Appeal from the Circuit Court of Cook County No. 08 L 62033 Honorable Roger G. Fein, Judge Presiding.
The opinion of the court was delivered by: Justice Cunningham
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Connors concurred in the judgment and opinion.
¶ 1 This appeal arises from a July 14, 2010 order entered by the circuit court of Cook County which granted defendants-appellees 8400-8460 North Skokie Boulevard Condominium Association, Inc., and Rosen Realty Management Inc.'s (Skokie and Rosen) motion for summary judgment. On appeal, plaintiff-appellant Tamara Pikovsky (Tamara) argues that: (1) the trial court erred in finding that the Illinois Snow and Ice Removal Act (745 ILCS 75/1 et seq. (West 2008)) barred her negligence claim against Skokie and Rosen; (2) Skokie and Rosen violated the Skokie obstructions and snow removal and disposal ordinances (Skokie, Code of Ordinances §§ 90-49, 90-51 (2002)); and (3) the trial court erred in finding that the Illinois Snow and Ice Removal Act preempted the Skokie obstructions and snow removal and disposal ordinances. For the following we reasons, we affirm the judgment of the circuit court of Cook County.
¶ 3 8460 North Skokie Boulevard is a building on the corner of Skokie Boulevard and Lee Street in the town of Skokie, Illinois. The rear entrance to the building is accessible through a sidewalk that is adjacent to the building's parking lot (rear entrance sidewalk). The rear entrance sidewalk abuts the Lee Street sidewalk. In 2008, the building was owned and controlled by 8440-8460 North Skokie Boulevard Condominium Association, Inc. The building was managed by Rosen Realty and Management, Inc. On October 18, 2007, Skokie and Rosen entered into a contract with Canopy Enterprises, Inc., d/b/a Canopy Snow Plowing (Canopy). The contract prescribed that Canopy would plow away the snow in the parking lot of the building during the winter from November 15, 2007 through April 1, 2008. On November 10, 2007, Skokie and Rosen entered into a contract with Maintenance Hot Line, Inc. (Maintenance Hot Line). The contract prescribed that Maintenance Hot Line would provide daily, weekly, monthly and seasonal janitorial services for a period of one year. Maintenance Hot Line's duties included removing snow from the Lee Street sidewalk. Neither contract provided for snow removal on the rear entrance sidewalk. The Canopy contract stated that Canopy would provide snow removal services for area other than the parking lot at an extra cost upon request. Skokie and Rosen never requested that Canopy remove snow from the rear entrance sidewalk.
¶ 4 On February 21, 2008, Tamara was a resident of 8460 N. Skokie Boulevard, Skokie, Illinois. On that day, Tamara was returning home from a visit with her mother and attempted to use the rear entrance sidewalk to get to the building. Tamara claims that she slipped and fell on the rear entrance sidewalk due to "icy snow mounds." As a result of the fall, Tamara suffered a fractured left hip and remained in the hospital from February 21 to February 27, 2008. Tamara claims that the icy snow mounds were formed by snow that was plowed from the parking lot onto the rear entrance sidewalk that leads to the building. During his deposition, George Lipp (Lipp), co-owner of Canopy, stated that sometimes he plowed snow from the parking lot onto the rear entrance sidewalk and other times he plowed snow to the perimeter of the parking lot. Lipp stated that Canopy was never asked to deposit snow in another manner. Tamara also claims that the snow and ice mounds were melting and freezing over on the rear entrance sidewalk during the entire winter and that the piles could reach up to four or five feet high.
¶ 5 On July 28, 2008, Tamara filed a complaint for negligence against Skokie and Rosen in the circuit court of Cook County. Tamara claimed that Skokie and Rosen, as owners, operators and controllers of the condominium building, failed to exercise reasonable care by creating an unsafe and dangerous condition of unnatural accumulation on the rear entrance sidewalk. On August 27, 2008, Skokie and Rosen filed an answer and third-party complaint for contribution against Maintenance Hot Line and Canopy. In their answer and third-party complaint, Skokie and Rosen denied all of Tamara's allegations and pled those same allegations against Maintenance Hot Line and Canopy. The parties exchanged discovery and on May 28, 2009, Tamara filed supplemental responses to Skokie and Rosen's request to produce and Maintenance Hot Line and Canopy's request to produce.
The supplemental responses contained a "declaration"*fn1
by Chad Paul, a resident of 8460 N. Skokie Boulevard. The
declaration stated that plow trucks plowed snow onto the rear entrance
sidewalk creating mounds that were icy and dangerous throughout the
entire winter. On June 12, 2009, Tamara was deposed. On July 24, 2009,
Lipp was deposed. On February 22, 2010, Umut Ates, owner of
Maintenance Hot Line, was deposed.
¶ 6 On April 30, 2010, Skokie and Rosen filed a motion for summary judgment pursuant to section 2-1005 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2010)).*fn2
Skokie and Rosen claimed that the Illinois Snow and Ice Removal Act (the Act) (745 ILCS 75/2 (West 2008)) granted them immunity from liability for negligence arising out of snow and ice removal on residential sidewalks. On June 2, 2010, Tamara filed a response to Skokie and Rosen's motion for summary judgment claiming that: (1) Skokie and Rosen were not protected by the Act because they never actually attempted to remove snow from the rear entrance sidewalk and thus are not of the class of owners protected; (2) Skokie and Rosen breached their duties to remove an unnatural accumulation of snow and ice and protect the foreseeable plaintiff from harm; (3) Skokie and Rosen violated the Skokie obstructions and snow and ice removal ordinances (Skokie municipal ordinances) (Skokie Code of Ordinances §§ 90-49, 90-51 (2002)); (4) the Act does not immunize negligent removal of snow from the parking lot; (5) Skokie and Rosen's conduct was willful and wanton; and (6) Skokie and Rosen have not demonstrated a lack of a genuine issue of material fact. Tamara did not include the Chad Paul declaration in her response opposing summary judgment. On July 14, 2010, the trial court issued an order granting Skokie and Rosen's motion for summary judgment. The trial court held that the Act provided Skokie and Rosen with immunity from claims arising from negligent snow and ice removal and that Skokie and Rosen's conduct was not willful and wanton. The court also held that the Skokie municipal ordinances do not apply because: (1) the rear entrance sidewalk is located entirely on Skokie and Rosen's property and therefore is not a "public way"; (2) the ordinances are not public safety measures for which tort liability was intended; and (3) even if one or both of the ordinances were applicable, they do not supercede or nullify the immunization afforded by the Act, nor do the ordinances provide a civil remedy.
¶ 7 On August 13, 2011, Tamara filed a motion for reconsideration of the trial court's order granting summary judgment. Tamara attached the Chad Paul declaration to her motion to reconsider. On the same day, Tamara filed a motion for leave to file a first amended complaint. On September 24, 2010, Skokie and Rosen filed a response to Tamara's motion for reconsideration and argued that the Chad Paul declaration should be stricken. On November 18, 2010, the trial court issued an order denying Tamara's motion for reconsideration. The court refused to consider the Chad Paul declaration because Tamara did not present the declaration to the court, did not include it in her response opposing the motion for summary judgment, and offered no explanation as to why the declaration was not available and utilized at the time of the original hearing. Further, the court found that Tamara's arguments in her motion to reconsider were the same arguments restated from her response opposing the motion for summary judgment. The trial court did not rule on Tamara's motion for leave to file a first amended complaint. On December 10, 2010, Tamara filed the notice of appeal.
¶ 9 We determine the following issues on appeal: (1) whether the trial court erred in ruling that the Act barred Tamara's negligence claim against Skokie and Rosen; and (2) whether the trial court erred in ruling that the Skokie municipal ordinances were inapplicable in this case. As a preliminary matter before we consider Tamara's arguments, we must determine if this court has jurisdiction. On July 14, 2010, the trial court issued an order granting Skokie and Rosen's motion for summary judgment. At this time, Canopy had also filed a motion for summary judgment but the trial court did not rule on that motion. During oral argument, the trial court noted that any cause of action against Canopy or Maintenance Hot Line is predicated on the existence of a cause of action against Skokie and Rosen. Therefore, because the court ruled that Skokie and Rosen were entitled to judgment as a matter of law against Tamara, the court reasoned that the issue of Canopy's motion for summary judgment was moot and need not be decided. Tamara filed a motion for reconsideration on August 10, 2010. ...