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Jennifer Hornacek v. 5th Avenue Property Management

September 30, 2011

JENNIFER HORNACEK,
PLAINTIFF-APPELLANT,
v.
5TH AVENUE PROPERTY MANAGEMENT, JOHN BRANNEN, LAWRENCE BRANNEN, LINDA MARKS, THE BRANNEN FAMILY PARTNERSHIP, AND ERIC RICE, INDIVIDUALLY, AND D/B/A ET SNOW REMOVAL & LAWN, DEFENDANTS-APPELLEES.



Appeal from theCircuit Court of Cook County. No. 07 L 12672 The Honorable James D. Egan, Judge Presiding.

The opinion of the court was delivered by: Justice Harris

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

Presiding Justice Quinn and Justice Cunningham concurred in the judgment and opinion.

OPINION

¶ 1 Here we are called upon to determine whether the circuit court properly granted summary judgment in favor of defendants John Brannen, Lawrence Brannen, Linda Marks, The Brannen Family Limited Partnership, 5th Avenue Property Management (collectively 5th Avenue) and defendant Eric Rice, individually, and d/b/a ET Snow Removal & Lawn (collectively Rice). Plaintiff Jennifer Hornacek's complaint sought personal injury damages from a fall on ice in 5th Avenue's parking lot. Rice was contracted to perform snow removal services for the lot.

¶ 2 We hold that Hornacek has raised sufficient evidence of genuine factual issues to withstand both defendants' respective motions for summary judgment. She has provided evidence from which a trier of fact could reasonably find that Rice negligently maintained the parking lot owned by 5th Avenue which proximately caused her injuries and that 5th Avenue had notice, either actual or constructive, of an unnatural condition which proximately caused her injuries. The entry of summary judgment in this case was not proper.

¶ 3JURISDICTION

¶ 4 On August 17, 2010, the circuit court granted Rice's motion for summary judgment. On October 25, 2010, the circuit court granted 5th Avenue's motion for summary judgment. On November 15, 2010, the circuit court denied Hornacek's motion to reconsider the granting of summary judgment in favor of Rice. On November 19, 2010, Hornacek timely filed her notice of appeal. 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).

¶ 5 BACKGROUND

¶ 6 On July 14, 2008, Hornacek filed her third amended complaint against defendants 5th Avenue and Rice.*fn1 In her complaint, Hornacek alleged that 5th Avenue owned, managed, and maintained the building located at 1402-1418 West 55th Street in Countryside, Illinois. Hornacek alleged that prior to January 25, 2007, the parking lot at the building had been repaved. According to her complaint, on January 25, 2007, while walking to her car in the parking lot, Hornacek stepped on an unnatural accumulation of ice, slipped, and fell. Hornacek alleged that 5th Avenue had a duty to remove snow and ice from the building. Hornacek contended 5th Avenue was negligent because: it failed to properly maintain the parking lot of the building, failed to remove ice and snow from the parking lot, failed to remove an unnatural accumulation of snow and or ice from the parking lot, failed to move snow into such a location as to prevent it from melting into the parking lot of the building, improperly removed snow from the parking lot of the building causing it to melt and create an unnatural accumulation of snow and or ice in the parking lot, improperly diverted melting snow and ice from the building into the parking lot, and failed to warn of one or more of these conditions. Hornacek claimed that as a proximate result of these negligent acts or omissions, she suffered injuries.

¶ 7 In her third amended complaint, Hornacek also alleged Rice had entered into an agreement for snow removal at the building from November 2006 through April 2007 and that on or before the date of Hornacek's fall, Rice removed snow from the building. Hornacek alleged that on the date of her fall, there existed an unnatural accumulation of ice in the parking lot and that she stepped on that unnatural accumulation of ice, slipped, and fell. Hornacek alleged that Rice had a duty to remove the snow and ice from the building and that Rice was negligent because he: failed to remove ice and snow from the parking lot of the building, failed to remove an unnatural accumulation of snow and or ice from the parking lot of the building, failed to move snow into such a location as to prevent it from melting into the parking lot of the building, improperly removed snow from the parking lot of the building causing it to melt and create an unnatural accumulation of snow and or ice in the parking lot of the building, improperly diverted melting snow and ice from the building into the parking lot of the building, and failed to warn of one or more of these dangerous conditions. Hornacek alleged that her injuries were a proximate result of the alleged negligent acts or omissions.

¶ 8 The building where Hornacek fell is an "L" shaped building with a parking lot in the front, or south side of the building, and another parking lot in the back of the building, or north side. The shape of the building on its north side had an indentation, which formed the "L" shape of the building.

¶ 9 Both Rice and 5th Avenue filed motions for summary judgment against Hornacek. Several depositions were taken, which the parties relied upon on in arguing their respective positions on the motions for summary judgment. During his deposition, Wayne Lawler, a co-worker of Hornacek's, testified that he did not know how long before Hornacek's injury the lot had been plowed. He testified that he went to the scene of the accident 5 or 10 minutes after Hornacek fell, which he believed was in the late morning or early afternoon. In the parking lot he observed his co-worker, David Hampton, helping Hornacek into a car to take her to the hospital. He noticed she was in pain because she was moaning. Lawler testified that in December of 2006, he had also fallen on ice in the parking lot. At the time of his fall, he told the secretary at the office to be careful walking in the parking lot. Although Lawler was not sure where the ice came from that caused his fall, he did state that after the parking lot had been repaved, it seemed as though the drainage was different. Lawler also testified he noticed "at times an enormous pile of snow" would be plowed against the building into the indentation on the north side of the building. He believed that during the day, the sun would melt the piles of snow next to the building and the water would run into the north parking lot. At night, the water would freeze. He admitted that he never observed the snow melting, but he did see the snow piles decrease in size and he noticed that the pavement would be wet. In the past, garbage bins had been placed in the area, but they had been removed, which allowed snow to be placed in that area. He testified that he never made any complaints about the snow piles against the building, but that he felt that because of the melting, the plowed snow should have been placed somewhere else. He described the snow piled against the building as "excessive," and claimed that on one occasion he observed the snow pile being above his head. Lawler testified that he did not know why Hornacek fell, nor did she ever tell him. On the day of Hornacek's fall, Lawler recalled it being a cold and sunny January day. He thought that the parking lot that day was a "little wet" and that the source of that wetness was snow melting. He could not recall any ice in the back parking lot on the day Hornacek fell. He later stated that the parking lot seemed to be wet and that the sun was melting the snow. However he could not remember if there was a snow pile in the indented area on the north side of the building on the date of Hornacek's fall.

¶ 10 During her deposition, Hornacek testified that she remembered that the weather on the day of the accident "was a little bit warmer than it had been" and that "the sun was kind of out." She estimated that she fell between noon and 1 p.m. When she initially parked her car, she noticed that the ground where she parked was snowy and icy. She testified that it did not snow that day nor could she remember when it had snowed prior to that day. She described the snow as "snow on top of thick-what looked like thicker ice to me, cloudy frozen water." She testified that on her way into the office, she walked around the ice. After an hour or so in the office, she exited the office and went to the parking lot. She had to take a different path to get to her car than when she came into the office because two vans had subsequently blocked her original path.

She described the condition of the parking lot on the way back to her car as "snowy" and "slushy." She estimated that 8 to 10 feet from her car, she fell. When asked what caused her to fall, Hornacek answered "I don't- what looked like to me or what I now know was probably invisible ice. Nothing was shiny, you couldn't see anything. I slipped." She then stated that once she fell, she knew that she had fallen on invisible ice. She described the invisible ice as free of slush and snow and was clear, allowing her to see the blacktop below. She stated that it did not look any different from pavement and she could not tell the depth of the ice. Hornacek did not know the source of the ice. She testified that prior to her fall, she had complained to the secretary of her company regarding the icy conditions of the parking lot. Hornacek also could not recall if snow was piled up against the building that day. She testified further that she knew she had slipped on ice because she felt the ice with her hands.

ΒΆ 11 David Hampton, a co-worker of Hornacek's and one of the first people to come to her aid after her fall, testified in his deposition that there was almost always ice in the parking lot during the winter months. He stated that he knew Hornacek slipped on a "big ice flow that kind of went from the ice pile that bisected the parking lot." He recalled that on the day of the incident, there were snow piles on the north side of the building in the indented area. He thought it was the snow piles that caused the ice flow because it was "reasonable to assume that it was the snow pile because it was big and the sun would hit it during the day, and what would happen was the run off would then kind of travel in a northeasterly direction on an angle *** and it would just, you know, freeze." On the day of Hornacek's fall, he recalled, it was cold, and just east of where he found Hornacek on the ground, there was frozen, solid, black-colored ice. He stated that the ice had been there pretty much all winter. He did not see Hornacek fall, but responded when an unknown person came into the office informing him of the incident. David testified that he found Hornacek sitting on the "ice flow" that he described. Although David knew of multiple complaints from co-workers, he did not know if any managers at the office complained to the owners of the building regarding the ice situation in the north parking lot. During his deposition, he stated that he thought that he had asked the landlord not to have snow plowed up against the building in the indentation on the north side. When asked whether he had any discussions with the landlord about plowing the lot, he answered ...


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