Slip & Fall On Ice – A Natural Accumulation Law Refresher

It’s that time of year again – snowmen, ice skating, reindeer – and of course, slip and falls on snow, ice and water.  Now that winter is upon us, it’s time for a little refresher course in our beloved natural accumulation doctrine.  To anyone handling claims in Illinois, or any of the other Northern states that has this doctrine, you understand my love for it.

If there is one legal doctrine we can generally count on in Illinois, even Cook County, it’s the natural accumulation doctrine.  So far this year, I found 14 Illinois appellate decisions evaluating summary judgment rulings based on this doctrine and all but 2 were upheld.  Those are great odds.

Here is my top ten list for things every in-house counsel, claim examiner and risk manager who practices in Illinois should remember this winter season and throughout the next year:

    #10:   Premises owners/holders are not required (have no duty) to remove natural accumulations of ice, water or snow.  See, Ordman v. Dacon Management Corp., 633 N.E.2d 1307 (1994); Krywin v. Chicago Transit Authority, 238 Ill.2d 215, 227 (2010).

    #9:  Caveat #1 to Doctrine – If a premises owner/holder voluntarily undertakes to remove snow, ice or water, the premises owner/holder is now required (under a duty) to remove the snow, ice or water with “reasonable care.”  The premises owner/holder can be found liable if the removal is not done properly (performed negligently).  See, Ordman v. Dacon Management Corp., 633 N.E.2d 1307 (1994).

    #8:  A premises owner/holder’s gratuitous performance of removing snow and spreading salt does not alone create a continuing duty to perform those tasks. See, Ordman v. Dacon Management Corp., 633 N.E.2d 1307 (1994).  This means that in theory, if you shovel the walk in front of your store occasionally or put salt down sometimes, you should not be creating a duty to do so all the time.

    #7:  Caveat #2 to Doctrine – If the injury was caused by an unnatural accumulation of ice, water or snow which was caused by the premises owner/holder, liability can be imposed.  See, Ordman v. Dacon Management Corp., 633 N.E.2d 1307 (1994).

    #6:  The finding of an unnatural or aggravated natural condition must be based upon an identifiable cause of the ice formation, such as a leaky roof or surface irregularities leading to the collection of water. Gilberg v. Toys “R” Us, Inc., 467 N.E.2d 947 (1984).  When a premises owner/holder causes an unnatural accumulation of ice or snow by their use or maintenance of the area, and the accumulation exists on the premises long enough to charge the premises owner/holder with knowledge, it is required (under a duty) to make the premises “reasonably safe.” See, Ordman v. Dacon Management Corp., 633 N.E.2d 1307 (1994).

    #5:  If a company/vendor is under a contractual duty to remove snow and/or ice from a commercial property, the contract language determines the duties of that party.  West Bend Mutual Insurance Co. v. Talton, 2013 IL App (2d) 120814, ¶ 19; Gross v. Prestige Nursery Garden Center, Inc., 2014 IL App (2d) 131200-U (October 16, 2014).  In general, this means that if the contract does not require the snow removal company to remove ice, in theory the company should not be found liable for failing to remove ice.  In other words, be VERY careful how you phrase the contractual duties and responsibilities of your snow removal vendors. I assisted one of my clients with drafting their snow removal contract and since then, the number of customer incidents/lawsuits successfully tendered to the vendor has significantly increased.  The contract language is key!

    #4:  The presence of naturally tracked-in water, without more, even at the sole point of ingress and egress, does not subject a premises owner/holder to liability a slip and fall in the water. See, Reed v. Galaxy Holdings, Inc., 394 Ill.App.3d 39 (2009); Branson v. R & L Investment, Inc., 196 Ill.App.3d 1088 (1990); Wilson v. Gorski’s Food Fair, 196 Ill.App.3d 612 (1990); Bernard v. Sears, Roebuck & Co., 166 Ill.App.3d 533 (1988); Lohan v. Walgreens, 140 Ill.App.3d 171 (1986).  Caveat, if the plaintiff can prove that the store recently mopped the water, but some water remained after the mopping, this is a completely different story and liability can possibly be imposed because the water is no longer “natural.”

    #3:  Under the natural accumulation rule, property owners/holders are not required (do not have a duty) to remove the tracks or residue left inside the building by individuals who have walked through natural accumulations outside the building. It is irrelevant whether a natural accumulation remains on the property for an “unreasonable” length of time and operators have no duty to warn of such conditions. Reed v. Galaxy Holdings, Inc., 394 Ill.App.3d 39 (2009).

    #2:  Even the highest degree of care, which is the duty of the common carrier, does not change the fact that common carriers has no duty to clean up natural accumulations of rain, snow or ice.  See, Krywin v. Chicago Transit Authority, 909 N.E.2d 887 (1st Dist. May 21, 2009).

    #1:  If the plaintiff/customer does not specifically know what caused the fall or just assumes it was ice/snow, the plaintiff is out of luck.  Courts have consistently granted and upheld summary judgment in these situations.  In fact, 3 such summary judgment rulings were upheld in the last 6 months.  See, Gonzales v. Malet Development, LLC, 2014 IL App (1st) 131989-U (June 25, 2014); West v. Union Pacific Railroad Co., 2014 IL App (2d) 130962-U (June 9, 2014); Delorey v. Vicorp Restaurants, Inc., 2014 IL App (1st) 131249-U (May 16, 2014).

No matter how bad this winter gets, remember, you are in good hands with the natural accumulation doctrine.