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Greene v. Wood River Trust

Court of Appeal of Illinois, Fourth District

October 25, 2013

Mitzi O. GREENE, Plaintiff-Appellant,
v.
WOOD RIVER TRUST; Taylor Realty, Inc., d/b/a/ Wood River Trust; Richard W. Taylor, d/b/a Wood River Trust; and Russell H. Taylor, d/b/a Wood River Trust, Defendants-Appellees, and Re/Max Realty Associates, d/b/a Wood River Trust; Renee Taylor, d/b/a Wood River Trust; and Jason W. Oakes, Respondents in Discovery.

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[Copyrighted Material Omitted]

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Miranda L. Soucie (argued), Spiros Law, P.C., Danville, for appellant.

Michael E. Raub (argued), Heyl, Royster, Voelker & Allen, Urbana, for appellees.

OPINION

HARRIS, Justice.

[376 Ill.Dec. 217] ¶ 1 On February 12, 2010, plaintiff, Mitzi O. Greene, slipped and fell on an icy walkway near the entrance of a residence she leased from defendants, Wood River Trust; Taylor Realty, Inc., d/b/a/ Wood River Trust; Richard W. Taylor, d/b/a Wood River Trust; and Russell H. Taylor, d/b/a Wood River Trust. After plaintiff filed a complaint alleging negligence, defendants moved to dismiss plaintiff's complaint pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)), arguing plaintiff's negligence claims were barred by the Snow and Ice Removal Act (Act) (745 ILCS 75/1 et seq. (West 2010)). The trial court dismissed plaintiff's complaint but allowed plaintiff to amend to allege willful and wanton misconduct, an exception to the immunities otherwise provided by the Act. Defendants moved to dismiss plaintiff's first amended complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-619 (West 2010)), which the court granted. In addition, the court allowed plaintiff to further amend her complaint to allege willful and wanton misconduct. Defendants moved to dismiss plaintiff's second amended complaint pursuant to section 2-615 of the Code, which the court granted.

¶ 2 Plaintiff appeals, arguing the trial court erred in (1) determining that the Act barred her negligence claims against defendants, (2) dismissing her second amended complaint because she properly pled a willful and wanton exception to the immunity otherwise provided by the Act (745 ILCS 75/2 (West 2010)), and (3) denying her request for additional time to locate individuals to aid in providing factual support for her claims. We affirm in part, reverse in part, and remand for further proceedings.

¶ 3 I. BACKGROUND

¶ 4 On January 23, 2012, plaintiff filed a complaint in negligence alleging that she slipped and fell near the entrance of a residence she leased from defendants due to the icy condition of defendants' walkway.

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[376 Ill.Dec. 218] Plaintiff alleged several theories of negligence concerning the walkway, including that defendants negligently failed to (1) provide a safe walkway in violation of the Premises Liability Act (740 ILCS 130/1 to 5 (West 2010)); (2) maintain and provide a properly pitched overhang roof; (3) provide properly hung and sized gutters; (4) provide properly hung and sized downspouts; (5) provide an adequate number of downspouts; (6) allow proper drainage to occur from the overhang roof onto the walkway; (7) correct or repair the gutters, downspouts, and overhang; (8) keep the gutters and downspouts " free and clear at all times of stored materials" ; (9) keep the gutters and downspouts " free and clear at all times of ice" ; and (10) keep the gutters and downspouts " free and clear at all times of mud and refuse." As a proximate result, plaintiff alleged, defendants' negligence resulted in an unnatural accumulation of water on a walkway which froze and caused plaintiff to slip and fall, suffering " serious and permanent injuries to her shoulder."

¶ 5 On March 2, 2012, defendants filed a motion to dismiss under section 2-619(a)(9) of the Code, arguing defendants were immune from liability under the Snow and Ice Removal Act. Defendants attached to their motion a contract, in effect at the time of plaintiff's fall, with Jason Oakes for snow and ice removal at multiple locations, including the residence plaintiff leased from defendants. Following a hearing, the trial court granted defendants' motion and dismissed plaintiff's complaint, finding the negligence claim was barred by the Act. Plaintiff sought leave to file an amended complaint to allege willful and wanton misconduct, an exception to the immunities otherwise provided by the Act. The court granted plaintiff's motion.

¶ 6 On May 22, 2012, plaintiff filed her first amended complaint alleging defendants engaged in willful and wanton misconduct. Plaintiff's willful and wanton claim reiterated the negligence claim allegations, adding that defendants acted with " utter indifference to or conscious disregard" and " with a reckless disregard for the safety" of plaintiff. Defendants moved to dismiss plaintiff's first amended complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)), arguing plaintiff's allegations that defendants failed to perform routine maintenance of gutters and downspouts did not constitute willful and wanton misconduct. Following a hearing, the trial court ...


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