Murphy-Hylton v. Lieberman Mgmt. Servs., Inc.

47 N.E.3d 273

Pamela MURPHY–HYLTON, Plaintiff–Appellant

v.LIEBERMAN MANAGEMENT SERVICES, INC., and Klein Creek Condominium, Defendants–Appellees.

No. 1–14–2804.

Appellate Court of Illinois, First District, First Division.

Dec. 21, 2015.

Michael W. Rathsack, Chicago, for appellant.

Richard J. Turiello, of Grant & Fanning, Chicago, for appellees.

OPINION

Justice CONNORS delivered the judgment of the court, with opinion.

¶ 1 On the morning of February 18, 2011, plaintiff fell while walking on the sidewalk outside her condominium in Carol Stream. She brought suit against defendants, Lieberman Management Services, Inc. (Lieberman) and Klein Creek Condominium (Klein) (collectively, defendants) alleging that their negligent maintenance of the property created an unnatural accumulation of ice, which caused her fall. The trial court granted defendants' motion for summary judgment, finding that the Snow and Ice Removal Act (Act) (745 ILCS 75/1 et seq. (West 2010)) provided immunity for defendants. Plaintiff filed this appeal, whereby the only issue presented is whether the immunity provided by the Act only applies to those who create a danger by negligent efforts to remove natural accumulations of ice and snow or instead applies to anyone whose defective property, whether because of factors such as negligent landscaping design or maintenance, creates an unnatural accumulation of ice or snow which causes injury. For the following reasons, we hold that, as a matter of law, the Act does not apply to plaintiff's negligence suit. Therefore, we reverse.

¶ 2 BACKGROUND

¶ 3 On June 13, 2011, plaintiff filed her original complaint against Lieberman, the management company of the property at issue. In subsequent pleadings, she added Klein, the property owner, and Granulawn Land Care,¹ the company responsible for landscaping and snow removal at the property. In their answer to plaintiff's complaint, defendants denied all material allegations against them. Defendants also asserted immunity pursuant to the Act as an affirmative defense. On December 14, 2012, the trial court granted defendants' motion to dismiss counts II and VI of plaintiff's second amended complaint, which alleged willful and wanton conduct by defendants, without prejudice and with leave to refile. Plaintiff never refiled those counts. During the course of discovery, numerous depositions were taken. The testimony from those depositions forms the basis for the following synopsis of the operative facts of this case.

¶ 4 In her deposition, plaintiff testified that on the morning of February 18, 2011, at approximately 8:30 a.m., she left her apartment to go to the department of motor vehicles to renew her license. She stated she walked out the common door of her building, down the sidewalk on the backside of her unit, turned to the left where the sidewalk came to a “T,” took about two steps, and fell. She landed on her right knee. She stated that she slipped on a patch of ice about the size of an 8 ½ by 11 inch piece of paper that she did not see before she fell. She knew that she had slipped on ice because while she was waiting for the paramedics to come, she lay on the ground and could feel that there was ice on the sidewalk. Plaintiff testified that the sidewalk was clear and did not appear to be wet, and there was no salt or other material present. She also stated that there was no snow on the grass adjacent to the sidewalk, recalling that the only snow present at this time was the 3 to 4 foot banks of snow at the ends of the parking lot where snow was piled up, approximately 60 feet from where she fell. On the day of her fall, plaintiff remembered the weather as being “bright and sunny and cold,” and she estimated temperatures in the twenties. She testified that there was no precipitation that day and that the last time she remembered there being any snowfall was during the “blizzard of 2011,” which she thought was a week or so prior to her fall.

¶ 5 Regarding the source of the ice that caused her fall, plaintiff, while looking at a diagram of the area where she fell, testified that “[t]here seem to be areas [on either side of the sidewalk] where water would settle, and it was from the drainage from either [of] the downspout things, and it would kind of accumulate there.” She agreed that instead of continuing to drain onto the parking lot, the water would, at times, collect and stay on the sidewalk. She testified that she believed the ice upon which she slipped came from previous draining and freezing, because there was no ice anywhere else. She further acknowledged, however, that this was just one possible explanation for the ice. Plaintiff stated that she had never previously slipped on ice in that area and that she never made any complaints to anyone about ice or lack of salt in that area.

¶ 6 Plaintiff's brother, Michael Melson, testified in his deposition that on the day of plaintiff's fall or the day after, he went to her condo to pick up her husband. There, he observed that the area where she fell was “puddly, wet” and that there was standing water present as it had warmed up by then. Melson stated that he did not recall if it was still icy, but that it was wet with puddles in certain areas. Melson further testified that he observed ice in that same area on one occasion during the month after plaintiff's fall when he saw plaintiff's husband fall. Melson recalled a time when he slipped on an ice patch and almost fell outside of plaintiff's building. Melson testified that the gutters, which he believed to be approximately 40 feet from the sidewalk where plaintiff fell, were unrelated to the water pooling on the sidewalk. Melson stated that the grade going towards the grass allowed the water to pool on the sidewalk and that it would be better if the grade went away from the grass, towards the parking lot.

¶ 7 Roger McGowan, plaintiff's neighbor at the time of her fall, testified at his deposition that on February 18, 2011, the same morning as plaintiff's fall, he slipped on ice and fell in the same area as plaintiff at approximately 6 a.m. Specifically, he stated, “I had come down the—the part of the sidewalk that is facing the north. I went to turn left to go to my parking space, and right on the corner there is where I slipped and fell.” When asked how he knew it was ice that he had slipped on, McGowan answered, “[i]n my job [making deliveries to residences], I've slipped on ice quite a few times, and I know it was ice that I was on. It was a cold morning.” McGowan stated that he had noticed ice along the sidewalk in question prior to the morning of his fall. He testified that prior to moving into that condominium complex in 2008, his delivery route included the complex, so he had been there on multiple occasions and previously noticed ice on the sidewalk in various areas. Additionally, he testified that of the times he noticed ice on the sidewalk, there were times when ice formed even if it had not snowed recently. When asked how he explained the presence of ice if not from the sky, McGowan averred, “[i]f you had a day where, let's say, there was maybe some snow or ice [that] fell, if that was closer to the building, if the sun was out that day, which would cause the ice or snow to start melting, and it would run downward toward the sidewalk. And then as the night came and it got cold, that's what would freeze up across the sidewalk.” McGowan stated that he had noticed this process occur prior to February 2011. However, he also stated that he did not know where the ice that caused his fall came from. McGowan testified that the drainage problems were obvious because “when the water runs across the walks, it freezes.” He further explained that dirt gets dragged down across the sidewalk because the water runs that way. McGowan further testified that he only told his wife about his fall, and that he did not report it to anyone else.

¶ 8 At his deposition, Jeff Graves, the president of the Klein Creek Condominium Association at the time of plaintiff's fall, testified that sometime in the afternoon of February 18, 2011, several hours after plaintiff's fall, he inspected the sidewalk at issue and observed that it was “bone dry.” He stated that at the time of his inspection, the temperature was in the forties or fifties and it was sunny. He could not say whether there was ice present at the time of plaintiff's fall. Graves further testified that he was not aware of any pooling on the sidewalks on the back of plaintiff's building in the area at issue, rather, the only water accumulation he was aware of were puddles after it rained.

¶ 9 David Selio, the owner of Granulawn and a resident of the Klein Creek condominium complex, testified in his deposition that Granulawn was hired by Klein to perform snow and ice removal services and landscaping services. For example, Granulawn was contracted to perform landscaping services such as spring/fall cleanup, mowing, fertilizing, weed control, pruning, and tree removal. Granulawn was also responsible for removing snow and ice from the parking lots, sidewalks, and stoops. Selio testified that when two or more inches of snow fell, he would automatically perform snow and ice removal, but for any snow fall less than two inches, he was required to get approval from Klein's board. Selio further testified that February 7, 2011, was the last day prior to plaintiff's fall that Granulawn provided snow removal services. Selio testified that Granulawn also performed drainage work for Klein. Specifically, he testified that in October 2011, he was hired to redirect the downspouts of two buildings, which were not located near the area of plaintiff's fall, because they were draining to the foundations of those buildings and there were concerns about mold and erosion.

¶ 10 April Knourek was employed by Lieberman to be Klein's property manager from 2005 to 2010, which was prior to plaintiff's fall. Regarding drainage issues, she testified in her...