Mickens v. CPS Chi. Parking, LLC

2019 IL App (1st) 180156

131 N.E.3d 1158

433 Ill.Dec. 313

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.

No. 1-18-0156

Appellate Court of Illinois, First District, THIRD DIVISION.

June 26, 2019

Neal S. Gainsberg and Nicholas Kreitman, of Gainsberg Law, P.C., of Chicago, for appellant.

Justin J. Power, of Hilbert & Power, Ltd., of Chicago, for appellees.

JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 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, 180 Ill.Dec. 691, 607 N.E.2d 1204 (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, 420 Ill.Dec. 857, 98 N.E.3d 474. 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, 402 Ill.Dec. 681, 52 N.E.3d 602.

¶ 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...