Asmus v. Mac's Convenience Stores, LLC

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 3, 2011
Decided August 25, 2011
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 11-1584
TINA ASMUS, et al., Appeal from the United States District
Plaintiffs-Appellants, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 1:09-cv-02571
MAC’S CONVENIENCE STORES, LLC,
et al., John W. Darrah,
Defendants-Appellees. Judge.
ORDER
In this diversity tort case, Tina and Kevin Asmus appeal from the grant of summary
judgment in favor of the owners of a convenience store and a snow-removal company they
sued after Mrs. Asmus slipped and fell in the parking lot of the convenience store. For the
following reasons, we affirm.
On Christmas Day 2008, Mrs. Asmus, her husband, and their three children were
driving from Pennsylvania to Iowa; they stopped and visited a Circle K convenience store in
No. 11-1584 Page 2
Mokena, Illinois. On the way back to her car, Mrs. Asmus slipped and broke her leg. She
later testified at a deposition that she never saw any snow or ice in the area where she fell —
there had not been any snowfall that day — and she believes that she slipped on “black” ice.
Mr. Asmus testified that he had noticed water and slush in the parking lot and saw a trail of
water that ran from the sidewalk to the parking lot where his wife fell. Shortly after the
incident, a cashier took photographs of the area where Mrs. Asmus fell. The photos show slick,
wet, snowy and icy conditions near the site of the fall and small piles of snow on the sidewalk
in front of the store.
Mr. and Mrs. Asmus sued the property owner, Equilon LLC, and the store owner,
Mac’s Convenience Stores, LLC, in the Circuit Court of Cook County for causing her injuries
by either negligently removing or failing to remove accumulations of snow in the parking lot;
Mr. Asmus alleged damages due to loss of companionship. In an amended complaint, the
Asmuses added Mac’s snow-removal company, Stay Green, Inc., as an additional defendant.
Under the terms of its contract, Stay Green was required to plow the lot whenever there was
more than 2 inches of snow and was required to shovel the sidewalk and salt the lot if there
was a freezing accumulation. Although there had been less than 2 inches of snow, Stay Green
plowed the Circle K lot on the day before Mrs. Asmus fell.
On the basis of diversity jurisdiction, the case was removed to federal court in the
Northern District of Illinois. The defendants moved for summary judgment, and the district
court granted the motion on the ground that under Illinois law the defendants were not
responsible for removing natural accumulations of ice, and there was no evidence that the
accumulation of ice in the parking lot was “unnatural.”
On appeal the Asmuses first argue that there was sufficient evidence for a jury to
reasonably conclude that Mrs. Asmus’s injuries were the result of an unnatural condition —
namely wet, “black” ice, which was created when snow from the sidewalk in front of the store
melted and ran into the parking lot. But the snow and ice on the sidewalk and parking lot was
a natural accumulation and the defendants thus cannot be liable for failing to remove it under
the “natural accumulation rule,” which provides that landowners and property holders have
no duty to remove natural accumulations of ice, snow or water from their property. See Krywin
v. Chicago Transit Authority, 938 N.E.2d 440, 447 (Ill. July 15, 2010); Tzakis v. Dominick’s Finer
Foods, Inc., 826 N.E.2d 1285, 1289 (Ill. App. Ct. March 24, 2005). The Asmuses argue that Mac’s
is nonetheless liable because the slope of its parking lot caused the ice to form an unsafe
condition, but summary judgment was appropriate on that theory because there was no
evidence that the slope itself was dangerous, the slope proximately caused the injury, or that
Mac’s knew of the defect. See Selby v. Danville Pepsi-Cola Bottling Co., Inc., 523 N.E.2d 697, 701
No. 11-1584 Page 3
(Ill. App. Ct. May 12, 1988); McCann v. Bethesda Hospital, 400 N.E.2d 16, 20 (Ill. App. Ct. Dec. 28,
1979).
Next the Asmuses argue that the district court should not have granted summary
judgment because the defendants had assumed a duty to remove all accumulations of snow
and ice from the parking lot based on a Circle K guideline directing employees to remove snow
from parking areas, and the snow-plowing contract between Mac’s and Stay Green. The
Asmuses argue that the district court erred when it distinguished their claim from cases
holding that a property owner had assumed a duty to remove all snow based on an easement
agreement, see Eichler v. Plitt Theaters, Inc., 521 N.E.2d 1196, 1201 (Ill. App. Ct. March 28, 1988),
or a contractual promise by a landlord to a tenant, Tressler v. Windfield Village Co-op, 481 N.E.2d
75, 77 (Ill. App. Ct. July 17, 1985); see also Schoondyke v. Heil, Heil, Smart & Golee, Inc., 411 N.E.2d
1168, 1172 (Ill. App. Ct. Oct. 14, 1980), because here the defendants had also entered into
commitments to clear away snow for the benefit of third parties. But general policies in an
employee handbook are not contractual promises, see Vickers v. Abbott Labs, 719 N.E.2d 1101,
1113 (Ill. App. Ct. Sept. 30, 1999), and Circle K’s internal guidelines do not commit the company
to a higher duty of care. See Rhodes v. Illinois Central Railroad Co., 665 N.E.2d 1260, 1272 (Ill.
March 28, 1996); Blankenship v. Peoria Park District, 647 N.E.2d 287, 291 (Ill. App. Ct. Sept. 23,
1994). Furthermore, Stay Green’s contract did not commit the company to do more than
remove snow in a reasonable, nonnegligent fashion, see Crane v. Triangle Plaza, Inc., 591 N.E.2d
936, 939-940 (Ill. App. Ct. 1992), and there is no evidence that it did otherwise.
AFFIRMED.