February 22, 2001, the date of the plaintiff's fall; the contract between the UCH and InterPark; the snow removal proposal between Rick's automotive and InterPark; and the deposition testimony of the plaintiff and InterPark manager Jamie Martinez.
InterPark argued that it had no contractual duty to remove snow from DCAM. It pointed out that the UCH/InterPark contract does not expressly impose a duty on InterPark to remove snow and only mentions snow removal in the schedule of reimbursable operating expenses. InterPark also argued that under Illinois common law, the InterPark/Rick's proposal for snow removal did not create an affirmative duty to remove snow from DCAM. Although Jamie Martinez testified that Rick's should have plowed DCAM by 8 a.m., InterPark asserted that its failure to plow by 8 a.m. did not breach a duty to the plaintiff. Additionally, InterPark argued that the plaintiff offered no evidence that an unnatural accumulation of snow contributed to her fall. InterPark highlighted that the plaintiff testified that she fell on an unplowed section of the garage. According to a certified weather report, the accumulated snow fall on the morning of February 22, 2001, was four-tenths of an inch and snow was still falling at the time of the plaintiff's fall. InterPark claimed in its motion for summary judgment that the plaintiff's claim was speculative and no genuine issue of material fact remained in the matter.
The plaintiff, in her response to InterPark's motion, argued that a genuine issue of material fact remained in the matter. In support of her response, the plaintiff offers her deposition testimony as well as that of Bill Plavsic, Jaime Martinez, Rita Pacyna and photos of DCAM. She asserted that Interpark had a contractual duty to plow the lot by 8 a.m. Jamie Martinez, InterPark's manager of the UCH parking structures, testified that the subcontractor, Rick's, was late on the morning of the accident and that the lot should have been plowed before the plaintiff arrived for work. Additionally, the plaintiff argued that a genuine issue of fact remained as to whether InterPark caused an unnatural accumulation or aggravated a natural accumulation of snow. Rita Pacyna testified that DCAM had depressions throughout the fifth floor that accumulated pools of ice and snow. The rubber blade she used to plow DCAM did not remove the snow and ice from the depressions. Rita Pacyna also stated that she was plowing the southwest corner of the lot and piling the snow on the sides of the parking level. The southwest area was the last area to be plowed on the morning of the plaintiff's accident. The plaintiff contends that a jury could find that snow from the depression or negligent plowing methods caused her fall.
Before the court ruled on the motion for summary judgment, the plaintiff moved to amend her complaint and strike InterPark's climatic data, which was attached as an exhibit to the motion for summary judgment. The trial court ordered that the two pages attached as an exhibit to the motion to strike be stricken. The court did not strike the climatic data in its entirety at that time. The trial court subsequently granted InterPark's motion for summary judgment. The trial court found that the facts and evidence were insufficient to show that an unnatural accumulation of snow caused or contributed to the plaintiff's fall. The trial court found that there was no causal nexus between InterPark's actions and any claimed unnatural accumulation of snow that caused or contributed to the plaintiff's fall.
The plaintiff filed a motion to reconsider. The trial court denied the plaintiff's motion along with her motion to amend the complaint and strike InterPark's climatic data in its entirety. The court held that the mere existence of a contract between InterPark and Rick's for snow removal does not extend a common law duty to the plaintiff under Illinois law. Additionally, the trial court found that the plaintiff's claims that the use of rubber plowing blades created an unnatural accumulation of snow were irrelevant because the plaintiff testified that she fell on an unplowed area of the parking garage. The court also denied the plaintiff's motion to amend the complaint. The trial court found that the proposed amendment would not cure the defects in the complaint thereby necessitating a new ruling by the court. The plaintiff timely appealed.
The issues on appeal are: (1) whether InterPark had a common law duty to plow the parking garage to provide a safe egress for invitees; (2) whether the contract between InterPark and Rick's gave rise to a duty to plow the garage; (3) whether InterPark breached its duty by allowing an unnatural accumulation of snow and ice in depressions located throughout the garage; (4) whether InterPark breached its duty by negligently plowing the parking garage in a manner that caused the plaintiff's injury; (5) whether InterPark's climatic data was improperly admitted and ...