Opinion
Case No. 99 C 0694.
October 5, 2000.
MEMORANDUM OPINION AND ORDER
This is a slip and fall case. Dianne Lynne Dyer has brought suit against Oakbrook Corporation, Arlington Heights Housing Partners, Madsen Midwest, and Madison Real Estate (collectively "Oakbrook"). She complains that she was injured in their parking lot after falling on ice that she claims formed by runoff from piles of snow that had been left after the lot was plowed. In turn, Oakbrook filed a third-party complaint against their snow plower, R. Lederleitner, Ltd. Given diversity of citizenship and the requisite amount in controversy, this Court has jurisdiction under 28 U.S.C. § 1332.
Both sides have moved for summary judgment. Dyer has provided no evidence from which a jury could find that the defendants had actual or constructive knowledge of an unnatural accumulation of snow or ice. This is a necessary element of her claim. Ostry v. Chateau Ltd. Partnership, 241 Ill. App.3d 436, 444-45, 608 N.E.2d 1351, 1357 (1993); Fitz Simons v. National Tea Co, 29 Ill. App.2d 306, 318, 173 N.E.2d 534, 540 (1961). The "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue" as to this material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Therefore, Oakbrook is entitled to a judgment as a matter of law. Oakbrook's motion for summary judgment is granted. Dyer's motion is denied.
Facts
The defendants own a property in Arlington Heights, Illinois, known as "Dunton Tower," that houses several retail businesses and an adjacent parking lot. Following snowfalls in January of 1997, the parking lot had been plowed. Oakbrook has introduced evidence that Lederleitner had last plowed on January 27th (seven days before the accident). Both sides agree that snow had been piled in the corners of the lot.
Dyer arrived at the parking lot around noon on February 4, 1997. She worked in the neighborhood and had parked her car in Oakbrook's parking lot. She put a bag in her car and then left to do some shopping. While walking toward the building, she slipped and fell. She stated that she saw nothing unusual or hazardous before falling but felt ice on the ground after she fell. In her amended complaint, she claimed that as a result of the fall, she suffered from displaced, forty-five degree fractures of the radius and ulna in her left arm. There were no witnesses.
Dyer claims that the snow piles in the corners of the parking lot melted over time, causing water to flow downhill toward a drain at the center of the lot, and that some of the water froze into the ice that caused her to slip. She has introduced a land surveyor's report that details the slope of the parking lot and the drainage patterns. However, Dyer is not claiming that the slope of the lot was excessive or defective. See, e.g., Wells v. Great Atl. Pac. Tea Co., 171 Ill. App.3d 1012, 1015-17, 525 N.E.2d 1127, 1129-30 (1988).
Analysis
In viewing the record, this court must view all the evidence in the light most favorable to Dyer — the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986); Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999). In responding to Oakbrook's summary judgment motion, Dyer may not rest on the pleadings but must affirmatively demonstrate that there is a genuine issue of material fact that requires trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324; Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994).
Premises liability that arises from injuries caused by ice and snow is an area of the law that, not surprisingly, is well-developed in Illinois, Under Illinois tort law, the plaintiff bears the burden of proving all the elements of her claim. She must show the existence of a duty, breach of that duty, and an injury proximately resulting from that breach. Doe v. McKay, 183 Ill.2d 272, 278, 700 N.E.2d 1018, 1021 (1998). Generally, a landowner is under no duty to remove natural accumulations of ice or snow. Selby v. Danville Pepsi-Cola Botthng Co., 169 Ill. App.3d 427, 436, 523 N.E.2d 697, 701 (1988). By relieving landowners of the burden of strict vigilance, the law recognizes the vagaries of weather in this state, where snow storms can be sudden and intense.
However, unnatural accumulations of ice or snow can lead to the imposition of liability. Id. Accumulations of ice or snow will be considered unnatural "where a landowner negligently performs ice and snow removal, adding to or creating a new hazard." Id. Additionally, the plaintiff must show that the unnatural accumulation "has been there long enough to charge the responsible party with notice and knowledge of the dangerous condition." Fitz Simons v. National Tea Co., 29 Ill. App.2d 306, 318, 173 N.E.2d 534, 540 (1961) (citing Graham v. City of Chicago, 346 Ill. 638, 644, 178 N.E. 911, 913 (1931) (imposing liability where city had flooded a sidewalk and allowed ice to remain for 13 days)). Stated another way, the plaintiff must show that the defendant had "actual or constructive knowledge of the condition." Ostry v. Chateau Ltd. Partnership, 241 Ill. App.3d 436, 444-45, 608 N.E.2d 1351, 1357 (1993) (citing American States Ins. Co. v. A.J. Maggic Co., 229 Ill. App.3d 422, 426, 593 N.E.2d 1083, 1085 (1992) (affirming summary judgment dismissal of a case based upon natural accumulation)). This element is missing from Dyer's case.
The notice requirement has been dispositive in a number of Illinois cases. In Fitz Simons, a store parking lot had been plowed, leaving piles of snow at the east end of the lot. 29 Ill. App. 2 d at 311, 173 N.E.2d at 537. Over a period of approximately three weeks, the piles melted, draining water toward a drain at the west end of the lot. Id. The store manager admitted that this water would freeze and that it "could have been there 2 or 3 days." Id. at 313, 173 N.E.2d at 538. In Ostry, snow plowing had created the unnatural accumulation two days before the accident, and the defendant's property manager testified that she noticed icy conditions that could be hazardous. 241 Ill. App.3d at 445, 608 N.E.2d at 1357. In Webb v. Morgan, 176 Ill. App.3d 378, 531 N.E.2d 36 (1988), the court upheld a jury verdict imposing liability for ice that had formed downhill from snow piles based partly upon a showing that the defendant had received customer complaints. Id. at 383, 531 N.E.2d at 39-40. In Bansch v. Donnelly, 77 Ill. App.3d 922, 396 N.E.2d 869 (1979), the court granted judgment notwithstanding the verdict even though it had been established that water would drip from the defendants' building overhang and freeze into patches of ice. Noting that four days of above-freezing weather had elapsed since the last rain before the accident, the Bansch court expressly relied on the lack of notice to reject the plaintiff's claim. Id. at 926.
In sum, Illinois law requires plaintiff's in these sorts of cases to introduce either evidence of actual knowledge (such as customer complaints) or the persistence of the unnatural accumulation of ice or snow over a sufficiently lengthy period of time.
Even when viewing all the evidence in the light most favorable to Dyer, there is no evidence that shows or suggests that Oakbrook had actual or constructive knowledge of the allegedly icy condition. The record reveals no actual awareness on the part of Oakbrook or its employees, unlike in the cases cited above. Furthermore, there is no evidence that any other customer had noticed water draining from the snow piles and freezing on the lot. Finally, Dyer has offered no evidence indicating how long the ice had been present on the lot. At the summary judgment stage, we will not theorize on behalf of the plaintiff. With no evidence of actual knowledge, and no evidence that an unnatural accumulation existed for a period of time sufficient to charge Oakbrook with constructive knowledge, Dyer's claim must fail. Oakbrook is entitled to summary judgment.
In her summary judgment motion, Dyer claims that Oakbrook has admitted liability by claiming in its third-party complaint that Lederleitner caused an unnatural accumulation. This argument fails for two reasons. First, the Federal Rules of Civil Procedure make it clear that a party may plead in the alternative. A party "may set forth two or more statements of a claim or defense alternately. . . . [and] may also state as many separate claims or defenses as the party has regardless of consistency." Fed.R.Civ.P. 8(e)(2). Second, even if we were to read Oakbrook's third-party complaint as making admissions, it contains no admission that Oakbrook was on notice of the unnatural accumulation — the issue on which Dyer's claim founders.
Conclusion
Defendants' motion for summary judgment is granted. Dyer's motion for summary judgment is denied. Dyer's motion to strike affirmative defenses is denied as moot. The Clerk is directed to enter judgment in favor of defendants and against plaintiff.