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Hussey v. Chase Manor Condominium Association

Court of Appeals of Illinois, First District, Fourth Division

June 14, 2018

RITA HUSSEY, Plaintiff-Appellant,
v.
CHASE MANOR CONDOMINIUM ASSOCIATION and CONNECTED PROPERTY MANAGEMENT, LLC, Defendants-Appellees,

          Appeal from the Circuit Court of Cook County No. 15 L 876 HonorableKathy M. Flanagan Judge Presiding.

          JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Gordon concurred in the judgment and opinion.

          OPINION

          ELLIS JUSTICE

         ¶ 1 The question is whether an informal pathway behind a condominium building, through and beyond a parking area to the rear entrance of the building, is a "sidewalk" under the Snow and Ice Removal Act's immunity provision for the removal of snow or ice from a "sidewalk." See 745 ILCS 75/2 (West 2012). We hold that it is not a sidewalk. We read the term "sidewalk" as limited to the municipal right-of-way, the part of the public street reserved for pedestrian use that abuts private residential property. We reverse the grant of summary judgment for defendants and remand for further proceedings.

         ¶ 2 BACKGROUND

         ¶ 3 Plaintiff Rita Hussey slipped and fell on a patch of ice in the rear of her condominium building in Chicago. She sued the condo association, Chase Manor Condominium Association (Chase Manor), and the property-management company. Depending on how you interpret plaintiff's theory of recovery (a subject of dispute), plaintiff blames her fall on either negligent snow removal that created an unnatural, icy surface; a defect in the property-a slope in the pavement-that allowed an unnatural icy surface to form; or both.

         ¶ 4 The rear of the building, where the accident occurred, looks not very different from a standard alley in Chicago. There is a rear entrance to the condo building, which accesses some of the units but also the building's laundry room, basement, and utility room. Otherwise, the principal function of that rear area is to allow for the condo owners in the 14-unit building to park their cars.

         ¶ 5 The parking spaces, so to speak, are delineated by concrete parking blocks. Presumably due to space constraints, the cars do not all park in the same direction. Some parallel-park against the rear wall of the building (facing east-west). Others park perpendicular, in a north-south direction. Obviously, there is a middle space between the parallel-parked cars and the north-south parked cars-a space at least wide enough for a vehicle to travel to and from the various parking spaces.

         ¶ 6 That middle space is also wide enough, of course, for people to walk through. And unit owners sometimes did walk through that middle space, either to reach their cars or to access the building's rear entrance to do laundry or reach the basement. For some of the unit owners, including plaintiff, the easiest way to access the laundry facilities was not to travel within the interior of the building but to walk outside, around to the back, through that parking area, to the rear entrance.

         ¶ 7 That middle space, between the cars parked parallel to the rear wall and the north-south parking spaces, is where plaintiff slipped and fell while walking to the laundry room. The condo association president referred to that area as a "driveway" in his deposition, as cars obviously drive through that area to and from their respective parking spaces. The person who shoveled the snow, who once lived in that building, considered this area part of the "parking lot." Plaintiff also calls it a "parking lot." So do defendants, though they hasten to add that it was a "parking lot" that was "used as a pathway" or a "walkway" or even a "common-area walkway" for residents to walk to the rear entrance. Indeed, plaintiff herself testified in her deposition that she was using that area as a "pathway" to the laundry room when she slipped and fell.

         ¶ 8 Whatever characterization may be used, it is undisputed that this area where the accident happened was part of the condo building's private parking area and an area sometimes used by unit owners as a walking path to the rear entrance. So without placing too much emphasis on the precise terminology, for ease of reference, we will refer to it as defendants prefer, as the "parking-lot pathway."

         ¶ 9 In that area behind the building, there is a slope from the edge of the building down across the parking-lot pathway and onto the flat surface where the north-south cars park. A day or two before March 15, 2014, after a heavy snowfall, the condo association directed the man they hired for snow removal to plow the snow in the rear of the building. He piled the snow up against the wall of the building. Plaintiff estimated that the pile of snow was about 5½ feet high. Given the downward slope of the rear area, this pile of snow against the building's wall was uphill of the parking-lot pathway.

         ¶ 10 On March 15, plaintiff was walking through the parking-lot pathway to use the laundry room through the rear entrance. She slipped on a patch of ice near one of the parking blocks next to the building. She broke her ankle and required two surgeries.

         ¶ 11 Plaintiff filed what ended up as a three-count complaint. She alleged negligence against Chase Manor and the management company and added a count against Chase Manor for the alleged negligence of its agent, Jason Jackson, the man Chase Manor hired to shovel the snow.

         ¶ 12 Plaintiff's theory, argued and supported by an expert's affidavit, is that the snow pile melted when the temperatures warmed; following gravity's course, the melted snow travelled downhill onto the parking-lot pathway; the temperatures dropped again, causing the water to re-freeze; and thus ice formed on the parking-lot pathway.

         ¶ 13 Defendants moved for summary judgment, arguing that the Snow and Ice Removal Act provided them immunity for "remov[ing] or attempt[ing] to remove snow or ice from sidewalks abutting the property." 745 ILCS 75/2 (West 2012). The trial court agreed with defendants that the parking-lot pathway was a "sidewalk" within the Act's meaning, entered summary judgment for defendants, and denied a motion for reconsideration.

         ¶ 14 ANALYSIS

         ¶ 15 I

         ¶ 16 Summary judgment is proper when the record reveals no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012); Mashal v. City of Chicago, 2012 IL 112341, ¶ 49. The moving party's right to summary judgment must be clear and free from doubt. Id. We review de novo the trial court's grant of a motion for summary judgment, as well as legal questions such as the construction of a statute. Murphy-Hylton v. Lieberman Management Services, Inc., 2016 IL 120394, ¶ 16.

         ¶ 17 This case concerns the application of the Snow and Ice Removal Act. The Act is in derogation of the common law-it immunizes certain conduct that, at the common law, would have subjected a defendant to liability. Id. ¶ 29. So before we decide what the Act immunizes and what it does not, we briefly review the common law as it existed before the Act, much as our supreme court recently did in Murphy-Hylton. See id. ¶¶ 19-23.

         ¶ 18 It was historically true at the common law that owners or possessors of land owed no duty to remove natural accumulations of snow and ice from their property. Id. ¶ 19. The reason is that Illinois can have harsh, unpredictable, and rapidly-changing winter weather, and it would thus be unreasonable to hold landowners to a duty of immediate and effective removal of snow and ice. Id.; see Tzakis v. Dominick's Finer Foods, Inc., 356 Ill.App.3d 740, 748 (2005).

         ¶ 19 But unnatural accumulations of snow and ice were another story. Owners and possessors of land historically did owe a duty to prevent unnatural accumulations of snow and ice, provided they had notice of the dangerous condition. Murphy-Hylton, 2016 IL 120394, ¶ 20. That is, a defendant could be liable if the snow or ice accumulated " 'by artificial causes, ' " in an " 'unnatural way, ' " or " 'by defendant's own use of the area *** and creation of the condition.' " Id. (quoting Fitzsimons v. National Tea Co., 29 Ill.App.2d 306, 318 (1961)).

         ¶ 20 Generally speaking, liability for unnatural accumulations of snow or ice broke down into one of two theories of recovery. One of them was liability for a "defective condition" on the property, often stated as a defendant's "negligent maintenance" of the property for allowing that condition to exist. Id. ¶ 21. For example, certain building defects, such as improper gutters or an improperly pitched roof, could cause an unnatural accumulation of ice. See McLean v. Rockford Country Club, 352 Ill.App.3d 229, 238 (2004); Murphy-Hylton, 2016 IL 120394, ¶ 22 (citing McLean for this proposition).

         ¶ 21 The other theory of liability for the unnatural accumulation of snow or ice was the voluntary-undertaking theory, premised on the idea that owners or possessors of land who voluntarily undertake to remove natural accumulations of snow and ice must do so reasonably; if they do so negligently, they are liable for any resulting unnatural accumulation of that snow or ice. Murphy-Hylton, 2016 IL 120394, ¶ 22. One example, appropriate to our case, is the owner or possessor of the land piling snow in one area of a parking lot, whereupon it melts, spreads across the lot, and re-freezes, thus causing an unnatural sheet of ice across portions of the lot. See Fitzsimons, 29 Ill.App.2d at 314; Murphy-Hylton, 2016 IL 120394, ¶ 22 (citing Fitzsimons as example of voluntary-undertaking case).

         ¶ 22 The Snow and Ice Removal Act was passed in 1979 (see Pub. Act 81-591 (eff. Sept. 14, 1979)) and provided the following immunity:

"Any owner, lessor, occupant or other person in charge of any residential property, or any agent of or other person engaged by any such party, who removes or attempts to remove snow or ice from sidewalks abutting the property shall not be liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting from his or her acts or omissions unless the alleged misconduct was willful or wanton." (Emphasis added.) 745 ILCS 75/2 (West 2012).[1]

         ¶ 23 The supreme court recently addressed a question that had divided the appellate courts: While the Act clearly immunized landowners who voluntarily undertook to "remove snow or ice" (id.), did the Act also immunize landowners for defective conditions on the property that caused unnatural accumulations of snow?

         ¶ 24 In Murphy-Hylton, 2016 IL 120394, ¶ 29, the supreme court held that the Act did not abrogate common-law claims of a defective condition on the property that causes an unnatural accumulation of snow or ice. The supreme court emphasized that statutes in derogation of the common law must be strictly construed so as not to inadvertently abrogate existing common-law causes of action. Id. Thus, while the Act clearly abrogated the common-law claim of voluntary undertaking, the Act did not contain ...


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