Moscovitch v. Westfield, LLC

1

2024 IL App (1st) 221453-U

JONATHAN MOSCOVITCH, Plaintiff-Appellant, v. WESTFIELD, LLC, WESTFIELD AMERICA G.P., INC., WESTFIELD PROPERTY MANAGEMENT, LLC, SNOW SYSTEMS, INC., and OLD ORCHARD URBAN LIMITED PARTNERSHIP, Defendants.

Snow Systems, Inc., Defendant-Appellant.

No. 1-22-1453

Court of Appeals of Illinois, First District, Second Division

March 12, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County, Illinois, County Department, Law Division No. 2020 L 009288 Honorable Gerald Cleary, Judge Presiding.

ELLIS JUSTICE delivered the judgment of the court. Presiding Justice Howse and Justice Cobbs concurred in the judgment.

ORDER

ELLIS JUSTICE

¶ 1 Held: Affirmed. Court properly entered summary judgment in favor of snow-removal company. Undisputed facts showed that company complied in all respects with snow-removal contract with shopping mall owner.

¶ 2 Plaintiff Jonathan Moscovitch suffered serious injuries after slipping and falling on an accumulation of snow and ice outside a restaurant in a shopping mall in Skokie, Illinois. He sued not only the owner of the shopping mall but the snow-removal company with whom the owner contracted to remove snow and ice from the premises.

¶ 3 The snow-removal contractor moved for summary judgment arguing that the scope of its duty in tort was limited to its contractual undertaking with the mall owner, and the undisputed evidence demonstrated that the contractor complied with the terms of that contract in full. The trial court agreed and entered summary judgment in favor of the snow-removal contractor. We agree as well and affirm.

¶ 4 BACKGROUND

¶ 5 On January 17, 2020, plaintiff ate dinner with his wife and some friends at the Roka Akor restaurant in the Old Orchard shopping mall. He arrived at approximately 7:30 pm, by which time snow had fallen for a few hours at least. He left the restaurant at around 10:45 pm. He had not consumed any alcohol; as a rule he did not.

¶ 6 After dinner, he walked to his car in the nearby east parking lot. The lot had not been salted or plowed. Plaintiff slipped on a smooth sheet of ice beneath the snow. The asphalt where he slipped, it was later determined, contained a depression where water had filled, then frozen into ice before being blanketed by snow.

¶ 7 Plaintiff fractured his shoulder in the fall and was taken to the hospital. His injury required surgery, including the placement of a metal plate and screws in his shoulder.

¶ 8 Plaintiff sued the owner of the shopping mall, Westfield Property Management, LLC ("Westfield"), as well as Snow Systems, Inc., a snow-and-ice-removal company with which Westfield contracted to remove snow and ice from the Old Orchard property.

¶ 9 I. The Contract

¶ 10 Well before this incident, Westfield and Snow Systems had entered into a written contract defining the terms and scope of the work. The contract contemplated the involvement, as well, of an engineering firm hired by Westfield to supervise maintenance at the shopping mall, Able Engineering (Able).

¶ 11 The contract provided that the "contractor," Snow Systems, "agrees to perform the services specifically described on Exhibit A, attached hereto and incorporated herein by reference."

¶ 12 Exhibit A, entitled "Scope of Services and Schedule of Performance," provided that, if a snowfall of greater than one inch were anticipated, "Able calls contractor who then dispatches staff to site at specified time," that "[c]ontractor responds within 2 hours of notification," and that "[c]ontractor is responsible for snow removal and salting of all parking lots roads, entrances, service yards, interior mall, and sidewalks."

¶ 13 Exhibit A provided, for anticipated snowfall of one inch or less, that "Able calls contractor to salt parking lots, roads, entrances, and service yards, as needed, determined by Able. Contractor to be on site within 1 hour to ensure mall is maintained clear."

¶ 14 The "general" terms of Exhibit A included the following:

■ "Each contractor who works on property must sign in/out with security each time there is a snow event."

■ "Contractor will provide labor for sidewalk cleaning and salting as directed by Center Management."

■ "Work shall be performed during the night or early morning hours."

¶ 15 The "general" terms of Exhibit A also contained this: "Snow to be plowed based on priority map attached." As promised, a priority map was attached to the exhibit and thus to the contract. The areas given "priority 1" status included the ring road and roadway entrances into the shopping mall. (The "ring road" is the road within the shopping mall property that encircles the mall, allowing customers to reach different parts of it by car without traveling through the parking lots.)

¶ 16 The various parking lots in the mall were also given various priorities; the Roka Akor parking lot where plaintiff's injury occurred was given "priority 2" status.

¶ 17 Finally, though Exhibit A to the contract contained "general" provisions, the contract itself contained several "general" provisions as well. The "manager" referenced below meant Westfield. Relevant here are the following:

■ "Contractor agrees that its Services shall be scheduled and performed only as authorized by Manager in Manager's sole and absolute discretion. If Manager determines that work proposed by Contractor will be disruptive if performed while the Shopping Center is open for business, than Contractor shall perform the proposed work during times when the Shopping Center is not open for business as Manager may direct."

■ "Contractor agrees to punctually, diligently and fully perform all of the Services at the time scheduled by Manager, which shall be subject to change by Manager as it deems, in its sole discretion, necessary or convenient to the overall operation and maintenance of the Shopping Center."

¶ 18 Snow Systems was granted this contract after a competitive bidding process. Snow Systems had no input into any provisions of the contract but accepted the contract as is.

¶ 19 II. The Parties' Performance of the Contract

¶ 20 The record includes deposition testimony from individuals from Westfield, Able, and Snow Systems who had knowledge of the snow-removal process at the shopping mall. The deponents agreed that the authority to determine when Snow Systems would dispatch to Old Orchard for services was made by Westfield or its agent, Able-but not by Snow Systems. That was the sworn testimony of Westfield's general manager, Serge Khalimsky; Able's assistant maintenance supervisor for Old Orchard, Bill Knierim; and Tom Walsh, who at the relevant time was the Snow Systems area manager responsible for the region including Old Orchard.

¶ 21 Khalimsky testified that he relied on the expertise of Able to coordinate snow and ice removal with Snow Systems. He agreed that "Westfield gave Able the authority to deal with Snow Systems and arrange snow and ice control services on a day-to-day basis[.]" He likewise agreed that "Able managed the snow and ice control relationship with Snow Systems on Westfield's behalf so that Westfield didn't have to do so on a day-to-day basis during winter months[.]" To the extent that a Westfield employee engaged with Able, it was not Khalimsky but Westfield's facility director, Hugh Lafferty.

¶ 22 Bill Knierim of Able testified that typically, before Snow Systems would be dispatched to Old Orchard, a representative of Westfield, Able, and Snow Systems would talk by conference phone call. Westfield or Able, if Westfield were not present, would have the final say in when Snow Systems would be deployed, how many Snow Systems employees would be deployed, and what equipment they would use, consistent with the contract. But as the Westfield general manager, Khalimsky, noted, Westfield and Able would sometimes solicit the input of Snow Systems given its expertise in the matter.

¶ 23 Tom Walsh, the Snow Systems area manager, and Miguel Cabral, one of the Snow Systems employees originally dispatched to Old Orchard on the night in question (and who had worked for Snow Systems at Old Orchard since 2017 or 2018), each testified that they were directed by Westfield as to how many Snow Systems employees would be dispatched and at what time. They both also testified that Westfield would typically have Snow Systems bring only two employees at first and then wait until later in the evening to bring in additional employees to push the accumulated snow. They each were of the opinion that Westfield tended to call in Snow Systems far later in the evening than many other commercial clients in the area.

¶ 24 III. The Night at Issue

¶ 25 On the night of plaintiff's fall, January 17, 2020 two Snow Systems employees were initially dispatched to Old Orchard, Miguel Cabral and his wife, Destiny. They signed in with Old Orchard security at 6:30 pm. Per the priority map and direction of Westfield/Able, they began by pre-salting the ring road and main roadways. Miguel drove the truck, Destiny was the operator-meaning she filled and refilled the salt that was being dropped on the pavement. Miguel testified that it was common to pre-salt roads before an impending snowstorm.

¶ 26 Between 2:00 and 3:00 am the following morning, seven additional Snow Systems employees arrived. Miguel testified that it was not unusual for two workers to arrive first and conduct pre-salting before additional employees arrived-particularly when, as that night, the snowfall grew heavier as time wore on, resulting in greater accumulations. The decision to bring additional employees, like the decision to initially bring the two...