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Annette Barber v. G.J. Partners

August 22, 2012

ANNETTE BARBER,
PLAINTIFF-APPELLEE,
v.
G.J. PARTNERS, INC.,
DEFENDANT-APPELLANT.



Appeal from Circuit Court of Vermilion County No. 08L36 Honorable Michael D. Clary, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Turner

PRESIDING JUSTICE TURNER delivered the judgment of the court, with opinion.

Justices Appleton and Knecht concurred in the judgment and opinion.

OPINION

¶ 1 In September 2008, plaintiff, Annette Barber, filed an amended negligence complaint against defendant, G.J. Partners, Inc., following a fall with injury at a Danville gas station. In August 2011, a jury found in plaintiff's favor and awarded damages in the amount of $496,609.67, before reducing it to $372,457.25, which represented the jury's allocation of plaintiff's negligence in the amount of 25%.

¶ 2 On appeal, defendant argues the trial court erred in refusing to enter judgment in its favor as it had no duty to remove, warn, or protect against a natural accumulation of snow or ice. We reverse and remand with directions.

¶ 3 I. BACKGROUND

¶ 4 In September 2008, plaintiff filed an amended negligence complaint against defendant for injuries suffered in a fall at defendant's gas station on February 16, 2007. The complaint alleged defendant failed to properly maintain its premises by allowing snow to be piled into an unnatural accumulation near its lined parking spaces, failed to warn plaintiff of the dangerous condition of its premises, and failed to adequately inspect the premises to prevent an unnatural accumulation of snow. Plaintiff alleged defendant's negligent acts and/or omissions caused her to trip and fall on the piled up snow adjacent to the customer parking spaces on defendant's premises. Plaintiff claimed she suffered serious and permanent personal injuries.

¶ 5 In June 2009, defendant filed a motion for summary judgment, claiming no evidence showed the accumulation of ice upon which plaintiff slipped was an unnatural accumulation or that it posed an unreasonable risk of harm to people on the property. In July 2009, the trial court denied the motion. In April 2010, plaintiff filed her second amended complaint. In August 2010, defendant filed a motion for summary judgment, which the court denied.

¶ 6 In August 2011, a jury trial was conducted. Alice Hoskins testified she was an assistant manager at the BP gas station in February 2007. She stated the normal procedure in wintery conditions was to have someone plow the parking lots and have employees "put salt down on the metal plates out in the front, because they were slick." The two metal plates allowed access to gauges beneath the parking lot surface. A photo of one of the plates indicates it was approximately 45 inches in diameter. The face of the plate appears to be approximately one-half inch below the surface of the parking lot. The plates were near the front entrance to the convenience store.

¶ 7 Since the metal plates were not level with the ground, Hoskins stated the snowplows would fill or pack the plates with snow. After the snowplow was finished, employees would try to scrape the metal plates with a shovel and put salt or chemicals down. Hoskins stated the salt would have little or no effect when the temperature was below 28 degrees Fahrenheit. At that temperature or below, the salt "might melt just a little bit," like the top layer, and employees would "take a shovel and chip [the snow] away, if [they] could." When the top layer melted, a "slushy layer" would develop and vehicles running over the plate "would pack [the snow] down and you couldn't hardly do anything with it." Prior to February 16, 2007, Hoskins had slipped and fallen while going over the metal plates. She also had customers tell her the plates were slick. Hoskins stated she would mention to customers that the plates could be slick and for them to be careful. She also stated the station had cones but they were hardly ever used.

¶ 8 Danielle Osmundson's testimony was presented by her videotaped evidence deposition. She testified she worked at the BP gas station on February 16, 2007, and there was snow on the ground. During snowy conditions, employees were to clear the sidewalks and near the gas pumps. Both a shovel and salt were available. On the date in question, the snowplows had cleared snow from the lot. Osmundson stated the metal plates were "troublesome," as they "were always covered in ice and snow and very slippery." With the plates being slightly below ground, it was common for the snowplows to leave snow and ice on the them. Osmundson stated she would warn customers about the metal plates and tell them to be careful. Because the snowplow had left snow and/or ice on the metal plates, Osmundson and her boyfriend put salt down on the plates on the morning of plaintiff's fall. Approximately 20 to 30 minutes later, plaintiff parked her truck on top of a metal plate. Osmundson believed ice on the metal plate caused plaintiff to fall.

¶ 9 Plaintiff testified that on February 16, 2007, she and her husband drove from Champaign to Danville. With there being a snowstorm in the area a couple of days before, plaintiff stated it was "snowy out everywhere" but the roads were clear. She pulled into the gas station parking lot and "it looked like it had been cleaned." When she exited the vehicle, she stepped down, slipped, and broke her foot. After she was helped back into her truck, she looked down and noticed a circular spot of ice. As a result of her injury, plaintiff had to undergo three surgeries. She was unable to return to work as a certified nursing assistant and "couldn't get outside to do things [she] used to do."

ΒΆ 10 On cross-examination, plaintiff testified she did not know whether she fell on the metal plate or the concrete, stating it was "a gray spot." She agreed that she testified in her discovery deposition that she did not look down before exiting the truck. She also testified in her deposition ...


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