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Deloyse Williams v. Sebert Landscape Company

March 8, 2011

DELOYSE WILLIAMS,
PLAINTIFF-APPELLANT,
v.
SEBERT LANDSCAPE COMPANY,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County Honorable Susan McDunn, Judge Presiding. No. 06 L 9650

The opinion of the court was delivered by: Justice Harris

JUSTICE HARRIS delivered the judgment of the court, with opinion.

Presiding Justice Cunningham and Justice Karnezis concurred in the judgment.

OPINION

Plaintiff Deloyse Williams sustained personal injuries from a slip and fall on a patch of ice in the parking lot of the building where she worked in Elk Grove Village, Illinois. On September 13, 2006, she sued both the owner of the property and the snow removal contractor responsible for clearing the parking lot, alleging that their negligent snow removal caused her to slip and fall. Williams settled with the property's owner and proceeded to trial against the snow removal contractor, defendant Sebert Landscape Company. On defendant's motion and over Williams' objection the trial court instructed the jury as to plaintiff's burden of proof using Illinois Pattern Instructions (IPI) Civil 125 series designated for owner-occupiers rather than contractors. The jury found in favor of defendant, Sebert Landscape. Williams then filed the instant appeal, arguing that the trial court erred in giving the IPI Civil 125 series instructions. For the following reasons, we reverse and remand for a new trial.

JURISDICTION

The trial court entered a final judgment in the instant case on May 24, 2010, and plaintiff filed her notice of appeal on June 23, 2010. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

BACKGROUND

Plaintiff Deloyse Williams worked the night shift at a United States Postal Service facility on Busse Highway in Elk Grove Village. At approximately 3:25 a.m. on the morning of January 7, 2005, she was leaving her place of employment to take her lunch break. As she crossed the parking lot to reach her car, Williams slipped and fell on a patch of ice. She testified at trial that the ice patch measured approximately 10 inches by 10 inches and was 2 inches thick.

Snow had fallen on January 5, 2005, two days prior to Williams' fall, and Williams had observed Sebert Landscape trucks plowing the parking lot at approximately 5:30 a.m. on January 6, 2005. Instead of moving the snow off the parking lot, the Sebert Landscape trucks piled snow in the center of the lot.

Williams filed a two-count complaint against defendants Centerpoint Properties, the owner of the Busse Highway facility, and Sebert Landscape Company which, under contract with Centerpoint, was responsible for clearing snow from the parking lot. Williams alleged that both defendants were liable for negligently clearing snow from the parking lot on January 5, 2005. Williams settled with Centerpoint on December 2, 2009, and proceeded to trial against Sebert Landscape.

At trial, Williams testified that she believed the ice patch on which she slipped was formed by melted runoff from the snow pile in the middle of the parking lot that had later re-frozen. Although Williams had testified at her discovery deposition that temperatures had stayed below the freezing point during the time period in question, she testified at trial that temperatures had warmed up during the daytime.

The Centerpoint- Sebert Landscape contract required Sebert Landscape to clear snow from the parking lot at the time of plaintiff's fall. Sebert Landscape was not responsible for clearing any ice that may have formed there. However, when clearing the snow the contractor was permitted to salt the lot at its discretion.

After all of the evidence had been presented, the trial court held a jury instruction conference. Williams submitted instructions from the IPI Civil 20 series and Sebert Landscape submitted instructions from the IPI Civil 125 series. The details of these instructions will be discussed further below. Over Williams' objections, the trial court used the 125 series instructing the jury as to the plaintiff's burden of ...


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