There was an interesting ruling by the Illinois Supreme Court this month on the interpretation of a 1979 state law governing slip-and-fall lawsuits. It is commonly understood that homeowners are legally required to clear their walks of snow and ice. As a native Chicagoan, this lesson was engrained into me to the point that my kids mock me for shoveling the driveway even when the roads are impassable. I was raised that an uncleared driveway was a matter of public shame. Now, however, couch potatoes can rejoice. The Court has held that the Snow and Ice Removal Act shields property owners from liability if someone gets hurt. Of course, the snow or ice must be due to natural conditions. The case is Murphy-Hylton v. Lieberman Mgmt. Servs., 2016 IL 120394.
The case was brought by Pamela Murphy-Hyltonwho fell on an icy sidewalk outside her condo building in 2011, breaking her leg, knee and hip.
The association relied on an earlier law that gives immunity for accidents due to snow and ice. The law reflected the concern, as stated by the court, that “The problem with liability arising from a voluntary undertaking theory was that it potentially encouraged inaction.” The relevant Illinois provision states:
“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 [**15] 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.” 745 ILCS 75/2 (West 2010)
However, this does not mean that homeowners cannot be sued under negligence or related theories for “unnatural accumulations”:
In the context of liability of a landowner for a fall on snow and ice, the general rule in Illinois historically has been that under the common law, a landowner owes no duty to remove natural accumulations of snow and ice. . . . The rule recognizes that to hold otherwise would create an unreasonable burden of vigilance when considering that snowstorms cannot be foreseen or controlled and recognizes “‘the climatic vagaries of this area with its unpredictable snowfalls and frequent temperature changes.'” Tzakis v. Dominick’s Finer Foods, Inc., 356 Ill. App. 3d 740, 748, 826 N.E.2d 987, 292 Ill. Dec. 551 (2005) (quoting Lapidus v. Hahn, 115 Ill. App. 3d 795, 801, 450 N.E.2d 824, 71 Ill. Dec. 136 (1983)).
However, landowners do owe 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. Graham, 346 Ill. at 643. Thus, liability may arise where snow or ice “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, and where it has been there long enough to charge the responsible party with notice and knowledge of the dangerous condition.” Fitzsimons v. National Tea Co., 29 Ill. App. 2d 306, 318, 173 N.E.2d 534 (1961).
Various theories of liability for falls on an unnatural accumulation of ice have been recognized, including (1) a defective condition or negligent maintenance of the premises and (2) a voluntary undertaking theory. Webb v. Morgan, 176 Ill. App. 3d 378, 382-83, 531 N.E.2d 36, 125 Ill. Dec. 857 (1988). Under the negligent maintenance cases, courts recognize that the construction and maintenance of landowners’ premises are matters within their control. Therefore, to hold them to a duty of reasonable care under these circumstances does not impose an undue burden on them not to “add to the difficulties facing Illinois residents from natural accumulations of ice and snow by permitting unnatural accumulations due to defective construction or improper or insufficient maintenance of the premises.” Bloom v. Bistro Restaurant Ltd. Partnership, 304 Ill. App. 3d 707, 711, 710 N.E.2d 121, 237 Ill. Dec. 698 (1999). See, e.g., McLean v. Rockford Country Club, 352 Ill. App. 3d 229, 238, 816 N.E.2d 403, 287 Ill. Dec. 641 (2004) (alleging that specific building defects, including improperly hung and sized gutters and improperly pitched overhang roof, caused an unnatural accumulation of ice); Lapidus, 115 Ill. App. 3d at 800-01 (alleging that water dripped from leaky roof and collected in a depression on the porch and froze, causing an unnatural accumulation); McCann v. Bethesda Hospital, 80 Ill. App. 3d 544, 550-51, 400 N.E.2d 16, 35 Ill. Dec. 879 (1979) (excessive slope of the parking lot presented a question of fact whether the ice causing the fall was an unnatural accumulation).
Alternatively, under the voluntary undertaking theory, liability has been recognized where the landowner voluntarily undertakes the task of removing a natural accumulation of snow and ice and does so negligently, creating an unnatural accumulation on his property. Tzakis, 356 Ill. App. 3d at 746. See, e.g., Sims v. Block, 94 Ill. App. 2d 215, 236 N.E.2d 572 (1968) (landowner created an unnatural condition when he plowed snow up against the plaintiff’s parked car, creating a 5-to 6-inch ridge of ice along the car where plaintiff fell); Fitzsimons, 29 Ill. App. 2d at 314 (snow negligently piled in an area of a parking lot where alternate thawing and freezing caused it to drain across the lot and freeze, forming an unnatural accumulation of ice).
Notably, in this case, the Court found that this was indeed an “unnatural accumulation.” Here are the facts that led to denial of immunity under the Illinois law:
In early February 2011, a large snowstorm hit Carol Stream, producing snowfall in excess of 20 inches. On February 7, 2011, the snow removal and landscaping service hired by the association cleared snow and ice from the sidewalks of the complex. Eleven days later, on the morning of February 18, 2011, plaintiff left her condominium unit and was walking on the sidewalk behind the building on her way to the adjacent parking lot. As she was walking, she slipped and fell, suffering a fracture to her leg, knee, and hip. She filed suit, claiming that she fell on an unnatural accumulation of ice on the sidewalk. In her fourth amended complaint, she alleged, inter alia, that defendants were negligent in failing to properly direct the drainage of water and melted snow on the premises, failing to repair defective sidewalks, and failing to repair downspouts to prevent an unnatural accumulation of ice on the sidewalk. She additionally alleged that defendants failed to comply with various local building construction and maintenance codes.
Thus, the key was that the defendants failed to remove the snow and ice mounds from the rear entrance sidewalk — a negligent performance of the snow removal contract that caused the unnatural accumulation on the sidewalk. Given the tenor of the opinion, there will be added pressure to settle even though the direct medical costs are claimed to reach roughly $1 million.
Here is the opinion: http://www.illinoiscourts.gov/Opinions/SupremeCourt/2016/120394.pdf