Reed v. Country Place Apartments-Moweaqua I, L.P.

54 N.E.3d 856

403 Ill.Dec. 715

Terry REED and Carolyn Reed, Plaintiffs–Appellants

v.COUNTRY PLACE APARTMENTS–MOWEAQUA I, L.P.; Country Place Apartments–Moweaqua II, L.P.; Professional Property Management, LLC; Country Place GP, LLC, a/k/a Country Place Apartments, GP, LLC, d/b/a Moweaqua Country Place Apartments I and II; and Unknown Owners, Defendants–Appellees/Third–Party Plaintiffs and Separate Appellants (Gary Powell, d/b/a Powell Lawn Care, Third–Party Defendant and Separate Appellee).

No. 5–15–0170.

Appellate Court of Illinois, Fifth District.

Opinion Filed March 21, 2016.

Modified Upon Denial of Rehearing June 13, 2016.

William E. Hourigan, Decatur, IL, for Terry and Carolyn Reed.

Jennifer L. Wolfe, David B. Mueller, Caroline J. Cassidy, Cassidy & Mueller, P.C., Peoria, IL, for Professional Property Management, LLC, et al.

Stephen R. Kaufmann, Michael P. Murphy, HeplerBroom, LLC, Springfield, IL, for Greg Powell, d/b/a Powell Lawn Care.

OPINION

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

¶ 1 The plaintiffs, Terry Reed and Carolyn Reed, appeal the order of the circuit court of Shelby County that granted the motion for summary judgment filed by the defendants: Country Place Apartments–Moweaqua I, L.P.; Country Place Apartments–Moweaqua II, L.P., Professional Property Management, LLC; Country Place GP, LLC, also known as Country Place Apartments, GP, LLC, doing business as Moweaqua Country Place Apartments I and II; and unknown owners. The defendants, as third-party plaintiffs and separate appellants, appeal the portion of that order that granted the motion for summary judgment filed by the third-party defendant, Gary Powell,¹ doing business as Powell Lawn Care (Powell). For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

¶ 2 FACTS

¶ 3 In the plaintiffs' third amended complaint (the complaint), which is the complaint upon which summary judgment was granted, the plaintiffs allege that Terry Reed was injured when he slipped and fell on ice on a ramp outside of an apartment building owned and/or managed by the defendants, said ramp leading from the apartment building to its parking lot. The complaint alleges severe personal injuries to Terry and loss of consortium with regard to Carolyn. According to the complaint, other pleadings, and information adduced in discovery, the plaintiffs and other family members arrived at the apartment building between 5:30 p.m. and 6 p.m. on December 24, 2010, to visit a relative who was a resident of the building. At the time they entered the apartment building, it had been sleeting and raining for approximately two hours. While they were inside the apartment building, the sleet and rain turned to snow. The family members alleged that on the night in question, the gutter that hung over the passageway that led to the ramp and the parking lot was packed with snow and was, as one family member put it, “dripping a constant drip” onto the ramp. The plaintiffs and other family members left the building, and Terry fell, between 10:30 p.m. and 10:45 p.m. Carolyn testified that at the time Terry fell, the surface was completely slick. Terry testified that when he arrived at the apartment building, he had no trouble getting up the sidewalk but that it was slippery, and the traction was like a sheet of ice, when he left.

¶ 4 The complaint alleges that the ice upon which Terry slipped was underneath the freshly fallen snow, and that, “at all times relevant, there was a leak in the down spout and guttering system over the passage way exiting to the ramp in question, which allowed substantial quantities of water to drip onto the sidewalk and find its way down the ramp, under the existing snowfall.” The complaint also alleges that the condition existed for a sufficient period of time for the defendants to have knowledge of it and to correct it. The complaint alleges that the defendants breached, in multiple ways, their duty to prevent unnatural accumulations of ice on the property, resulting in the personal injury and loss of consortium damages alleged.

¶ 5 In response to an earlier complaint, the plaintiffs' second amended complaint, the defendants had filed a motion for summary judgment, contending that because the location of the apartment building was residential, and because the second amended complaint alleged, inter alia, injuries and damages resulting from negligent snow and ice removal efforts by the defendants, the defendants were immune from liability under the provisions of the Illinois Snow and Ice Removal Act (the Act) (745 ILCS 75/0.01 et seq. (West 2010)), notwithstanding the allegations of negligence with regard to a purportedly leaking downspout and guttering system. The motion also alleged other grounds for summary judgment. Powell, who had been added to the case as a third-party defendant by the defendants following discovery, and who had provided gutter cleaning and snow and ice removal services at the apartment building (including, he testified in his deposition, snow and ice removal services on the date Terry fell), had previously filed a motion for summary judgment in which Powell made similar contentions with regard to the applicability of the Act and in which Powell contended he owed no duty to the plaintiffs.

¶ 6 In response to the motions for summary judgment, the plaintiffs, inter alia, asked the court for leave to file the complaint, which removed all allegations of negligence related to snow and ice removal efforts, but maintained the other allegations, as described above. Accordingly, the posturing of the plaintiffs' theory of the case at the time the court ruled on the motion for summary judgment was, essentially, that the snow and ice removal efforts undertaken hours before Terry's fall were irrelevant, because it was a premises defect, in conjunction with the rain, sleet, and snow that fell shortly before Terry's fall, that led to an unnatural accumulation of ice that in turn caused the fall and the accompanying injuries. In a five-page written order entered on April 7, 2015, the trial court granted the plaintiffs' motion for leave to file the complaint, ruling that the complaint did not “change or alter the grounds for summary judgment which are set forth in the respective motions” therefor, and explicitly stating that the court would consider the motions in the context of the allegations of the complaint, rather than those contained in the second amended complaint. The court ruled that because the plaintiffs claimed that Terry “fell as a consequence of an accumulation of snow and/or ice on December 24, 2010[,] after attempts to remove snow and ice” (emphasis in original), the condition existing at the time Terry fell “was that which was created or contributed to by those snow and ice removal efforts.” Therefore, the court reasoned, the Act provided immunity for the defendants and for Powell, because the complaint “ultimately seeks recovery from the [defendants] for acts or omissions on their part which were caused by acts or omissions resulting in the snow and icy conditions upon which” Terry fell. Accordingly, the court granted both motions for summary judgment. This timely appeal followed.

¶ 7 ANALYSIS

¶ 8 A motion for summary judgment should be granted if the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Murphy–Hylton v. Lieberman Management Services, Inc., 2015 IL App (1st) 142804, ¶ 24, 399 Ill.Dec. 768, 47 N.E.3d 273 (citing 735 ILCS 5/2–1005(c) (West 2010)). Although summary judgment can play an important role in promoting the prompt administration of justice, it is nevertheless a drastic measure and should be granted only where the moving party's right is so clear as to be free from doubt. Id. We review de novo a trial court order granting summary judgment. Id. Moreover, we review de novo the interpretation of a statute, as that is a question of law. Id.

¶ 9 On appeal, the plaintiffs contend the trial court erred when it granted the defendants' motion for summary judgment, because once the plaintiffs filed the complaint, which removed all the allegations that had been contained in the second amended complaint of negligence related to snow and ice removal efforts, the Act was no longer applicable to this case, and the plaintiffs should have been allowed to move forward with their common-law claims that the defendants breached, in multiple ways, their duty to prevent unnatural accumulations of ice on the property, as a result of the alleged negligence of the defendants with regard to the purportedly leaking downspout and guttering system. In support of this contention, the plaintiffs point out that because the Act was passed in derogation of the common-law, it must be strictly construed; therefore, according to the plaintiffs, although the plain language of the Act immunizes actions on residential properties that in the past would have supported a common-law action alleging negligent snow and ice removal efforts, the Act was never intended to, and in fact does not, immunize actions on residential properties related to allegations of negligence with regard to premises defects that, as alleged in the case at bar, caused unnatural accumulations of ice to form, said ice then causing injury. According to the plaintiffs, the latter common-law actions survive the General Assembly's passage of the Act.

¶ 10 The defendants' response to the plaintiffs' argument on appeal is twofold: (1) the summary judgment in favor of the defendants should be upheld because, even though the trial court did not base its order upon these grounds, the record demonstrates that the plaintiffs did not establish facts from which a duty owed by the defendants to the plaintiffs could be inferred; and (2) the Act immunizes the defendants, because to the extent...