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Mickens v. CPS Chicago Parking, LLC

Court of Appeals of Illinois, First District, Third Division

June 26, 2019

JAUKITA MICKENS, Plaintiff-Appellant,
v.
CPS CHICAGO PARKING, LLC, an Illinois Limited Liability Company, FOUR SEASONS SERVICES, INC., an Illinois Corporation, and NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION, d/b/a Metra, an Illinois Not-for-Profit Corporation, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County 15 L 9864 Honorable John P. Callahan, Jr., Judge Presiding

          JUSTICE ELLIS delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.

          OPINION

          ELLIS, JUSTICE.

         ¶ 1 Plaintiff, Jaukita Mickens, was seriously injured when she slipped and fell on ice at a Metra train station. She alleged that defendants (Metra, the property manager, and a snow-removal contractor) negligently failed to clear the pedestrian ramp where she fell. Defendants moved for summary judgment, claiming plaintiff failed to show an unnatural accumulation of ice that would render them liable. The circuit court granted summary judgment to all defendants.

         ¶ 2 We reverse and remand. We find a question of fact as to whether the ice formed naturally or unnaturally. And we hold that the property manager and snow-removal contractor could be held liable for even natural accumulations of snow or ice.

         ¶ 3 BACKGROUND

         ¶ 4 In the early morning of Monday, February 9, 2015, Mickens was walking down a pedestrian ramp at a Metra station in Harvey (Metra Station) when she slipped on a sheet of ice that she estimated as an inch thick. The slip and fall caused a severe ankle injury that required next-day emergency surgery. She missed about three months of work.

         ¶ 5 Mickens is a medical assistant who works at one of Northwestern Hospital's outpatient locations in Chicago. On the morning of her fall, Mickens and her daughter were at the Metra Station for a 6:59 a.m. train into Chicago. As usual, Mickens drove to the Metra Station and parked in the paid parking lot. To pay for parking, customers use stand-alone pay boxes. Mickens and her daughter walked toward the train platform together, but because Mickens was paying, she stopped at a pay box while her daughter continued toward a nearby concrete ramp down to the platform. After paying, Mickens walked down the ramp behind her daughter.

         ¶ 6 While walking down the ramp, she described noticing "slush" on the ground. To her, "it looked like it could have snowed like maybe the weekend and it was starting to melt." As she was walking, she fell and seriously injured her ankle. According to her, the ground "didn't feel slippery. It felt like a lump. Like my foot hit something, which I'm assuming it probably was the ice I thought that was slush, so it probably hit the ice." She said "it appeared to be just wet, like a wet slush. It didn't appear to be slippery at all." She tried to get up but couldn't. While on the ground, she "felt ice. It felt, hard ice. Not the slush that I thought was there. It was like, hard ice." Mickens was unable to get up and was taken to the hospital by ambulance.

         ¶ 7 Mickens stated that she never saw a lump her foot hit. To her, the ground just looked like "slush." It was not until after she had fallen that she realized the "slush" was actually a solid sheet of ice "maybe one inch or so" thick. She said "it looked like it had snowed and the ice-the snow had hardened and it hadn't been shoveled. Like, it looked untreated." She estimated the sheet of ice covered the entire width of the ramp, though she couldn't be certain.

         ¶ 8 Mickens sued Northeastern Illinois Regional Commuter Railroad Corporation, d/b/a Metra (Metra), CPS Chicago Parking, LLC (CPS), and Four Seasons Services, Inc. (Four Seasons). Metra owned and operated the Metra Station where Mickens was injured. CPS served as the property manager per its contract with Metra. CPS, in turn, contracted with Four Seasons to perform snow and ice removal at the Metra Station.

         ¶ 9 At the time of Mickens's fall, David Hayes was the fleet supervisor at Four Seasons. In addition to his supervisory duties, he also performed plowing services and personally performed all plowing and salting operations at the Metra Station. At his deposition, Hayes testified that there is no regular schedule for inspecting the Metra Station or providing services; instead, services are provided depending on the weather. To determine when plowing and salting is required, he constantly monitors various weather reports and discusses the course of action with CPS employee Eric Bowman.

         ¶ 10 Hayes acknowledged that Mickens slipped at a location where he was required to provide snow and ice removal services. He testified that the last time he plowed and salted the Metra Station was the night of Wednesday, February 4-several days before the accident on the morning of Monday, February 9. The work took about four hours; he finished sometime in the early morning of February 5. Hayes stated that he would have spent about five minutes shoveling and salting the area where Mickens fell.

         ¶ 11 In the afternoon of February 5, Hayes returned to the Metra Station. He listed two reasons for doing so. One was to ensure that the premises still "look[ed] good." That's something he typically does after a plowing job, he said: "I check stations to make sure that the ice melted and everything else looks good, snow doesn't need to be ever removed to provide more room for another snowfall coming." A second reason, related to the first one, was to determine whether any "loader" work was necessary, meaning if it was necessary to transport the plowed snow from the platforms and pay stations to the rear of the station, in case another snowfall were to soon occur.

         ¶ 12 Hayes testified that during this February 5 inspection of the Metra Station, "there was no snow on the sidewalks, in the parking lot left from the prior storm." At another point, he testified (albeit more generally, not specific to this February 5 plowing) that when he shovels a walkway, he shovels the snow "[a]way from the walk areas, the common area."

         ¶ 13 After doing his look-over on February 5, Hayes did not return to the Metra Station until February 26, when he was required to plow and salt it again.

         ¶ 14 The defendants moved for summary judgment, claiming that they owed no duty to remove natural accumulations of snow and ice, and there was no evidence in the record that the ice on which Mickens fell was anything but a natural accumulation. In response, Mickens argued that due to the Metra, CPS, and Four Seasons contracts, the defendants had undertaken the duty to remove even natural accumulations of snow and ice. Alternatively, she argued that a question of fact existed as to whether her fall was caused by an unnatural accumulation of snow and ice. As part of her response, Mickens referenced a complaint made to Metra by another person, Fiesha Burge, about the icy conditions of the station on February 5-after Hayes would have performed snow and ice removal services. The defendants replied that this mention of Burge's complaint was inadmissible.

         ¶ 15 Shortly after defendants' reply, Mickens filed an emergency motion to file a verified statement of Burge. Her motion sought leave to file the affidavit of Burge and to supplement her response with the affidavit. The court granted Mickens leave to file the affidavit but gave defendants leave to file a motion to strike the same affidavit, which they did.

         ¶ 16 In her affidavit, Burge swore that she slipped "on ice that had not been salted in the parking lot" at the Metra Station at about 7:45 a.m. on February 5. She believed that "no area of the station had been salted." She "saw that there was snow piled around the parking lot pay box, the ramp near the pay box, and elsewhere at the [Metra Station]." She "saw that sheets of ice had formed on the ground at the [Metra Station], especially around the pay box and ramp near it." She went on to state that she believed this ice was caused by snow that had melted and refrozen. That same day, Burge called Metra to complain about the ice and her fall.

         ¶ 17 The court entered summary judgment for all defendants in an order that does not explain its reasoning other than to reference the reasons given in open court. We have no transcript of that hearing, however. Nor does the record contain any indication of a ruling on the motion to strike Burge's affidavit.

         ¶ 18 Mickens moved for reconsideration. In this motion, in addition to her natural-accumulation argument, she asked the court to "revisit its initial decision regarding unnatural accumulation." Her brief on appeal states that the court made a finding "that Plaintiff fell on a natural accumulation of snow and ice and granted summary judgment as to all Defendants."

         ¶ 19 The court denied Mickens's motion to reconsider. This appeal followed.

         ¶ 20 ANALYSIS

         ¶ 21 Summary judgment is appropriate if "there is no genuine issue as to any material fact and *** the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2016). It is a drastic measure and should only be granted where the movant's right to judgment is free and clear from doubt. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90, 102 (1992). We construe the record strictly against the movant and in favor of the nonmoving party. Allen v. Cam Girls, LLC, 2017 IL App (1st) 163340, ¶ 28. To defeat summary judgment, the nonmoving party must present some evidence that arguably entitles it to judgment. Id. We review a grant of summary judgment de novo, meaning we perform the same analysis as the trial court. A.M. Realty Western L.L.C. v. MSMC Realty, L.L.C., 2016 IL App (1st) 151087, ¶ 87.

         ¶ 22 One of the defendants here, Metra, is the owner of the Metra Station. CPS was the property manager that, as we will see, had a duty to remove ice and snow in its contract with Metra. Four Seasons was the subcontractor whose sole function was snow and ice removal. The law distinguishes between landowners and those who contract with the landowner to remove snow and ice. So we must consider the liability of Metra separately and apart from that of the other defendants.

         ¶ 23 I

         ¶ 24 We begin with the liability of Metra for the ice that formed on the ramp, ice on which Mickens testified that she slipped and injured herself.

         ¶ 25 A

         ¶ 26 Generally, landowners and occupiers have no common-law duty to remove natural accumulations of snow and ice from their property. Murphy-Hylton v. Lieberman Management Services, Inc., 2016 IL 120394, ¶ 19; Krywin v. Chicago Transit Authority, 238 Ill.2d 215, 232 (2010) (applying natural-accumulation rule to property of common carriers). A "natural accumulation" is just what it suggests-an accumulation of snow or ice caused by the mere falling and settling of snow or precipitation.

         ¶ 27 Illinois has this "natural-accumulation" rule, relieving landowners of the duty to remove naturally fallen snow or naturally formed ice, because "to hold otherwise would create an unreasonable burden of vigilance" on a landowner given"' "the climactic vagaries" '" of Illinois,"' "with its unpredictable snowfalls and frequent temperature changes." '" Murphy-Hylton, 2016 IL 120394, ¶ 19 (quoting Tzakis v. Dominick's Finer Foods, Inc., 356 Ill.App.3d 740, 748 (2005), quoting Lapidus v. Hahn, 115 Ill.App.3d 795, 801 (1983)); see also Hussey v. Chase Manor Condominium Ass'n, 2018 IL App (1st) 170437, ¶ 18 (natural-accumulation rule based on "harsh, unpredictable, and rapidly changing winter weather" in Illinois, for which it would be "unreasonable to hold landowners to a duty of immediate and effective removal of snow and ice").

         ¶ 28 So if a landowner fails to remove snow or ice that naturally accumulated-either because it made no attempt at removal, or because it made some attempt but did not remove all the snow or ice-that landowner is not liable for injuries caused by those natural accumulations, no matter how dangerous they may be. Murphy-Hylton, 2016 IL 120394, ¶ 19; Graf v. St. Luke's Evangelical Lutheran Church, 253 Ill.App.3d 588, 591-92 (1993) ("The mere removal of snow leaving a natural ice formation underneath does not constitute negligence."); Eichler v. Plitt Theatres, Inc., 167 Ill.App.3d 685, 692 (1988) (same); Timmons v. Turski, 103 Ill.App.3d 36, 38 (1981) (same); McCann v. Bethesda Hospital, 80 Ill.App.3d 544, 549 (1979) (same).

         ¶ 29 But the law treats unnatural accumulations of snow or ice differently. The law imposes on landowners "a duty of reasonable care to prevent unnatural accumulations of ice and snow on their premises where they have actual or constructive knowledge of the dangerous condition." Murphy-Hylton, 2016 IL 120394, ¶ 20. An accumulation of snow or ice is "unnatural" if it "accumulated by artificial causes or in an unnatural way or by a defendant's own use of the area concerned and creation of the condition." (Internal quotation marks omitted.) Id.

         ¶ 30 For example, a mound or pile of snow created by snow-removal efforts has long been considered an unnatural accumulation, as the pile was created not by naturally falling snow but by shoveling or plowing. See, e.g., Ziencina v. County of Cook, 188 Ill.2d 1, 13 (1999); Russell v. Village of Lake Villa, 335 Ill.App.3d 990, 994 (2002); Sims v. Block, 94 Ill.App.2d 215, 223 (1968). Likewise, if that mound of snow melts, leading to water runoff that refreezes into a sheet of ice, we have consistently found that sheet of ice to be an unnatural condition. See, e.g., Russell, 335 Ill.App.3d at 995; Hussey, 2018 IL App (1st) 170437, ¶ 21; Fitzsimons v. National Tea Co., 29 Ill.App.2d 306, 314 (1961); see Murphy-Hylton, 2016 IL 120394, ¶ 22.

         ¶ 31 Here, Mickens testified in her deposition to slipping on ice on the Metra ramp. So the question is how that ice got there. Did it naturally form, meaning Four Seasons failed to remove it when it plowed the Metra Station on February 4 and 5? Or, as Mickens claims, was it an unnatural result of Four Seasons negligently plowing the ramp and surrounding area? More pointedly for our purposes, of course, the question is whether there is a disputed issue of fact on this question, precluding summary judgment.

         ¶ 32 B

         ¶ 33 Mickens says that this case presents a classic example of an unnatural condition. Her theory is that the sheet of ice formed when Four Seasons piled snow into mounds on and around the Metra ramp, after which the temperatures warmed and the snow melted, followed by a drop in the temperatures that led the water runoff to refreeze, creating dangerous ice on the ramp. At a minimum, she argues, there is sufficient evidence of this scenario to create a question of fact, precluding summary judgment.

         ¶ 34 Metra, on the other hand, claims that there is no evidence of an unnatural condition here. The only other possibility, then, is that the ice was the product of natural accumulation, and Metra owed no duty to remove it or otherwise protect Mickens from it.

         ¶ 35 The trial court did not specify its basis for summary judgment in its written order, and there is no transcript of that hearing from which that order was produced. That does not preclude our review, as we consider the question de novo, so the trial court's reasoning is immaterial. Fields v. Schaumburg Firefighters' Pension Board, 383 Ill.App.3d 209, 223 (2008). In any event, from the parties' briefing below and before this court, it certainly appears that the trial court ruled that there was no evidence of an unnatural accumulation.

         ¶ 36 As noted, we draw all reasonable inferences at this stage in favor of the nonmovant, Mickens, and we determine not whether Mickens is entitled to judgment but whether she arguably could win, based on the evidence at hand. Allen, 2017 IL App (1st) 163340, ¶ 28. We remain mindful as well that it is Mickens's burden to demonstrate an identifiable link between the snow pile and the ice on which she slipped. See Hornacek v. 5th Avenue Property Management, 2011 IL App (1st) 103502, ¶ 32; Russell, 335 Ill.App.3d at 996.

         ¶ 37 Taking the evidence in the light most favorable to Mickens, the record shows that it snowed on Wednesday, February 4, and Four Seasons plowed the snow later that night and into the early hours of February 5. Later that morning, February 5, the eyewitness Fiesha Burge (testifying via affidavit), besides slipping on ice herself in the Metra Station parking lot, noted "snow piled around the parking lot pay box, the ramp near the pay box, and elsewhere" at the Metra Station. She also "saw that sheets of ice had formed on the ground at the [Metra Station], especially around the pay box and ramp near it." It is undisputed that the pay box was near the top of the ramp, and that the ramp sloped downhill.

         ¶ 38 Then there is the testimony of David Hayes, the Four Seasons supervisor who personally plowed the snow at the Metra Station on late February 4 into early February 5. His testimony, to some extent, contradicts that of Burge and, to some extent, supports it. He claimed that he typically inspects his snowplowing work the day after to make sure that any ice has melted and that snow doesn't need to be removed to provide more room for another snowfall. And when he returned to review the Metra Station in the late afternoon of February 5-which would have been anywhere from approximately 12 to 15 hours after he plowed the station-"there was no snow on the sidewalks, in the parking lot left from the prior storm."

         ¶ 39 Two points about Hayes's testimony. First, we might be able to glean from his testimony that, when he shoveled the Metra Station on February 4-5, he removed all the snow off the ramp (where Mickens fell) and by the pay station immediately above the ramp. His reference to "no snow on the sidewalks" was vague. Elsewhere in his deposition, he testified more generally that he would shovel that ramp down to the surface, and that he would move the snow "[a]way from the walk areas, the common areas." He didn't quite say that's what he did on February 4 and 5. But even if we took his testimony as such, that testimony is obviously inconsistent with the testimony of Burge, who saw snow piles by the pay station right by the ramp, as well as on the ramp itself, on the morning of February 5. We would resolve any contradictions in the testimony, at this stage, ...


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