Winters v. MIMG LII Arbors at Eastland, LLC

2018 IL App (4th) 170669

115 N.E.3d 282

425 Ill.Dec. 727

Freddie WINTERS Jr., Plaintiff-Appellant,

v.MIMG LII ARBORS AT EASTLAND, LLC, d/b/a Arbors at Eastland, and Changing Seasons Lawn Landscape, LLC, Defendants-Appellees.

NO. 4-17-0669

Appellate Court of Illinois, Fourth District.

Filed August 14, 2018

Laura Castagna, of Kelly Law Offices, P.C., of Bloomington, for appellant.

Danielle N. Malaty, of Kopka Pinkus Dolin PC, of Chicago, for appellee MIMG LII Arbors at Eastland, LLC.

Barbara Snow Mirdo and Brian P. Thielen, of Thielen, Foley & Mirdo, LLC, of Bloomington, for other appellee.

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

¶ 1 In June 2015, plaintiff, Freddie Winters Jr., filed a two-count complaint against MIMG LII Arbors at Eastland, LLC, and Changing Seasons Lawn Landscape, LLC (hereinafter, Arbors and Changing Seasons, respectively). Plaintiff's complaint stated that he was a tenant of Arbors and asserted that Changing Seasons had a contractual obligation to clear snow from the apartment complex. Plaintiff's complaint further asserted that in January 2014, Changing Seasons pushed snow from Arbors' parking lot onto a sidewalk, with the result that the sidewalk was "blocked by a large mound of snow" that "forced the [p]laintiff to navigate around the snow pile" and caused him to "slip and [fall] due to the unnatural accumulation of snow."

¶ 2 Count I of plaintiff's complaint alleged that Arbors had a duty to exercise reasonable care for the safety of the tenants upon its property and that it breached this duty. Count II alleged that Changing Seasons owed plaintiff a duty that it breached when it negligently placed the pile of snow on the sidewalk.

¶ 3 Arbors and Changing Seasons each filed motions for summary judgment in which each argued that it owed no duty to plaintiff because the snow pile was an open and obvious condition. In March 2017, plaintiff filed responses to both motions for summary judgment, arguing that genuine issues of material fact remained as to whether the snow pile was open and obvious. Alternatively, plaintiff argued that (1) the deliberate encounter exception applied or (2) he was owed a duty under a traditional duty analysis.

¶ 4 In April 2017, the trial court granted the motions for summary judgment. The court concluded that "plaintiff has failed to raise a genuine issue of material fact * * * on the issue of duty." The court further concluded that "the large pile of snow and ice on which plaintiff fell was open and obvious as a matter of law and that the deliberate encounter exception does not apply to the facts of this case."

¶ 5 Plaintiff appeals, arguing only that the trial court erred by granting summary judgment because (1) a genuine issue of material fact remained as to whether the unnatural accumulation of snow and ice was an open and obvious condition, (2) a genuine issue of material fact existed as to whether the deliberate encounter exception to the open and obvious rule applied, and (3) plaintiff is owed a duty as a matter of law under a traditional duty analysis. We disagree and affirm.

¶ 6 I. BACKGROUND

¶ 7 A. The Complaint

¶ 8 In June 2015, plaintiff filed a two-count first amended complaint against Arbors and Changing Seasons. Plaintiff's complaint stated that he was a tenant of an apartment complex that Arbors owned and operated and asserted that Changing Seasons had a contractual obligation with Arbors to clear snow from the parking lot.

¶ 9 Plaintiff's complaint further asserted that in January 2014, Changing Seasons pushed snow from Arbors' parking lot onto a sidewalk, resulting in the snow completely covering a portion of the sidewalk. The complaint further alleged that in January 2014, plaintiff left his apartment to walk to Arbors' on-site laundry facility, which was "blocked by a large mound of snow" that "forced the [p]laintiff to navigate around the snow pile," causing him to "slip and [fall] due to the unnatural accumulation of snow." The complaint also asserted that he suffered serious physical injury.

¶ 10 Count I of plaintiff's complaint alleged that Arbors had a duty to exercise reasonable care for the safety of the tenants upon its property and that it was negligent by (1) failing to supervise snow removal from the parking lot so as not to create adverse conditions for its tenants, (2) allowing a snow pile created from snow removal operations to block the sidewalk, (3) failing to warn plaintiff of a dangerous condition on the property, (4) failing to adequately inspect the premises to prevent an unnatural accumulation of snow, (5) failing to provide a safe and alternative path from plaintiff's building to the on-site laundry facility, and (6) allowing conditions to exist on the property that imperiled the safety of one lawfully on the premises. Plaintiff further asserted that these breaches caused his injuries.

¶ 11 Count II alleged that Changing Seasons owed plaintiff a duty of reasonable care when it performed snow removal services. Plaintiff contended that Changing Seasons breached this duty by (1) failing to properly remove snow from the Arbors parking lot, (2) failing to properly supervise its agents, servants, and/or employees during snow removal operations so as not to create adverse conditions for the apartment complex's tenants, (3) pushing a snow pile from the parking lot onto the sidewalk area during snow removal operations, and (4) allowing a snow pile created during snow removal operations to block the sidewalk. Plaintiff asserted that he was injured because of these breaches.

¶ 12 B. Arbors' and Changing Seasons' Answers

¶ 13 In July 2015, Arbors filed an answer to plaintiff's complaint, which, in pertinent part, asserted the affirmative defenses of (1) comparative negligence and (2) the open and obvious doctrine. In December 2016, Changing Seasons filed an answer to the complaint, asserting the affirmative defense of contributory negligence.

¶ 14 C. Depositions and Other Evidence

¶ 15 During depositions, the parties often used an image of Arbors from Google Maps to illustrate the layout of the apartment complex. Similarly, we take judicial notice of an image of Arbors from Google Maps for the purpose of better understanding the statements made during depositions. People v. Clark , 406 Ill. App. 3d 622, 632-34, 346 Ill.Dec. 386, 940 N.E.2d 755, 766-67 (2010) (the Second District took judicial notice of an image from Google Maps to better understand statements made at trial). To better aid the reader, we have labeled the relevant locations and objects and included a compass rose.

¶ 16 1. The Plaintiff

¶ 17 Plaintiff testified that he was a long-term Arbors' tenant and was familiar with the layout of the apartment complex. He lived in building 9, which forms an "L shape" with building 10. Building 9 runs west to east, and building 10 runs north to south. The laundry facility was in the northern end of building 10.

¶ 18 Plaintiff testified that on the afternoon of January 19, 2014, he left his apartment for the laundry facility, exiting on the north side of building 9. He then proceeded west on the sidewalk, and when that sidewalk ended, he proceeded north upon the sidewalk that runs parallel with building 10. He testified that there was a large pile of snow on this northern sidewalk. He acknowledged that he saw this pile of snow before reaching it, and his visibility was not compromised. Plaintiff testified that there was a cutout in the middle of the snow pile, where it appeared other people had walked through. With his laundry basket in hand, plaintiff walked through the cutout in the snow pile. He testified that he was able to see where he was stepping while doing so, and he knew he was walking on snow and ice. Plaintiff testified that while walking through the snow pile, he fell and broke his ankle.

¶ 19 Plaintiff acknowledged that he was aware at the time of the accident that there were other ways to reach the laundry facility from his apartment. One alternative route was to exit the north side of building 9, walk west on the sidewalk, and then, once that sidewalk ended, walk south on the sidewalk in between building 9 and building 10. This path would eventually end with plaintiff entering the western side building 10.

¶ 20 A second alternative path would be to exit the south side of building 9, walk west on the sidewalk, and eventually enter building 10 on the western side. Plaintiff admitted that these alternative paths were an "option."

¶ 21 2. The Witness

¶ 22 Carmen Ashby, a witness to the accident, testified that she was at Arbors on January 19, 2014, to visit her daughter. She looked away after seeing plaintiff walking with a basket of clothes. She heard a "pop," and when she turned around, plaintiff had fallen. She stated she was approximately 30 to 40 feet away from plaintiff. She went over to check on him because he was not moving. She then called emergency services because plaintiff had a bone protruding from his leg.

¶ 23 3. The Owner of Changing Seasons

¶ 24 Brandt Bollmann testified that he is the owner of Changing Seasons. During January 2014, his company had a contract to clear snow from the "drive lanes" of the Arbors' parking lots. He stated that his company was not required to clear snow from the sidewalks but could do so for an extra charge.

¶ 25 Brandt stated that Arbors had designated areas where Changing Seasons was to pile snow. By December 2013, Brandt had already filled the designated areas with snow. He then gave Stephanie Lawrence, the Arbors' manager, the option of either hauling the snow away or finding other locations to push snow. Brandt testified that Lawrence said to push snow "anywhere that we could viably put snow outside of blocking parking spaces and parking lots."

¶ 26 Brandt stated that he and an employee cleared the Arbors' parking lot during the early morning of January 19, 2014. His employee drove a skid loader to push the snow, and he followed behind in a truck spreading salt. He admitted...