Court of Appeals of Illinois, First District, Fourth Division
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.
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.
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
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
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
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
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.
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
22 The Snow and Ice Removal Act was passed in 1979 (see Pub.
Act 81-591 (eff. Sept. 14, 1979)) and provided the following
"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).
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