Greene v. Wood River Trust , 2013 WL 5773348 ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Greene v. Wood River Trust, 2013 IL App (4th) 130036
Appellate Court MITZI O. GREENE, Plaintiff-Appellant, v. WOOD RIVER TRUST;
Caption TAYLOR REALTY, INC., d/b/a WOOD RIVER TRUST; RICHARD
W. TAYLOR, d/b/a WOOD RIVER TRUST; and RUSSELL H.
TAYLOR, d/b/a WOOD RIVER TRUST, Defendants-Appellees, and
RE/MAX REALTY ASSOCIATES, d/b/a WOOD RIVER TRUST;
RENEE TAYLOR, d/b/a WOOD RIVER TRUST; and JASON W.
OAKES, Respondents in Discovery.
District & No. Fourth District
Docket No. 4-13-0036
Filed October 25, 2013
Held In an action for the injuries plaintiff sustained when she slipped and fell
(Note: This syllabus on an icy walkway at her leased residence, the trial court properly
constitutes no part of dismissed her willful and wanton claims and her request for additional
the opinion of the court time to locate individuals who could support her claims, since plaintiff’s
but has been prepared allegations did not show a deliberate intention to harm or a conscious
by the Reporter of disregard for plaintiff’s welfare and she had 11 months to find supporting
Decisions for the witnesses, but the dismissal of her negligence claims pursuant to the
convenience of the Snow and Ice Removal Act was reversed, since the Act does not provide
reader.)
immunity for claims based on an icy condition caused by defective
construction or improper or insufficient maintenance.
Decision Under Appeal from the Circuit Court of Champaign County, No. 12-L-14; the
Review Hon. Michael Q. Jones, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded with directions.
Counsel on Miranda L. Soucie (argued), of Spiros Law, P.C., of Danville, for
Appeal appellant.
Michael E. Raub (argued), of Heyl, Royster, Voelker & Allen, of Urbana,
for appellees.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Steigmann and Justice Holder White concurred in the
judgment and opinion.
OPINION
¶1 On February 12, 2010, plaintiff, Mitzi O. Greene, slipped and fell on an icy walkway near
the entrance of a residence she leased from defendants, Wood River Trust; Taylor Realty,
Inc., d/b/a/ Wood River Trust; Richard W. Taylor, d/b/a Wood River Trust; and Russell H.
Taylor, d/b/a Wood River Trust. After plaintiff filed a complaint alleging negligence,
defendants moved to dismiss plaintiff’s complaint pursuant to section 2-619 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)), arguing plaintiff’s negligence
claims were barred by the Snow and Ice Removal Act (Act) (745 ILCS 75/1 et seq. (West
2010)). The trial court dismissed plaintiff’s complaint but allowed plaintiff to amend to
allege willful and wanton misconduct, an exception to the immunities otherwise provided
by the Act. Defendants moved to dismiss plaintiff’s first amended complaint pursuant to
section 2-615 of the Code (735 ILCS 5/2-619 (West 2010)), which the court granted. In
addition, the court allowed plaintiff to further amend her complaint to allege willful and
wanton misconduct. Defendants moved to dismiss plaintiff’s second amended complaint
pursuant to section 2-615 of the Code, which the court granted.
¶2 Plaintiff appeals, arguing the trial court erred in (1) determining that the Act barred her
negligence claims against defendants, (2) dismissing her second amended complaint because
she properly pled a willful and wanton exception to the immunity otherwise provided by the
Act (745 ILCS 75/2 (West 2010)), and (3) denying her request for additional time to locate
individuals to aid in providing factual support for her claims. We affirm in part, reverse in
part, and remand for further proceedings.
¶3 I. BACKGROUND
¶4 On January 23, 2012, plaintiff filed a complaint in negligence alleging that she slipped
-2-
and fell near the entrance of a residence she leased from defendants due to the icy condition
of defendants’ walkway. Plaintiff alleged several theories of negligence concerning the
walkway, including that defendants negligently failed to (1) provide a safe walkway in
violation of the Premises Liability Act (740 ILCS 130/1 to 5 (West 2010)); (2) maintain and
provide a properly pitched overhang roof; (3) provide properly hung and sized gutters; (4)
provide properly hung and sized downspouts; (5) provide an adequate number of
downspouts; (6) allow proper drainage to occur from the overhang roof onto the walkway;
(7) correct or repair the gutters, downspouts, and overhang; (8) keep the gutters and
downspouts “free and clear at all times of stored materials”; (9) keep the gutters and
downspouts “free and clear at all times of ice”; and (10) keep the gutters and downspouts
“free and clear at all times of mud and refuse.” As a proximate result, plaintiff alleged,
defendants’ negligence resulted in an unnatural accumulation of water on a walkway which
froze and caused plaintiff to slip and fall, suffering “serious and permanent injuries to her
shoulder.”
¶5 On March 2, 2012, defendants filed a motion to dismiss under section 2-619(a)(9) of the
Code, arguing defendants were immune from liability under the Snow and Ice Removal Act.
Defendants attached to their motion a contract, in effect at the time of plaintiff’s fall, with
Jason Oakes for snow and ice removal at multiple locations, including the residence plaintiff
leased from defendants. Following a hearing, the trial court granted defendants’ motion and
dismissed plaintiff’s complaint, finding the negligence claim was barred by the Act. Plaintiff
sought leave to file an amended complaint to allege willful and wanton misconduct, an
exception to the immunities otherwise provided by the Act. The court granted plaintiff’s
motion.
¶6 On May 22, 2012, plaintiff filed her first amended complaint alleging defendants engaged
in willful and wanton misconduct. Plaintiff’s willful and wanton claim reiterated the
negligence claim allegations, adding that defendants acted with “utter indifference to or
conscious disregard” and “with a reckless disregard for the safety” of plaintiff. Defendants
moved to dismiss plaintiff’s first amended complaint pursuant to section 2-615 of the Code
(735 ILCS 5/2-615 (West 2010)), arguing plaintiff’s allegations that defendants failed to
perform routine maintenance of gutters and downspouts did not constitute willful and wanton
misconduct. Following a hearing, the trial court granted defendants’ motion and dismissed
the first amended complaint. The court allowed plaintiff’s motion to further amend her
complaint to allege willful and wanton misconduct.
¶7 On August 30, 2012, plaintiff filed her second amended complaint. This time, plaintiff
reasserted her original negligence claims in counts I, III, V, and VII, and reiterated her willful
and wanton allegations in counts II, IV, VI, and VIII. Defendants moved to dismiss plaintiff’s
second amended complaint pursuant to section 2-615 of the Code, arguing (1) the trial court
had already found plaintiff’s negligence claims barred by the Act and (2) plaintiff’s
allegations of willful and wanton misconduct were still not sufficient to state a cause of
action. Plaintiff stated that she incorporated her “prior arguments made before the court.”
The court granted defendants’ motion and dismissed the second amended complaint with
prejudice.
¶8 This appeal followed.
-3-
¶9 II. ANALYSIS
¶ 10 On appeal, plaintiff argues the trial court erred in determining that the Act barred her
negligence claims against defendants. Specifically, plaintiff argues the Act does not apply
where the unnatural accumulation of ice was caused by defective construction or improper
or insufficient maintenance of the premises, and not by snow and ice removal efforts.
¶ 11 After plaintiff filed her initial complaint alleging negligence, defendants filed a motion
to dismiss under section 2-619(a)(9) of the Code, arguing that plaintiff’s complaint was
barred by the Act. Section 2-619 allows for the involuntary dismissal of a cause of action
based on certain defects and defenses, including on the ground “the claim asserted against
defendant is barred by other affirmative matter avoiding the legal effect of or defeating the
claim.” 735 ILCS 5/2-619(a)(9) (West 2010). The dismissal of a complaint pursuant to
section 2-619(a)(9) is reviewed de novo. Lacey v. Village of Palatine, 232 Ill. 2d 349, 359,
904 N.E.2d 18, 24 (2009).
¶ 12 The Snow and Ice Removal Act contains two relevant parts, which state:
Ҥ 1. It is declared to be the public policy of this State that owners and others residing
in residential units be encouraged to clean the sidewalks abutting their residences of
snow and ice. The General Assembly, therefore, determines that it is undesirable for any
person to be found liable for damages due to his or her efforts in the removal of snow or
ice from such sidewalks, except for acts which amount to clear wrongdoing, as described
in Section 2 of this Act.
§ 2. Any owner, lessor, occupant or other person in charge of any residential property,
or any agent of or other person engaged by any such party, who removes or attempts to
remove snow or ice from sidewalks abutting the property shall not be liable for any
personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting
from his or her acts or omissions unless the alleged misconduct was willful or wanton.”
745 ILCS 75/1, 2 (West 2010).
¶ 13 The Illinois legislature enacted the Snow and Ice Removal Act to provide immunities and
defenses to “owners and others residing in residential units.” 745 ILCS 75/1 (West 2010).
By shielding residential owners from negligence claims under the Act, the Illinois legislature
sought to encourage the cleaning of snow and ice from sidewalks abutting residences. 745
ILCS 75/1 (West 2010). In interpreting a provision of the Act, as with any statute, our
primary goal is to ascertain and give effect to the intention of the legislature. Ries v. City of
Chicago, 242 Ill. 2d 205, 215-16, 950 N.E.2d 631, 637 (2011). We seek that intent first from
the plain language used in the statute, and if that language is clear and unambiguous, we are
not at liberty to depart from its plain meaning. Ries, 242 Ill. 2d at 216, 950 N.E.2d at 637.
We review de novo the interpretation of a statute as a question of law. Abruzzo v. City of
Park Ridge, 231 Ill. 2d 324, 332, 898 N.E.2d 631, 636 (2008).
¶ 14 Under the common law, a landowner has no duty to remove natural accumulations of
snow or ice (Claimsone v. Professional Property Management, LLC, 2011 IL App (2d)
101115, ¶ 18, 956 N.E.2d 1065), but exceptions have been made where some other act of
negligence contributes to the condition.
-4-
“One is generally not liable for injuries caused by natural accumulations of ice or
snow, and there is no [common law] duty to remove natural accumulations of ice or
snow. [Citation.] However, a [common law] duty may arise on the part of the
defendant-premises owner, if the defendant voluntarily undertook the task of removing
natural accumulations of ice or snow and did so negligently or if the defendant was
responsible for an unnatural accumulation of ice or snow. Liability will be imposed on
a defendant where the plaintiff shows an injury that was caused by such an unnatural
accumulation of ice or snow. [Citation.]” Ordman v. Dacon Management Corp., 261 Ill.
App. 3d 275, 279, 633 N.E.2d 1307, 1310 (1994).
¶ 15 Further, an exception to the common law “no duty” rule is made where “the
accumulation of ice or snow becomes unnatural due to the design and construction of the
premises.” McLean v. Rockford Country Club, 352 Ill. App. 3d 229, 233-34, 816 N.E.2d 403,
408 (2004).
“The construction and maintenance of a landowner’s property are matters within the
landowner’s control. [Citation.] Therefore, Illinois courts have noted that ‘[i]t is not
imposing an undue burden on [the landowner] to require him not to add to the difficulties
facing Illinois residents from natural accumulations of ice and snow by permitting
unnatural accumulations due to defective construction or improper or insufficient
maintenance of the premises.’ ” McLean, 352 Ill. App. 3d at 234, 816 N.E.2d at 408
(quoting Bloom v. Bistro Restaurant Ltd. Partnership, 304 Ill. App. 3d 707, 711, 710
N.E.2d 121, 123 (1999)).
¶ 16 The Snow and Ice Removal Act was enacted in derogation of the common law. See
Gallagher v. Union Square Condominium Homeowner’s Ass’n, 397 Ill. App. 3d 1037, 1043,
922 N.E.2d 1201, 1207 (2010) (“The Act is in derogation of this common law in that it
provides immunity for injuries sustained by a person as a result of the attempted clearing of
sidewalks abutting the property.”). “[A] court cannot construe a statute in derogation of the
common law beyond what the words of the statute expresses [sic] or beyond what is
necessarily implied from what is expressed.” Adams v. Northern Illinois Gas Co., 211 Ill. 2d
32, 69, 809 N.E.2d 1248, 1271 (2004). “Any legislative intent to abrogate the common law
must be clearly and plainly expressed, and we will not presume from ambiguous language
an intent to abrogate the common law.” Heider v. Knautz, 396 Ill. App. 3d 553, 561, 919
N.E.2d 1058, 1065 (2009). The repeal or preemption of a common law remedy by
implication is not favored. Callahan v. Edgewater Care & Rehabilitation Center, Inc., 374
Ill. App. 3d 630, 634, 872 N.E.2d 551, 553 (2007). An act in derogation of the common law
must be construed strictly against the entity claiming immunity. Van Meter v. Darien Park
District, 207 Ill. 2d 359, 368, 799 N.E.2d 273, 279 (2003).
¶ 17 Here, the Act provides owners, lessors, occupants, or other persons in charge of
residential property immunity for injuries caused by snow and ice removal efforts, unless
their acts or omissions constitute willful and wanton misconduct. 745 ILCS 75/2 (West
2010). The legislature intended for such persons to be immune from liability where they
negligently remove or attempt to remove snow or ice from a residential walkway. This
represents a clear conflict with common law negligence claims, where liability may be
imposed on an owner for injuries caused by an owner’s voluntary and negligent removal of
-5-
ice or snow, causing an unnatural accumulation. We presume the legislature was familiar
with the aforementioned common law cause of action. See People v. Hickman, 163 Ill. 2d
250, 262, 644 N.E.2d 1147, 1153 (1994) (“it must be presumed that the legislature acted with
knowledge of the prevailing case law”). It is apparent then the Act was intended to modify
common law liability for owners and others residing in residential units who negligently
remove or attempt to remove snow or ice from sidewalks abutting their property. 745 ILCS
75/2 (West 2010).
¶ 18 Here, plaintiff alleges her injuries were not the result of any efforts to remove snow or
ice from a walkway, but instead resulted from an icy condition caused by the defective
condition of the building adjacent to the walkway. Therefore, the Act does not apply to bar
her negligence claim. The plain language of the Act indicates it does not apply to negligence
actions for injuries caused by defective construction or improper or insufficient maintenance
of the premises. Instead, the Act applies only to immunize an owner’s negligent efforts to
remove snow and ice from residential sidewalks.
¶ 19 Were we to hold that the Act also applied where an unnatural accumulation of ice was
caused by defective construction or improper or insufficient maintenance of the premises,
we would be repealing a common law remedy by implication, which is not favored. See
Callahan, 374 Ill. App. 3d at 634, 872 N.E.2d at 553. Accordingly, we conclude that the
plain language of the Act does not provide immunity for injuries if the unnatural
accumulation of ice was caused by defective construction or improper or insufficient
maintenance of the premises, and not snow and ice removal efforts.
¶ 20 Defendants cite Pikovsky v. 8440-8460 North Skokie Boulevard Condominium Ass’n,
2011 IL App (1st) 103742, 964 N.E.2d 124, and Gallagher in support of their argument that
the Act applies. However, these cases are clearly distinguishable. The plaintiffs in Pikovsky
and Gallagher alleged they fell on unnatural accumulations caused by snow removal efforts,
and not unnatural accumulations caused by defective construction or improper or insufficient
maintenance of the premises.
¶ 21 In Pikovsky, the defendants entered into contracts for snow removal that included a
parking lot and sidewalk, but did not include a rear entrance sidewalk. Pikovsky, 2011 IL
App (1st) 103742, ¶ 3, 964 N.E.2d 124. The plaintiff fell due to icy snow mounds formed by
snow that was plowed from the parking lot onto the rear entrance sidewalk. Pikovsky, 2011
IL App (1st) 103742, ¶ 4, 964 N.E.2d 124. The plaintiff filed a negligence complaint alleging
the defendants failed to exercise reasonable care by creating an unsafe and dangerous
condition of unnatural accumulation of snow and ice on the rear entrance sidewalk. Pikovsky,
2011 IL App (1st) 103742, ¶ 5, 964 N.E.2d 124. The appellate court found the Act barred the
plaintiff’s negligence claim where the contracting for snow and ice removal constituted “a
conscious effort to clear snow and ice,” and the defendants’ failure to remove the snow and
ice mounds from the rear entrance sidewalk was an omission in their overall snow removal
efforts. Pikovsky, 2011 IL App (1st) 103742, ¶ 13, 964 N.E.2d 124. We note that Pikovsky
is factually dissimilar to the present case as the unnatural accumulation of snow and ice in
Pikovsky was allegedly due to the defendants’ snow removal efforts. Such allegations of
snow removal efforts are notably absent here. Further, to the extent Pikovsky holds that an
owner’s contracting for snow and ice removal equates to snow and ice removal efforts under
-6-
the Act, we decline to adopt this holding. Pikovsky, 2011 IL App (1st) 103742, ¶ 13, 964
N.E.2d 124. We conclude the plain language of the statute so constrains us.
¶ 22 In Gallagher, the defendants plowed snow from the plaintiff’s driveway causing
unnatural accumulations of snow and ice. Gallagher, 397 Ill. App. 3d at 1039, 922 N.E.2d
at 1204. The plaintiff fell while walking on the plowed path on his driveway, sustaining
serious injuries. Gallagher, 397 Ill. App. 3d at 1039, 922 N.E.2d at 1204. The plaintiff
alleged that the defendants were negligent in creating an unnatural accumulation of snow and
ice on the plaintiff’s driveway. Gallagher, 397 Ill. App. 3d at 1039, 922 N.E.2d at 1204.
However, the appellate court found the plain language of the Act did not provide immunity
for injuries sustained on a driveway; it only applied to snow removal efforts on sidewalks.
Gallagher, 397 Ill. App. 3d at 1047, 922 N.E.2d at 1210.
¶ 23 In sum, we conclude that the plain language of the Act does not provide immunity for
injuries if the unnatural accumulation of ice was caused by defective construction or
improper or insufficient maintenance of the premises, and not by snow and ice removal
efforts. Accordingly, the trial court erred when it dismissed plaintiff’s second amended
complaint on the basis that her negligence allegations were barred by the Act.
¶ 24 Plaintiff next argues the trial court erred by dismissing counts II, IV, VI, and VIII of her
second amended complaint alleging willful and wanton misconduct. To plead willful and
wanton misconduct, a plaintiff must allege duty, breach of duty, proximate cause, and “either
a deliberate intention to harm or a conscious disregard for the plaintiff’s welfare.” Doe-3 v.
McLean County Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 19, 973 N.E.2d
880. Here, the trial court granted defendants’ motion to dismiss after finding plaintiff’s
second amended complaint failed to sufficiently allege defendants’ conduct was willful and
wanton. We agree. The factual allegations made by plaintiff do not demonstrate “either a
deliberate intention to harm or a conscious disregard for the plaintiff’s welfare” as outlined
by our supreme court. Doe-3, 2012 IL 112479, ¶ 19, 973 N.E.2d 880. Thus, the trial court
did not err by dismissing counts II, IV, VI, and VIII of plaintiff’s second amended complaint.
¶ 25 Plaintiff next argues the trial court erred by denying her request for additional time to
locate individuals to aid in providing factual support for her claims. “A trial court is given
great latitude in determining the scope of discovery, and discovery orders will not be
disturbed absent an abuse of discretion.” Manns v. Briell, 349 Ill. App. 3d 358, 361, 811
N.E.2d 349, 352 (2004). Plaintiff filed her initial complaint in this case on January 23, 2012,
and the trial court dismissed her second amended complaint on December 21, 2012. The trial
court provided claimant approximately 11 months to locate individuals for purposes of this
case and, thus, did not abuse its discretion by denying her request for additional time.
¶ 26 We express no opinion regarding the factual sufficiency of the negligence counts (counts
I, III, V, and VII) of plaintiff’s second amended complaint. Although the trial court dismissed
the negligence counts in plaintiff’s second amended complaint based on defendants’ section
2-615 motion to dismiss, the dismissal was actually pursuant to section 2-619. The case is
ordered remanded to the trial court with directions that counts I, III, V, and VII of plaintiff’s
second amended complaint be reinstated and that defendants answer or otherwise plead to
these counts.
-7-
¶ 27 III. CONCLUSION
¶ 28 For the foregoing reasons, we affirm the trial court’s (1) dismissal of plaintiff’s willful
and wanton claims and (2) denial of plaintiff’s request for additional time for discovery.
However, we reverse the trial court’s dismissal of plaintiff’s negligence claims based on the
Snow and Ice Removal Act, and we remand with directions.
¶ 29 Affirmed in part and reversed in part; cause remanded with directions.
-8-