Case Law Update: Natural Accumulation Doctrine

Snow is falling, ice is forming and customers are slipping and falling all over the parking lot – thank goodness for the natural accumulation doctrine. The doctrine was recently applied and upheld by an appellate court so this is a good time to take a look at it one more time.

In Allen v. CAM Girls, LLC, 2017 IL App (1st) 163340 (December 26, 2017), the plaintiff slipped and fell in ice and snow in a strip mall parking lot.  The plaintiff described the conditions as a parking lot covered in matted-down snow.  She guessed ice was under the snow based on the way she fell, but she never saw ice.  The plaintiff also guessed a nearby mound of snow could have melted and refroze based on the weather conditions that week, but she did not see a trail of water from the mound to where she fell.

A police officer responded to the scene after the fall and he testified ice was observed throughout the parking lot, including some areas of bumpy ice. He did not see any unplowed snow in the lot.  The plaintiff sued the property owner and snow removal contractor.

Under the snow removal contract, the vendor was to plow the parking lot and remove the snow from the sidewalks after any snowfall of two or more inches. The contract did not require ice removal or salting of the parking lot.  The owner of the property told the vendor not to salt because it was an extra charge so the parking lot was not salted before the plaintiff’s fall.

According to the weather report, two days before the fall there was 4.3 inches of snowfall and after the snow the temperature went below freezing, resulting in layers of ice.  The parking lot was plowed the next day but a witness stated it appeared choppy from the plow going around cars.  There was snow and ice in the parking lot.  However, by late in the day before the incident, a witness described the parking lot as fully plowed with all the uneven ice and snow removed.

The defendants filed a motion for summary judgment. They argued the plaintiff could not say with certainty if she fell on ice and she saw no water accumulated in the area when she fell.  The vendor also argued it did not breach the contract because there was no duty to plow and they were instructed not to salt.

In response, the plaintiff argued the property owner had a duty to remove ice from the parking lot and the vendor negligently plowed the lot. The plaintiff attached affidavits from two experts to support her arguments.  One was a snow and ice removal expert and he opined the plowing was performed negligently and salting should have occurred.  The other expert was a civil engineer and he opined the snowplowing and maintenance of the parking lot created icy conditions and caused the fall.  He focused on the drainage flow pattern of the lot and how thawing and refreezing could occur.

The motion judge, J. John Ehrlich, granted the defendants’ motion for summary judgment. The court also denied the plaintiff’s motion to reconsider and the plaintiff’s motion to file an amended complaint.  The plaintiff filed an appeal.

The following is a brief summary of the case law in this area that was analyzed and followed by the appellate court in upholding the summary judgment ruling:

  • A property owner has no general duty to remove natural accumulations of snow and ice because it is unrealistic to expect property owners to keep all areas where people may walk clear from ice and snow at all times during the winter months. See, Claimsone v. Professional Property Management, LLC, 2011 IL App (2d 101115, ¶ 18, 21; Frederick v. Professional Truck Driver Training School, Inc., 328 Ill.App.3d 472, 476 (2002).
  • A plaintiff in a slip and fall case involving snow and ice must show that: (1) the accumulation of snow or ice was unnatural; and (2) the property owner had actual or constructive knowledge of the condition. Hornacek v. 5th Avenue Property Management, 2011 IL App (1st) 103502, ¶ 29
  • A defendant may voluntarily undertake the removal of natural accumulations of snow and ice and in that case, the defendant has a duty to exercise reasonable care doing so. Hornacek v. 5th Avenue Property Management, 2011 IL App (1st) 103502, ¶ 29.

The plaintiff attempted to get around the natural accumulation doctrine by relying on Section 324A of the Restatement (Second) of Torts which applies tort liability to third parties. The plaintiff argued she can recover in tort because there was a contractual obligation to remove snow and ice.  The appellate court noted there is actually a split in Illinois on this issue and discussed those cases:

Eichler v. Plitt Theatres, Inc., 167 Ill.App.3d 685 (2nd Dist. 1988)

Plaintiff admitted she slipped on a natural accumulation of snow and ice in the parking lot but argued the property owner was contractually obligated to remove snow and ice from the parking lot. The appellate court reversed summary judgment for the defendant.  The court held if a defendant is required by contract to remove snow and ice and the defendant makes no attempt to do so it could be held liable for a fall caused by a natural accumulation.  In contrast, if a defendant takes some measures to remove snow and ice then it will only be held liable if those efforts were defective.

Schoondyke v. Heil, Heil, Smart & Golee, Inc., 89 Ill.App.3d 640 (1st Dist. 1980)

Two inches of snow fell in the morning and by evening no shoveling had occurred. The plaintiff slipped and fell on the sidewalk outside her condo building and she sued the association because the bylaws required removal of snow and ice. Even though the snow was a natural accumulation, the court found the association assumed the duty to remove natural accumulations of snow and ice.

Tressler v. Winfield Village Cooperative, Inc., 134 Ill.App.3d 578 (4th Dist. 1985)

The plaintiff slipped and fell on ice and snow and sued her landlord. The tenant handbook stated the landlord would remove snow.  The court found the landlord had a contractual duty to remove natural accumulations of snow.

But in contrast:

McBride v. Taxman Corp., 327 Ill.App.3d 992, 997-98 (1st Dist. 2002)

Plaintiff fell on snow and ice outside a store entrance and sued multiple parties, including the snow removal contractor which was required to remove snow and ice from the sidewalks. The appellate court upheld summary judgment for the contractor under the natural accumulation doctrine, despite the contractual duty.  The court ruled the duty was only not to negligently remove snow by creating or aggravating an unnatural accumulation of snow or ice.

Madeo v. Tri-Land Properties, Inc., 239 Ill.App.3d 288 (2nd Dist. 1992)

Property owner and snowplowing company could not be held liable for customer’s slip and fall injuries in the absence of evidence that the customer slipped on an unnatural accumulation of ice.

Crane v. Triangle Plaza, Inc., 228 Ill.App.3d 325 (2nd Dist. 1992)

Summary judgment was proper for property owner and snow removal contractor since the plaintiff presented no factual basis to support her assertion that the ice on which she slipped was caused by an unnatural accumulation of snow.

In this case, the court did not try to resolve the split because under either reasoning summary judgment was appropriate. As stated in Eichler, as long as the defendant made an attempt to remove the snow the natural accumulation doctrine will apply.  Since it was undisputed that the parking lot had been plowed prior to the incident, all the case law consistently held the natural accumulation doctrine would apply.

Interestingly, the plaintiff’s attempt to create a question of fact using expert affidavits was also not persuasive. The experts focused on an accumulation of ice and opined as to how it was likely created but the plaintiff admitted she never saw ice.  The court refused to accept the plaintiff’s guessing and speculation that ice may have been involved with her fall.

Clearly this is an issue the Illinois Supreme Court should address because appellate court panels in the same district are in disagreement on this issue.   However, under either view of thinking, stores and restaurants should generally not be impacted because they are typically not the party with the duty to remove snow and ice.