Spencer v. Edward Rose Assocs. LLC.

2023 IL App (4th) 220964-U

• Court: Appellate Court of Illinois
• Decided: September 8, 2023
• Docket: 4-22-0964
• Status: Unpublished

Opinion

2023 IL App (4th) 220964-U NOTICE FILED This Order was filed under September 8, 2023 Supreme Court Rule 23 and is NO. 4-22-0964 Carla Bender not precedent except in the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

MARY SPENCER, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Winnebago County EDWARD ROSE ASSOCIATES, LLC, d/b/a BEACON ) No. 20L71 HILL APARTMENTS, ) Defendant-Appellee. ) Honorable ) Ronald Anthony Barch, ) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Justices Cavanagh and Zenoff concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err in granting summary judgment in favor of defendant.

¶2 In February 2020, plaintiff, Mary Spencer, filed a two-count negligence complaint

against defendant, Edward Rose Associates, LLC, d/b/a Beacon Hill Apartments, and Preferred

Roofing and Siding LLC, which is not a party to this appeal. Plaintiff sought damages for

injuries she suffered following a fall on a sidewalk owned and controlled by defendant. In May

2022, defendant filed a motion for summary judgment. After a hearing, the Winnebago County

circuit court granted summary judgment in defendant’s favor, finding defendant owed plaintiff

no common law duty to remove the natural accumulations of snow and ice and a Rockford city

ordinance did not create a statutory duty.

¶3 Plaintiff appeals, arguing the circuit court erred by granting summary judgment

for defendant. We affirm. ¶4 I. BACKGROUND

¶5 On February 20, 2018, at approximately 11 p.m., plaintiff was returning home

from a conference at Life Church. After parking her car in front of her apartment complex,

plaintiff walked on the sidewalk toward her apartment. Plaintiff walked a few feet before she

slipped and fell on the ground. Unable to get up, plaintiff called an ambulance and was

transported to Swedish American Hospital. Plaintiff suffered a broken foot and required multiple

surgeries.

¶6 In her February 2020 complaint, plaintiff alleged one count of negligence against

defendant and one count of negligence against Preferred Roofing and Siding LLC. Plaintiff

alleged on February 20, 2018, “there existed a defect, which caused Plaintiff to fall to the ground

and become injured,” namely, “[a]n unnatural accumulation of ice and/or snow on the premises

of the Property.” Regarding defendant, plaintiff alleged it had a duty to plaintiff “to exercise

ordinary care in keeping the common areas of the Property in a reasonably safe condition.” She

contended defendant violated that duty inter alia by carelessly and negligently failing to

(1) maintain the sidewalk, (2) warn people of the defect, and (3) remedy the unnatural

accumulation of snow and ice. Plaintiff further asserted, as a direct and proximate result of one

or more of defendant’s aforementioned actions, she sustained severe and permanent injuries.

¶7 In May 2022, defendant filed a motion for summary judgment (735 ILCS

5/2-1005 (West 2022)), asserting no evidence showed the accumulation of ice upon which

plaintiff slipped was an unnatural accumulation. Alternatively, defendant argued even if plaintiff

could establish her fall was the result of an unnatural accumulation of ice and snow, the Snow

and Ice Removal Act (745 ILCS 75/2 (West 2018)) “immunize[d] the defendant in this case.” In

support of the motion, defendant attached the discovery deposition of plaintiff.

-2- ¶8 In her deposition, plaintiff testified she did not notice ice or snow on the sidewalk

when she left her apartment to attend a conference at her church. Upon returning home from the

conference at approximately 11 p.m., plaintiff indicated “there was snow on the ground.”

Plaintiff did not recall whether the snow and ice covered the entire sidewalk. Further, she did

not recall seeing anyone remove the snow and ice from the sidewalk on the days leading up to

the incident.

¶9 In August 2022, plaintiff filed a response asserting for the first time defendant

owed a duty to plaintiff to remove the snow and ice from its sidewalks because a Rockford city

ordinance imposed a duty to do so. The ordinance provides, in relevant part, the following:

“(a) The owner or occupier of each lot or part of lot, improved or

unimproved, to which the general public is invited, shall remove all snow

and ice which may have fallen or accumulated upon the sidewalk in front

of the premises which he or she owns or occupies not later than 12:00

noon of the day after the same has ceased to fall or accumulate. Provided

that when ice has so formed upon any sidewalk that it cannot be removed,

then the owner or occupier shall keep the same effectively sprinkled with

sand, salt or other suitable substance in such manner as to prevent the ice

from being dangerous, until such time as it can be removed, and then it

shall be promptly removed.

(b) Any person violating any of the provisions of this section shall

be subject to a fine each day any violation of this section continues shall

constitute a separate offense.” Rockford Ordinance No. 2011-033-O,

§ 26-10 (eff. Mar. 21, 2011).

-3- Plaintiff asserted defendant’s breach of duty proximately caused her injuries. Further, defendant

could not avail itself of a defense under the Snow and Ice Removal Act because defendant made

no effort to remove the accumulation of snow and ice.

¶ 10 On September 30, 2022, the circuit court held a hearing on defendant’s summary

judgment motion. At the hearing, plaintiff’s counsel acknowledged he could not “cite to direct

evidence that it was an unnatural accumulation of ice and snow.” Rather, “the Rockford

ordinance establishes a duty on the defendant to clear that ice and snow.” In granting

defendant’s motion, the court’s written order noted: “Between February 7, 2018 and February

20, 2018, the Rockford area experienced 6 snow falls. Collectively, 12.4 inches of snow fell in

the Rockford area. The last snow fall prior to the date of [plaintiff’s] fall occurred on February

17, 2018.” For the purposes of the motion, the court assumed defendant undertook no efforts to

remove the snow and ice from its sidewalk. In addition, the court noted plaintiff acknowledged

she had “no evidence establishing that she was caused to slip and fall by an unnatural

accumulation of snow or ice.” The court concluded summary judgment was proper because

plaintiff had no evidence “to establish or infer” the snow and ice upon which she slipped and fell

was an unnatural accumulation. As a result, defendant did not owe a duty to plaintiff to remove

the natural accumulation of ice and snow. Regarding plaintiff’s argument the Rockford

ordinance imposed a statutory duty on defendant, the court noted the rationale in Klikas v.

Hanover Square Condominium Ass’n, 240 Ill. App. 3d 715, 608 N.E.2d 541 (1992), was

persuasive, finding “[a]n ordinance imposing a tort duty upon a private landowner to remove

natural accumulations of snow and ice would give rise to unreasonable consequences.”

¶ 11 This appeal followed.

¶ 12 II. ANALYSIS

-4- ¶ 13 Initially, we note defendant argues plaintiff should be judicially estopped from

arguing the ordinance imposed a duty upon defendant because her complaint did not allege that

theory. In furtherance of its judicial estoppel argument, defendant contends plaintiff’s “sudden

fact reversal” (from alleging an unnatural accumulation occurred to alleging a statutory duty

existed) prevented defendant “from succeeding on its Snow and Ice Removal Act affirmative

defense.” We conclude the record indicates plaintiff abandoned her unnatural accumulation

theory during the hearing on defendant’s motion for summary judgment. However, defendant

has forfeited any objection to the lack of specificity in pleading the statutory duty theory because

defendant failed to object below when plaintiff raised this theory in her response to defendant’s

motion for summary judgment. Instead, defendant addressed the theory in its reply to plaintiff’s

response. By failing to object to the pleading deficiency in the circuit court, defendant forfeited

this issue. See Williams v. Alfred N. Koplin & Co., 114 Ill. App. 3d 482, 486, 448 N.E.2d 1042,

1046 (1983) (holding a pleading deficiency is forfeited where the party fails to object to the

theory advanced by the opponent in response to the motion for summary judgment).

¶ 14 Plaintiff contends the circuit court erred by granting summary judgment in favor

of defendant because defendant was required by ordinance to remove the snow and ice.

Defendant disagrees, asserting the court properly found the ordinance did not impose a duty,

actionable in tort, on private landowners to remove snow and ice from privately owned

sidewalks.

¶ 15 A circuit court’s ruling on a motion for summary judgment presents a question of

law, and thus we apply the de novo standard of review. A.B.A.T.E. of Illinois, Inc. v. Quinn,

2011 IL 110611, ¶ 22, 957 N.E.2d 876. Section 2-1005(c) of the Code of Civil Procedure (735

ILCS 5/2-1005(c) (West 2022)) provides summary judgment is proper when the “pleadings,

-5- 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.” “With a summary judgment motion, courts construe the pleadings, depositions,

admissions, and affidavits strictly against the movant and liberally in favor of the opponent.”

Smith v. Hancock, 2019 IL App (4th) 180704, ¶ 19, 133 N.E.3d 666. “A defendant in a

negligence suit is entitled to summary judgment if he can demonstrate that the plaintiff has failed

to establish a factual basis for one of the required elements of a cause of action for negligence.”

Smith v. Tri-R Vending, 249 Ill. App. 3d 654, 658, 619 N.E.2d 172, 175 (1993).

¶ 16 To prove a claim of negligence, “a plaintiff must establish the existence of a duty,

a breach of the duty, and an injury to the plaintiff that was proximately caused by the breach.”

Vancura v. Katris, 238 Ill. 2d 352, 373, 939 N.E.2d 328, 342 (2010). “Under the natural

accumulation rule, a landowner or possessor of real property has no duty to remove natural

accumulations of ice, snow, or water from its property.” Krywin v. Chicago Transit Authority,

238 Ill. 2d 215, 227, 938 N.E.2d 440, 447 (2010). “Even if the snow and ice remain on the

property for an ‘unreasonable’ length of time, it has been held that no liability will be imposed

on the proprietor as long as the snow and ice is a natural accumulation.” Kellermann v. Car City

Chevrolet-Nissan, Inc., 306 Ill. App. 3d 285, 288, 713 N.E.2d 1285, 1288 (1999).

¶ 17 Plaintiff asserts the circuit court’s reliance on Klikas was misplaced because the

“unambiguous language” of the ordinance required defendant to remove ice and snow from its

privately owned sidewalk. Specifically, “Rockford does not own the sidewalk where Plaintiff

slipped and fell, and thus has no comparable public service interest in keeping the sidewalk clear

of ice and snow.” Plaintiff asserts the public policy intention behind the ordinance is “to protect

pedestrians like the Plaintiff from a dangerous walking surface.”

-6- ¶ 18 In Klikas, the plaintiff slipped and fell on a snow-covered public sidewalk outside

of a building owned by defendant. Klikas, 240 Ill. App. 3d at 717, 608 N.E.2d at 543. The

accident occurred three days after a snowfall during which the defendant condominium

association failed to clear the sidewalk. Klikas, 240 Ill. App. 3d at 717, 608 N.E.2d at 543.

While the plaintiff conceded an abutting property owner did not have a common law duty to

remove snow and ice from a public sidewalk, he nevertheless asserted the defendant owed a duty

to remove the snow pursuant to a provision in the Hanover Park Village Code, which provided,

“ ‘it shall be the responsibility of the owner or occupant of any premises abutting a sidewalk or

sidewalks to remove from such walks, within twenty-four (24) hours after a snowfall of two (2)

inches or more, substantially all ice or snow accumulated thereon.’ ” Klikas, 240 Ill. App. 3d at

717-18, 608 N.E.2d at 543 (quoting Hanover Park Village Code, art. VI, § 22-98 (1987)). The

plaintiff argued the provision constituted “a public safety measure and the plaintiff is included in

the class of persons that the ordinance was designed to protect.” Klikas, 240 Ill. App. 3d at 718,

608 N.E.2d at 544. The appellate court analyzed whether the ordinance created a duty of care for

the purposes of a negligence action. Klikas, 240 Ill. App. 3d at 718, 608 N.E.2d at 544.

¶ 19 In holding the ordinance did not create a duty of care, the appellate court

determined the ordinance requiring the removal of snow within a 24-hour period was intended to

benefit the municipality. Klikas, 240 Ill. App. 3d at 719-20, 608 N.E.2d at 544-45. The court

noted a municipality has no duty to remove ice and snow from its sidewalks but could elect to do

so as a service to the public. Klikas, 240 Ill. App. 3d at 720, 608 N.E.2d at 545. In support of its

holding, the court stated, “[W]hether an ordinance is considered a public safety measure is

largely a matter of public policy. Unless a statute or ordinance specifies a civil remedy, courts

interpret whether the intent of the legislature was to provide for tort liability.” Klikas, 240 Ill.

-7- App. 3d at 720, 608 N.E.2d at 545. While the court agreed “it may be reasonably foreseeable

and likely that an individual would slip on uncleared snow and ice and sustain injuries, the

magnitude of the burden of guarding against these kinds of injuries in this part of the country is

great.” Klikas, 240 Ill. App. 3d at 720, 608 N.E.2d at 545. The court concluded the ordinance at

issue did not serve as a basis for tort liability, noting, “[I]mposing a tort duty on property owners

to remove all snow and ice from abutting public sidewalks within 24 hours of a snowfall would

have unreasonable consequences.” Klikas, 240 Ill. App. 3d at 720, 608 N.E.2d at 545.

¶ 20 Although Klikas involved a determination regarding a duty to remove snow and

ice from a municipally owned sidewalk, we find it instructive. As in Klikas, a violation of the

ordinance here fails to provide a basis for tort liability, but instead merely imposes a municipal

fine. The ordinance applies to “[t]he owner or occupier of each lot or part of lot, improved or

unimproved, to which the general public is invited” (Rockford Ordinance No. 2011-033-O, § 26-

10 (eff. Mar. 21, 2011).), requiring such owners or occupiers to “remove all snow and ice which

may have fallen or accumulated upon the sidewalk in front of the premises which he or she owns

or occupies not later than 12:00 noon of the day after the same has ceased to fall or accumulate.”

(Rockford Ordinance No. 2011-033-O, § 26-10 (eff. Mar. 21, 2011).). As such, we conclude the

purpose of the ordinance is to benefit the municipality. Moreover, had the ordinance been

intended to impose tort liability for an ordinance violation, the municipality would have

expressly provided for such. We note violations of other sections of the Rockford Code of

Ordinances do expressly provide liability language. For example, in the same section, the

Rockford Code of Ordinances includes a section entitled “Liability for damages sustained

because of streets or sidewalks injured or under repair.” Rockford Ordinance No. 2011-033-O,

§ 26-6 (eff. Mar. 21, 2011). Specifically, a person who injures or tears up any pavement “shall

-8- be held responsible and liable to the city for any and all damages to persons or property in

consequence of such condition which the city shall suffer or be adjudged to pay.” Rockford

Ordinance No. 2011-033-O, § 26-6 (eff. Mar. 21, 2011). We also agree with the circuit court

with regard to its public policy considerations. Without express language to the contrary, an

ordinance imposing a duty, actionable in tort, for a private landowner to remove natural

accumulations of snow and ice in this part of the Midwest would have unreasonable

consequences. Therefore, the court was correct to conclude the ordinance at issue did not

“expressly or explicitly declare a civil remedy in the event of a breach.”

¶ 21 Accordingly, we find the circuit court properly concluded plaintiff could not

establish the ordinance at issue imposed a statutory duty upon defendant. Thus, summary

judgment in defendant’s favor was proper.

¶ 22 III. CONCLUSION

¶ 23 For the reasons stated, we affirm the circuit court’s judgment.

¶ 24 Affirmed.

-9-