Ehardt v. Algonquin Gasoline, Inc. ( 2020 )

2020 IL App (2d) 190491-UNo. 2-19-0491
Order filed May 7, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
JULIE EHARDT, ) Appeal from the Circuit Court
) of Kane County.
Plaintiff-Appellant, )
)
v. ) No. 15-L-598
)
ALGONQUIN GASOLINE, INC., ) Honorable
) Mark A. Pheanis,
Defendant-Appellee ) Judge, Presiding.
______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court.
Presiding Justice Birkett and Justice Hutchinson concurred in the judgment.
ORDER
¶1 Held: Defendant is entitled to summary judgment because the negligence claim merely
alleges that defendant’s ice removal was incomplete, and nothing suggested that
the incomplete ice removal made the condition worse.
¶2 Plaintiff, Julie Ehardt, filed a negligence complaint against defendant, Algonquin Gasoline,
Inc., after she fell and injured herself on defendant’s property. She claimed that defendant
breached its duty to provide patrons safe ingress to and egress from its business. Defendant moved
for summary judgment, arguing that plaintiff failed to allege any facts indicating that the ice on
which she fell was caused by anything other than a natural accumulation. The trial court granted
the motion and denied plaintiff’s motion to reconsider. Plaintiff timely appeals. We affirm.
2020 IL App (2d) 190491-U¶3 I. BACKGROUND 1
¶4 At 7 a.m. on December 28, 2013, plaintiff was on her way to work when she stopped at
defendant’s station to get gas. It was twilight, cloudy, and about 20 degrees. It was neither
snowing nor raining, and the roads were dry.
¶5 Plaintiff parked by a gas pump, got out of her car, and began walking toward the gas station
building to prepay for her gas. When she was about nine to ten steps away from the back of her
car and still under the canopy over the gas pumps, she slipped and fell, injuring her right knee.
Plaintiff stated that she was looking straight ahead as she was walking, and she did not see the
legal-pad sized ice patch before she fell. Plaintiff did not know how thick the ice was, how the ice
formed, or how long the ice had been there. She indicated that the ice was on top of cement that
had a few penny-sized nicks in it.
¶6 Plaintiff spoke to the manager, Dave Huxtable, after she fell, and he told her that the salt
does not work before the sun rises. Plaintiff indicated that Huxtable implied that the area where
she fell had been salted.
¶7 Vaidya, who was not at the station when plaintiff fell, indicated that defendant contracted
with a landscaper to plow and salt defendant’s premises. In addition, defendant’s employees
inspected the premises every few hours and salted all the ice in areas where there was heavy foot
traffic. This included the areas by the gas pumps and in front of the gas station building.
1
The record on appeal consists of only a common-law record. That record contains the
various motions the parties filed and the deposition transcripts of plaintiff and Lavish Vaidya, who
is one of defendant’s employees.
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2020 IL App (2d) 190491-U¶8 Based on these facts, defendant moved for summary judgment (735 ILCS 5/2-1005(c)
(West 2018)), arguing that plaintiff failed to allege any facts indicating that the ice on which she
fell was caused by a natural accumulation that defendant aggravated or an unnatural accumulation
that defendant created. Plaintiff responded that defendant negligently salted the area where
plaintiff fell. Plaintiff also claimed that defendant should have spread something other than salt
that would have melted the ice when the sun was not out and that the signs defendant posted about
the slippery conditions of the concrete should have been more conspicuous. Attached to her
response was her affidavit, wherein she attested that she could see there was little salt on the paved
area and little to no salt where she fell. 2
¶9 Without elaborating, the trial court granted the motion for summary judgment, and plaintiff
moved the trial court to reconsider, arguing that the court misapplied the law. The trial court
denied the motion, noting that there was no evidence that the ice patch was anything other than a
natural accumulation. The trial court found that summary judgment was properly granted, because
an abundance of caselaw in Illinois clearly establishes that a defendant cannot be liable for injuries
resulting from falling on a natural accumulation of ice.
¶ 10 II. ANALYSIS
¶ 11 At issue in this appeal is whether defendant’s motion for summary judgment should have
been granted. Summary judgment is appropriate where “the pleadings, depositions, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. A
triable issue precluding summary judgment exists where material facts are disputed or where the
2
Defendant moved to strike plaintiff’s affidavit. The trial court never ruled on that motion.
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2020 IL App (2d) 190491-Umaterial facts are undisputed but reasonable people might draw different inferences from the
undisputed facts. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 43 (2004). We review
de novo the entry of summary judgment. Outboard Marine Corp. v. Liberty Mutual Insurance
Co., 154 Ill. 2d 90, 102 (1992).
¶ 12 As indicted, plaintiff sued defendant for negligence. To prevail in a negligence case, the
plaintiff must prove that the defendant owed her a duty, the defendant breached that duty, and the
plaintiff’s injury proximately resulted from that breach. Tzakis v. Dominick’s Finer Foods, Inc.,
356 Ill. App. 3d 740, 745-46 (2005). At issue here is whether defendant owed plaintiff a duty.
¶ 13 A property owner has no duty to remove naturally accumulated snow or ice. Mickens v.
CPS Chicago Parking, LLC, 2019 IL App (1st) 180156, ¶ 27. This rule applies when either the
property owner makes no attempt to remove naturally accumulated snow or ice or makes some
attempt but does not remove all the snow or ice, regardless of how dangerous the natural
accumulation may be. Id. ¶ 28.
¶ 14 In contrast, a property owner is liable for injury resulting from unnaturally accumulated
snow or ice if the property owner has actual or constructive knowledge of the dangerous condition
created. Id. ¶ 29. Snow or ice accumulates unnaturally when it collects artificially or when the
property owner creates the condition that causes the snow or ice to amass in the way that it does.
Id. Examples of unnaturally accumulated snow and ice include piles of snow created through
snow-removal efforts and the ice that forms when those snow piles melt and the melted snow
refreezes. Id. ¶ 30.
¶ 15 In light of the above, we conclude that plaintiff failed to put forth any facts establishing
that defendant caused the ice to form in the area where she fell. Indeed, plaintiff admitted that she
had no idea how the ice formed where it did, and she offered no evidence on the subject.
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2020 IL App (2d) 190491-UNevertheless, plaintiff speculates that defendant is liable for her injuries because it voluntarily
undertook to remove ice from its premises, including from the place where she fell. Plaintiff claims
that defendant negligently failed to spread salt at all, failed to spread enough salt, or failed to spread
a substance that is more effective in removing ice. These alleged omissions do not give rise to any
liability on defendant’s part.
¶ 16 First, as noted above, defendant cannot be liable for failing to remove a natural
accumulation of ice. See id. ¶ 28. Thus, assuming that defendant failed to salt the area where
plaintiff fell, defendant cannot be liable for her injuries in the absence of some evidence that the
ice accumulated unnaturally. Id. ¶ 29. As we have already concluded, nothing indicates that the
ice here accumulated unnaturally.
¶ 17 Second, defendant cannot be liable for failing to spread enough salt over a natural
accumulation. Instructive on this point is Timmons v. Turski, 103 Ill. App. 3d 36 (1981), where
the property owner, a dentist, shoveled and salted the walkway into his business one snowy
morning. Id. at 36-37. After doing so, the plaintiff, who had an appointment with the defendant
that morning, slipped and fell on the walkway, fracturing his left leg. Id. at 36. A jury found in
favor of the plaintiff, and the appellate court reversed. Id. at 39. The appellate court noted that
the voluntary undertaking to remove snow and ice may subject a property owner to liability if the
removal was performed negligently, but the “mere removal of snow, which may leave a natural
ice formation remaining on the premises does not of itself constitute negligence.” Id. at 38. Thus,
while the defendant voluntarily undertook to remove snow and ice and salt the walkway, he was
not liable to the plaintiff, as no evidence indicated that the remaining ice on which the plaintiff
slipped was anything other than a natural ice formation. Id. at 39.
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2020 IL App (2d) 190491-U¶ 18 Although Timmons is procedurally different from this case, it clearly establishes that a
property owner cannot be liable for injuries caused from falling on ice that accumulated naturally.
As in Timmons, defendant spread salt on its premises. Plaintiff, like the plaintiff in Timmons,
injured herself after falling in an area that defendant presumably treated. Like in Timmons, nothing
indicated that the ice on which plaintiff fell was anything other than a natural accumulation.
Because the defendant in Timmons could not be liable for injuries the plaintiff sustained after
falling on a treated natural accumulation, plaintiff here cannot establish that defendant owed her a
duty when she fell on ice, whether that ice was treated or not.
¶ 19 In reaching our conclusion, we need not address plaintiff’s claim that defendant owed and
breached a duty to post more conspicuous warning signs. We find the argument irrelevant here,
as there was no genuine issue of whether defendant’s ice removal was negligent.
¶ 20 III. CONCLUSION
¶ 21 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 22 Affirmed.
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