No. 2--09--0271 Filed: 1-27-10 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
KEVIN F. GALLAGHER, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellant, ) ) v. ) No. 08--L--873 ) THE UNION SQUARE CONDOMINIUM ) HOMEOWNER'S ASSOCIATION, ) VANGUARD COMMUNITY ) MANAGEMENT, INC., Indiv. and as an ) Agent of Union, and LANDSCAPES ) CONCEPT MANAGEMENT, INC., ) Honorable ) Christopher C. Starck, Defendants-Appellees. ) Judge, Presiding. ________________________________________________________________________________
PRESIDING JUSTICE ZENOFF delivered the opinion of the court:
On February 17, 2009, the circuit court of Lake County dismissed the complaint filed by
plaintiff, Kevin F. Gallagher, against defendants, Union Square Condominium Homeowner's
Association (Union), Vanguard Community Management, Inc. (Vanguard), and Landscapes Concept
Management, Inc. (Landscapes), on Landscapes' motion under section 2--619(a)(9) of the Code of
Civil Procedure (Code) (735 ILCS 5/2--619(a)(9) (West 2008)). Plaintiff appeals, arguing that the
trial court erred in determining that the Snow and Ice Removal Act (Act) (745 ILCS 75/1 et seq.
(West 2008)) barred plaintiff's claims against defendants. For the reasons that follow, we reverse
and remand the matter to the trial court for further proceedings.
BACKGROUND No. 2--09--0271
On October 22, 2008, plaintiff filed a two-count complaint against defendants. With respect
to both counts, plaintiff made the following allegations. As of February 6, 2008, Union was the
owner of the common elements and areas of the condominium development in which plaintiff owned
a unit and resided. Under the declaration of condominium ownership, Union was responsible for
the administration and maintenance of the common areas of the development. Union retained
Vanguard to serve as Union's agent in the administration and management of the development,
including the common areas. Thereafter, on August 18, 2007, Vanguard, as the agent for Union,
entered into a contract with Landscapes under which Landscapes was to provide snow removal
services for the development. Included in the common areas of the development for which Union
and Vanguard were responsible was a driveway leading to plaintiff's garage. This driveway was also
covered by the snow removal contract between Vanguard and Landscapes.
On February 6, 2008, significant snowfalls occurred, resulting in the accumulation of snow
on plaintiff's driveway. In response to the snowfall, Landscapes plowed a single, narrow path up the
middle of plaintiff's driveway, causing the unnatural formation of a snow mound in front of
plaintiff's garage door, which impeded plaintiff's access to the garage by foot or car. In addition,
Landscapes' plowing caused the unnatural formation of snow mounds on each side of the plowed
path, which impeded access to any other pedestrian route between the street and the garage and
which necessitated use of the plowed path to travel between the street and the garage. Finally,
Landscapes' plowing created the unnatural formation of a sheer packed ice surface, which was
covered and obscured by fresh snow. Defendants did not salt or sand the path, nor was any warning
posted regarding the conditions of the driveway. Defendants knew or should have known of the
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existence of the unreasonably dangerous condition and the risk it presented to people on the premises.
Upon arrival at his home the afternoon of February 6, 2008, plaintiff discovered that the
manner in which Landscapes had plowed his driveway made access to his garage by car impossible.
Accordingly, plaintiff parked his car on the street and walked toward his garage to ascertain what
would be required in order to get his car into his garage. While walking on the plowed path on the
driveway, plaintiff slipped and fell, sustaining severe right distal tibia and fibula fractures.
In count I, plaintiff alleged that Union and Vanguard were negligent in (1) failing to inspect
the common areas of the development, including plaintiff's driveway, to make certain that they were
free from the unnatural accumulation of snow and ice; (2) allowing the unnatural accumulation of
snow and ice on plaintiff's driveway; (3) failing to spread salt or sand over the unnatural
accumulation of snow and ice on plaintiff's driveway; (4) failing to direct or control Landscapes with
respect to the foregoing; (5) failing to post, erect, or otherwise provide warnings of the risk presented
by the unnatural accumulation of snow and ice; and (6) failing to provide a safe pedestrian route
between the street and plaintiff's garage. In count II, plaintiff alleged that Landscapes was negligent
in (1) failing to inspect the common areas of the development, including plaintiff's driveway, to
make sure they were free from the unnatural accumulation of snow and ice; (2) allowing the
unnatural accumulation of snow and ice on plaintiff's driveway; (3) failing to spread salt or sand over
the unnatural accumulation of snow and ice; (4) failing to post, erect, or otherwise provide warnings
of the risk presented by the unnatural accumulation of snow and ice; (5) failing to provide a safe
pedestrian route between the street and plaintiff's garage; (6) creating an unnatural accumulation of
snow mounds impeding plaintiff's access to his garage; (7) creating an unnatural accumulation of
a slippery, ice-packed pedestrian surface; and (8) impeding and limiting plaintiff's access to any
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pedestrian route between the street and plaintiff's garage other than the narrow, slippery, ice-packed
path created by Landscapes' plowing.
On January 2, 2009, Landscapes filed a motion to dismiss plaintiff's complaint under section
2--619(a)(9) of the Code. In its motion to dismiss, Landscapes argued that plaintiff's complaint was
barred by the Act.
Following a hearing on February 17, 2009, the trial court granted the motion to dismiss and
dismissed plaintiff's complaint in its entirety, stating that its order disposed of "all claims and all
parties." According to the trial court's order, all of the other defendants had joined in Landscapes'
motion to dismiss the complaint. Although no transcript of the February 17, 2009, hearing is
included in the record on appeal, none of the parties disputes that the trial court dismissed plaintiff's
entire complaint under the Act.
Plaintiff then filed this timely appeal.
ANALYSIS
On appeal, plaintiff contends that the trial court erred in dismissing his entire complaint,
because (1) the Act does not apply where a plaintiff falls on a driveway, and (2) his complaint
contained premises liability claims against Union and Vanguard that should not have been dismissed,
even if the Act applies where a plaintiff falls on a driveway. We address each of these contentions
in turn.
"A motion to dismiss pursuant to section 2--619 admits the legal sufficiency of a complaint,
but asserts affirmative matters that avoid or defeat the allegations contained in the complaint."
Corcoran-Hakala v. Dowd, 362 Ill. App. 3d 523, 525 (2005). The truth of all well-pleaded
allegations in the complaint is conceded under a section 2--619 motion to dismiss. Abruzzo v. City
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of Park Ridge, 231 Ill. 2d 324, 331 (2008); Provenzale v. Forister, 318 Ill. App. 3d 869, 879 (2001).
In addition, we must interpret the pleadings and supporting materials in the light most favorable to
the nonmoving party. Abruzzo, 231 Ill. 2d at 332. Our review of the trial court's decision is de
novo. Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 411 (2002).
Plaintiff first argues that the Act does not bar his claims. Section 2 of the Act provides:
"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 75/2
(West 2008).
This immunity from liability is intended to further the public policy and purpose of the Act as stated
in section 1 of the Act:
"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." 745 ILCS 75/1 (West 2008).
Plaintiff contends that the Act does not apply to his claims, because the Act immunizes defendants
against only those injuries sustained on sidewalks and not those sustained on driveways. Defendants
contend that, because plaintiff was walking on the driveway at the time he fell and because the
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driveway was the primary means of ingress and egress to and from plaintiff's unit, the driveway was
sufficiently akin to a sidewalk to come within the scope of the Act. Accordingly, the question before
us is whether the use of the word "sidewalk" in section 2 of the Act includes driveways. We
conclude that it does not.
In construing a statute, our primary function is to give effect to the legislature's intent.
Abruzzo, 231 Ill. 2d at 332. The best indicator of the legislature's intent is the plain and ordinary
meaning of the statute's language. Abruzzo, 231 Ill. 2d at 332. When a statute is clear and
unambiguous, a court must give effect to the plain and ordinary meaning of the language without
resort to other tools of statutory construction. Abruzzo, 231 Ill. 2d at 332. We may not depart from
the plain language of the statute by reading into it exceptions, limitations, or conditions that conflict
with the express legislative intent. In re Consolidated Objections to Tax Levies of School District
No. 205, 193 Ill. 2d 490, 496 (2000). We assume that the legislature did not intend absurdity,
inconvenience, or injustice. Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493,
504 (2000).
We conclude that the plain language of the Act does not provide immunity for injuries
sustained on driveways. Section 2 of the Act specifically provides that defendants "shall not be
liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk."
(Emphasis added.) 745 ILCS 75/2 (West 2008). The term "sidewalk" is generally understood to be
"a walk for foot passengers usu[ally] at the side of a street or roadway: a foot pavement." Webster's
Third New International Dictionary 2113 (1986); see also Bremer v. Leisure Acres-Phase II Housing
Corp., 363 Ill. App. 3d 581, 584 (2006) (relying on the same definition of sidewalk in interpreting
the Act); Kurczak v. Cornwell, 359 Ill. App. 3d 1051, 1057 (2005) (same). This common
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understanding of the term "sidewalk" as a path intended for pedestrians has been emphasized in other
cases examining the term "sidewalk" as it is used in the Act. See Bremer, 363 Ill. App. 3d at 584
(determining that the pathway between the plaintiff's apartment building and the parking lot was a
sidewalk under the Act because it was "a concrete walk for foot passengers" (emphasis added));
Kurczak, 359 Ill. App. 3d at 1057 (stating that under the Act, the term "sidewalk" encompasses all
" 'foot pavements' " leading to and from the residence, whether public or private (emphasis added));
Yu v. Kobayashi, 281 Ill. App. 3d 489, 493 (1996) (determining that the paved area, including the
stoop, leading from the apartment building to the parking lot constituted a sidewalk under the Act
because the path plus the stoop "form[ed] a paved path set aside primarily for pedestrians" (emphasis
added)).
A driveway, in contrast, is commonly understood to be a surface on which one drives motor
vehicles from a street to a private building--"a private road giving access from a public thoroughfare
to a building or buildings on abutting grounds" (Webster's Third New International Dictionary 692
(1986)). It is not commonly understood to be synonymous with a sidewalk, as it is not "a walk for
foot passengers" or a "foot pavement." To extend the scope of the Act to include driveways would
be to read into the Act an additional term that the legislature did not expressly include. See Ultsch
v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 190 (2007) ("a court should not attempt to
read a statute other than in the manner in which it was written"); In re Consolidated Objections, 193
Ill. 2d at 496 (courts may not depart from the plain language of the statute by reading into it
exceptions, limitations, or conditions that conflict with the express legislative intent).
Moreover, in construing statutes in derogation of the common law, courts may not "presume
that an innovation thereon was intended further than the innovation which the statute specifies or
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clearly implies." Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 69 (2004). Thus, "Illinois
courts have limited all manner of statutes in derogation of the common law to their express language,
in order to effect the least--rather than the most--change in the common law." Adams, 211 Ill. 2d
at 69-70 (citing cases). In line with this principle, any legislative intent to abrogate the common law
must be clearly and plainly expressed, and we will not presume such an intent from ambiguous
language. Tomczak v. Planetsphere, Inc., 315 Ill. App. 3d 1033, 1038 (2000). 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 (2007). A statute that appears to be in
derogation of the common law will be strictly construed in favor of the person sought to be subjected
to the statute's operation. Tomczak, 315 Ill. App. 3d at 1038; see also Van Meter v. Darien Park
District, 207 Ill. 2d 359, 380 (2003) (stating that, because the Local Governmental and Governmental
Employees Tort Immunity Act was in derogation of the common law, "it must be strictly construed
against the public entities involved").
Under the common law, a property owner has no duty to remove natural accumulations of
snow and ice. McBride v. Taxman Corp., 327 Ill. App. 3d 992, 996 (2002); American States
Insurance Co. v. A.J. Maggio Co., 229 Ill. App. 3d 422, 425 (1992). A property owner may be
liable, however, where the accumulation of snow and ice was caused or aggravated by him, or where
he has voluntarily undertaken to remove snow and ice but has done so negligently. McBride, 327
Ill. App. 3d at 996; American, 229 Ill. App. 3d at 425-26. In addition, a snow-removal contractor
may be liable to a third party where the contractor negligently removes snow and ice in that the
contractor creates or aggravates an unnatural accumulation of snow and ice. McBride, 327 Ill. App.
3d at 996.
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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. See
745 ILCS 75/2 (West 2008). Where, under the common law, an owner or snow-removal contractor
may have been liable for such injuries where the injuries were the result of an unnatural
accumulation of snow and ice created or aggravated by the owner or snow-removal contractor, they
are now immune unless their conduct was willful or wanton.
Given that the Act is in derogation of the common law, we are further constrained in our
interpretation of the Act. We must strictly construe the statute and may not presume that the
legislature intended anything other than that which the statute expressly states. Adams, 211 Ill. 2d
at 69-70. Consequently, we must limit the Act's application to injuries suffered on sidewalks, as the
Act refers only to sidewalks and makes no mention of driveways or any other type of surface. Were
we to hold that the Act, by referring to sidewalks, also applied to driveways, we would be repealing
a common-law remedy--liability for injuries resulting from the negligent creation or aggravation of
an unnatural accumulation of snow and ice on driveways. That is something we are not permitted
to do. Callahan, 374 Ill. App. 3d at 634. Accordingly, we conclude that the plain language of the
Act does not provide immunity for injuries sustained on driveways.
Defendants urge us to follow the First District's interpretation of the Act as found in Flight
v. American Community Management, Inc., 384 Ill. App. 3d 540 (2008). In Flight, the plaintiff
alleged that he had slipped and fallen on ice on his driveway that the defendants--the condominium
association, the condominium management company, and the snow-removal contractor--negligently
allowed to accumulate. Flight, 384 Ill. App. 3d at 541-42. The trial court granted summary
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judgment in favor of the defendants, and the plaintiff appealed, arguing that the trial court had
erroneously applied the Act. Flight, 384 Ill. App. 3d at 542.
On appeal, the First District agreed with the defendants' contention that summary judgment
was appropriate because the plaintiff failed to provide any evidence that he had slipped on anything
other than a natural accumulation of ice. Flight, 384 Ill. App. 3d at 543. Because there is no duty
to remove natural accumulations of snow or ice and defendants may be liable for only those injuries
sustained on unnatural accumulations of snow or ice, the plaintiff was required to present some
evidence that he slipped on an unnatural accumulation in order to avoid summary judgment. Flight,
384 Ill. App. 3d at 544. The First District therefore concluded that summary judgment against the
plaintiff was proper, because the plaintiff had failed to present any evidence that he slipped on an
unnatural accumulation of ice. Flight, 384 Ill. App. 3d at 544.
Although it had already concluded that the trial court had not erred in granting the defendants'
motion for summary judgment, the First District continued with a discussion of the application of
the Act to liability for injuries sustained on a driveway. The First District concluded that the trial
court had properly applied the Act to bar the plaintiff's claims because, given that the plaintiff was
walking on his driveway at the time he fell, the plaintiff's driveway was "sufficiently akin to a
sidewalk" to warrant application of the Act. Flight, 384 Ill. App. 3d at 545. In so deciding, the First
District did not engage in any interpretation of the Act, but instead relied solely on three earlier cases
for the proposition that a surface need be only "sufficiently akin" to a sidewalk to come within the
Act--Bremer, Kurczak, and Yu.
We decline to adopt the First District's interpretation of the Act, because it is contrary to the
plain language of the Act and because we do not believe that Bremer, Kurczak, and Yu mandate such
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an interpretation. As discussed, when the principles of statutory construction are applied to the Act,
the conclusion that the Act does not provide immunity for injuries sustained on driveways becomes
apparent. The First District did not engage in any statutory interpretation, apply any of the well-
recognized principles of statutory construction, or examine the plain language of the Act. Instead,
the First District simply relied upon three cases that are distinguishable from the present case and
the case presented in Flight.
In Bremer, the plaintiff sued the owner and management company of her apartment building
after she slipped and fell on a patch of ice located on the concrete walkway leading from the
apartment building to the building's parking lot. Bremer, 363 Ill. App. 3d at 582. The plaintiff
argued that the Act should not bar her claims, because she fell on a "walkway" on the premises rather
than a public sidewalk bordering the property. The Third District disagreed, holding that the surface
on which the plaintiff fell was a sidewalk under the plain language of the Act because it was a paved
path for foot passengers. Bremer, 363 Ill. App. 3d at 584.
In Kurczak, the plaintiff sued his ex-wife for injuries he suffered after slipping and falling
on ice located on a paved walkway between the defendant's driveway and front door. Kurczak, 359
Ill. App. 3d at 1054. The plaintiff contended that the Act should not bar his claim, because the Act
applied only to public sidewalks bordering residential property, not private walkways located entirely
on private property. Kurczak, 359 Ill. App. 3d at 1056. This court concluded that the surface on
which the plaintiff fell was a sidewalk under the plain language of the Act because it was a walk for
foot passengers and because the Act did not distinguish between public and private sidewalks.
Kurczak, 359 Ill. App. 3d at 1057.
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The plaintiff in Yu sued the owners of her apartment building and the snow-removal
contractor after she slipped and fell on snow that had accumulated on the walkway leading from the
apartment building to the building's parking lot. Yu, 281 Ill. App. 3d at 490-91. The plaintiff
contended on appeal that the trial court erred in dismissing her complaint under the Act, because
there existed a genuine issue of material fact as to whether she fell on the "stoop" or the "sidewalk."
Yu, 281 Ill. App. 3d at 491. This court concluded that the Act applied regardless of whether plaintiff
fell on the "stoop," because the "stoop" was part of the sidewalk under the plain language of the Act,
in that both the "stoop" and the sidewalk were paved surfaces set aside primarily for pedestrians.
Yu, 281 Ill. App. 3d at 493.
In all three of these cases, the courts were presented with factual situations distinguishable
from those at issue in the present case and in Flight. In Bremer, Kurczak, and Yu, the courts were
asked to determine whether, under the Act, the term "sidewalk" included private paved walkways
and a stoop connected to a private paved walkway. All of these surfaces were primarily intended
for use by pedestrian traffic and, thus, were determined to fall under the ordinary meaning of a
sidewalk as a "walk for foot passengers" or a "foot pavement." None of these surfaces was intended
to be utilized by motor vehicles, nor could they, practically speaking, be used by motor vehicles. In
contrast, the surfaces in both the present case and Flight were driveways--commonly understood to
be surfaces used for motor vehicles and not to be synonymous with sidewalks.
Moreover, despite the First District's contention, the courts in Bremer, Kurczak, and Yu did
not determine that the surfaces in those cases were sidewalks under the Act because they were
"sufficiently akin" to sidewalks, but did so because they concluded that the surfaces at issue were
actual sidewalks under the plain meaning of that term. Bremer, 363 Ill. App. 3d at 584; Kurczak,
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359 Ill. App. 3d at 1057; Yu, 281 Ill. App. 3d at 493. The statement in Yu (which was quoted in
Kurczak) that the sidewalk there was sufficiently akin to a traditional sidewalk was made in response
to the contention that the walkway at issue was not a traditional sidewalk in that it was not part of
a municipal street. See Yu, 281 Ill. App. 3d at 493 ("Even if the path is not a 'sidewalk' in the
traditional sense of a paved area that is part of a municipal street [citation], it is sufficiently akin to
a traditional sidewalk that to classify it otherwise would be unreasonable"). The statement did not
alter the determination that the surface constituted a sidewalk as that term is commonly understood.
Nor did it establish a test for determining whether surfaces not encompassed in the plain meaning
of the term "sidewalk" nevertheless constitute a sidewalk for purposes of the Act.
Finally, we find problematic the Flight court's determination that the driveway in that case
was sufficiently akin to a sidewalk simply because the plaintiff was walking on it (Flight, 384 Ill.
App. 3d at 545). If we were to adopt the analysis of Flight, we would be forced to consider any
paved surface on which a plaintiff might walk, whether on a regular basis or only once, a sidewalk
under the Act. To do so would be to assume that the legislature, by its use of the term "sidewalk,"
intended to abrogate the entirety of the common-law liability imposed on residential property owners
and their agents for negligent snow removal; this we may not do. See Adams, 211 Ill. 2d at 69
(courts may not "presume that an innovation thereon was intended further than the innovation which
the statute specifies or clearly implies"); Michigan Avenue, 191 Ill. 2d at 504 (in interpreting
statutes, courts are to assume that the legislature did not intend absurdity, inconvenience, or
injustice).
We are aware that in many modern housing developments the driveway is the only paved
means of ingress and egress to and from homes for both vehicle and foot traffic and that, as a result,
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public policy would be well served to encourage the clearing of such surfaces. These considerations,
however, do not alter the plain language of the Act, by which we are constrained. Such
considerations are within the province of the legislature to act upon should it see fit.
In sum, we conclude that the plain language of the Act does not provide immunity for injuries
sustained on driveways. Accordingly, the trial court erred when it dismissed plaintiff's complaint
on the basis that his claims were barred by the Act. Because we have concluded that the trial court
erred in dismissing plaintiff's complaint under the Act, we need not address plaintiff's contention that
even if the Act did apply to bar some claims, his premises liability claims should not have been
dismissed. We therefore reverse the trial court's dismissal of plaintiff's complaint and remand the
matter to the trial court for further proceedings.
CONCLUSION
For the foregoing reasons, we reverse the judgment of the Lake County circuit court and
remand for further proceedings.
Reversed and remanded.
McLAREN and BOWMAN, JJ., concur.
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