2013 IL App (4th) 130036
FILED
NO. 4-13-0036 October 25, 2013
Carla Bender
IN THE APPELLATE COURT 4th District Appellate
Court, IL
OF ILLINOIS
FOURTH DISTRICT
MITZI O. GREENE, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Champaign County
WOOD RIVER TRUST; TAYLOR REALTY, INC., ) No. 12L14
d/b/a/ WOOD RIVER TRUST; RICHARD W. )
TAYLOR, d/b/a WOOD RIVER TRUST; and RUSSELL )
H. TAYLOR, d/b/a WOOD RIVER TRUST, )
Defendants-Appellees, )
and )
RE/MAX REALTY ASSOCIATES, d/b/a WOOD )
RIVER TRUST; RENEE TAYLOR, d/b/a WOOD ) Honorable
RIVER TRUST; and JASON W. OAKES, ) Michael Q. Jones,
Respondents in Discovery. ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Steigmann and Justice Holder White concurred in the judgment
and opinion.
OPINION
¶1 On February 12, 2010, plaintiff, Mitzi O. Greene, slipped and fell on an icy
walkway near the entrance of a residence she leased from defendants, Wood River Trust; Taylor
Realty, Inc., d/b/a/ Wood River Trust; Richard W. Taylor, d/b/a Wood River Trust; and Russell
H. Taylor, d/b/a Wood River Trust. After plaintiff filed a complaint alleging negligence,
defendants moved to dismiss plaintiff's complaint pursuant to section 2-619 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-619 (West 2010)), arguing plaintiff's negligence claims were
barred by the Snow and Ice Removal Act (Act) ( 745 ILCS 75/1 et. seq. (West 2010)). The trial
court dismissed plaintiff's complaint but allowed plaintiff to amend to allege willful and wanton
misconduct, an exception to the immunities otherwise provided by the Act. Defendants moved
to dismiss plaintiff's first amended complaint pursuant to section 2-615 of the Code (735 ILCS
5/2-619 (West 2010)), which the court granted. In addition, the court allowed plaintiff to further
amend her complaint to allege willful and wanton misconduct. Defendants moved to dismiss
plaintiff's second amended complaint pursuant to section 2-615 of the Code, which the court
granted.
¶2 Plaintiff appeals, arguing the trial court erred in (1) determining that the Act
barred her negligence claims against defendants, (2) dismissing her second amended complaint
because she properly pled a willful and wanton exception to the immunity otherwise provided by
the Act (745 ILCS 75/2 (West 2010)), and (3) denying her request for additional time to locate
individuals to aid in providing factual support for her claims. We affirm in part, reverse in part,
and remand for further proceedings.
¶3 I. BACKGROUND
¶4 On January 23, 2012, plaintiff filed a complaint in negligence alleging that she
slipped and fell near the entrance of a residence she leased from defendants due to the icy
condition of defendants' walkway. Plaintiff alleged several theories of negligence concerning the
walkway, including that defendants negligently failed to (1) provide a safe walkway in violation
of the Premises Liability Act (740 ILCS 130/1 to 5 (West 2010)); (2) maintain and provide a
properly pitched overhang roof; (3) provide properly hung and sized gutters; (4) provide properly
hung and sized downspouts; (5) provide an adequate number of downspouts; (6) allow proper
drainage to occur from the overhang roof onto the walkway; (7) correct or repair the gutters,
downspouts, and overhang; (8) keep the gutters and downspouts "free and clear at all times of
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stored materials"; (9) keep the gutters and downspouts "free and clear at all times of ice"; and
(10) keep the gutters and downspouts "free and clear at all times of mud and refuse." As a
proximate result, plaintiff alleged, defendants' negligence resulted in an unnatural accumulation
of water on a walkway which froze and caused plaintiff to slip and fall, suffering "serious and
permanent injuries to her shoulder."
¶5 On March 2, 2012, defendants filed a motion to dismiss under section 2-619(a)(9)
of the Code, arguing defendants were immune from liability under the Snow and Ice Removal
Act. Defendants attached to their motion a contract, in effect at the time of plaintiff's fall, with
Jason Oakes for snow and ice removal at multiple locations, including the residence plaintiff
leased from defendants. Following a hearing, the trial court granted defendants' motion and
dismissed plaintiff's complaint, finding the negligence claim was barred by the Act. Plaintiff
sought leave to file an amended complaint to allege willful and wanton misconduct, an exception
to the immunities otherwise provided by the Act. The court granted plaintiff's motion.
¶6 On May 22, 2012, plaintiff filed her first amended complaint alleging defendants
engaged in willful and wanton misconduct. Plaintiff's willful and wanton claim reiterated the
negligence claim allegations, adding that defendants acted with "utter indifference to or con-
scious disregard" and "with a reckless disregard for the safety" of plaintiff. Defendants moved to
dismiss plaintiff's first amended complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-
615 (West 2010)), arguing plaintiff's allegations that defendants failed to perform routine
maintenance of gutters and downspouts did not constitute willful and wanton misconduct.
Following a hearing, the trial court granted defendants' motion and dismissed the first amended
complaint. The court allowed plaintiff's motion to further amend her complaint to allege willful
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and wanton misconduct.
¶7 On August 30, 2012, plaintiff filed her second amended complaint. This time,
plaintiff reasserted her original negligence claims in counts I, III, V, and VII, and reiterated her
willful and wanton allegations in counts II, IV, VI, and VIII. Defendants moved to dismiss
plaintiff's second amended complaint pursuant to section 2-615 of the Code, arguing (1) the trial
court had already found plaintiff's negligence claims barred by the Act and (2) plaintiff's
allegations of willful and wanton misconduct were still not sufficient to state a cause of action.
Plaintiff stated that she incorporated her "prior arguments made before the court." The court
granted defendants' motion and dismissed the second amended complaint with prejudice.
¶8 This appeal followed.
¶9 II. ANALYSIS
¶ 10 On appeal, plaintiff argues the trial court erred in determining that the Act barred
her negligence claims against defendants. Specifically, plaintiff argues the Act does not apply
where the unnatural accumulation of ice was caused by defective construction or improper or
insufficient maintenance of the premises, and not by snow and ice removal efforts.
¶ 11 After plaintiff filed her initial complaint alleging negligence, defendants filed a
motion to dismiss under section 2-619(a)(9) of the Code, arguing that plaintiff's complaint was
barred by the Act. Section 2-619 allows for the involuntary dismissal of a cause of action based
on certain defects and defenses, including on the ground "the claim asserted against defendant is
barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS
5/2-619(a)(9) (West 2010). The dismissal of a complaint pursuant to section 2-619(a)(9) is
reviewed de novo. Lacey v. Village of Palatine, 232 Ill. 2d 349, 359, 904 N.E.2d 18, 24 (2009).
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¶ 12 The Snow and Ice Removal Act contains two relevant parts, which state:
"§ 1. 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.
§ 2. 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 75/1, 2
(West 2010).
¶ 13 The Illinois legislature enacted the Snow and Ice Removal Act to provide
immunities and defenses to "owners and others residing in residential units." 745 ILCS 75/1
(West 2010). By shielding residential owners from negligence claims under the Act, the Illinois
legislature sought to encourage the cleaning of snow and ice from sidewalks abutting residences.
745 ILCS 75/1 (West 2010). In interpreting a provision of the Act, as with any statute, our
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primary goal is to ascertain and give effect to the intention of the legislature. Ries v. City of
Chicago, 242 Ill. 2d 205, 215-16, 950 N.E.2d 631, 637 (2011). We seek that intent first from the
plain language used in the statute, and if that language is clear and unambiguous, we are not at
liberty to depart from its plain meaning. Ries, 242 Ill. 2d at 216, 950 N.E.2d at 637. We review
de novo the interpretation of a statute as a question of law. Abruzzo v. City of Park Ridge, 231
Ill. 2d 324, 332, 898 N.E.2d 631, 636 (2008).
¶ 14 Under the common law, a landowner has no duty to remove natural accumulations
of snow or ice (Claimsone v. Professional Property Management, LLC, 2011 IL App (2d)
101115, ¶ 18, 956 N.E.2d 1065), but exceptions have been made where some other act of
negligence contributes to the condition.
"One is generally not liable for injuries caused by natural
accumulations of ice or snow, and there is no [common law] duty
to remove natural accumulations of ice or snow. [Citation.]
However, a [common law] duty may arise on the part of the defen-
dant-premises owner, if the defendant voluntarily undertook the
task of removing natural accumulations of ice or snow and did so
negligently or if the defendant was responsible for an unnatural
accumulation of ice or snow. Liability will be imposed on a defen-
dant where the plaintiff shows an injury that was caused by such an
unnatural accumulation of ice or snow. [Citation.]" Ordman v.
Dacon Management Corp., 261 Ill. App. 3d 275, 279, 633 N.E.2d
1307, 1310 (1994).
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¶ 15 Further, an exception to the common law "no duty" rule is made where "the
accumulation of ice or snow becomes unnatural due to the design and construction of the
premises." McLean v. Rockford Country Club, 352 Ill. App. 3d 229, 233-34, 816 N.E.2d 403,
408 (2004).
"The construction and maintenance of a landowner's property are
matters within the landowner's control. [Citation.] Therefore,
Illinois courts have noted that '[i]t is not imposing an undue burden
on [the landowner] to require him not to add to the difficulties
facing Illinois residents from natural accumulations of ice and
snow by permitting unnatural accumulations due to defective
construction or improper or insufficient maintenance of the pre-
mises.' " McLean, 352 Ill. App. 3d at 234, 816 N.E.2d at 408
(quoting Bloom v. Bistro Restaurant Ltd. Partnership, 304 Ill. App.
3d 707, 711, 710 N.E.2d 121, 123 (1999)).
¶ 16 The Snow and Ice Removal Act was enacted in derogation of the common law.
See Gallagher v. Union Square Condominium Homeowner's Ass'n, 397 Ill. App. 3d 1037, 1043,
922 N.E.2d 1201, 1207 (2010) ("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."). "[A] court cannot construe a statute in derogation of the common law
beyond what the words of the statute expresses [sic] or beyond what is necessarily implied from
what is expressed." Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 69, 809 N.E.2d 1248,
1271 (2004). "Any legislative intent to abrogate the common law must be clearly and plainly
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expressed, and we will not presume from ambiguous language an intent to abrogate the common
law." Heider v. Knautz, 396 Ill. App. 3d 553, 561, 919 N.E.2d 1058, 1065 (2009). 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, 872 N.E.2d 551, 553 (2007). An act in
derogation of the common law must be construed strictly against the entity claiming immunity.
Van Meter v. Darien Park District, 207 Ill. 2d 359, 368, 799 N.E.2d 273, 279 (2003).
¶ 17 Here, the Act provides owners, lessors, occupants, or other persons in charge of
residential property immunity for injuries caused by snow and ice removal efforts, unless their
acts or omissions constitute willful and wanton misconduct. 745 ILCS 75/2 (West 2010). The
legislature intended for such persons to be immune from liability where they negligently remove
or attempt to remove snow or ice from a residential walkway. This represents a clear conflict
with common law negligence claims, where liability may be imposed on an owner for injuries
caused by an owner’s voluntary and negligent removal of ice or snow, causing an unnatural
accumulation. We presume the legislature was familiar with the aforementioned common law
cause of action. See People v. Hickman, 163 Ill. 2d 250, 262, 644 N.E.2d 1147, 1153 (1994) ("it
must be presumed that the legislature acted with knowledge of the prevailing case law"). It is
apparent then the Act was intended to modify common law liability for owners and others
residing in residential units who negligently remove or attempt to remove snow or ice from
sidewalks abutting their property. 745 ILCS 75/2 (West 2010).
¶ 18 Here, plaintiff alleges her injuries were not the result of any efforts to remove
snow or ice from a walkway, but instead resulted from an icy condition caused by the defective
condition of the building adjacent to the walkway. Therefore, the Act does not apply to bar her
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negligence claim. The plain language of the Act indicates it does not apply to negligence actions
for injuries caused by defective construction or improper or insufficient maintenance of the
premises. Instead, the Act applies only to immunize an owner's negligent efforts to remove snow
and ice from residential sidewalks.
¶ 19 Were we to hold that the Act also applied where an unnatural accumulation of ice
was caused by defective construction or improper or insufficient maintenance of the premises, we
would be repealing a common law remedy by implication, which is not favored. See Callahan,
374 Ill. App. 3d at 634, 872 N.E.2d at 553. Accordingly, we conclude that the plain language of
the Act does not provide immunity for injuries if the unnatural accumulation of ice was caused
by defective construction or improper or insufficient maintenance of the premises, and not snow
and ice removal efforts.
¶ 20 Defendants cite Pikovsky v. 8440-8460 North Skokie Blvd. Condominium Ass'n,
Inc., 2011 IL App (1st) 103742, 964 N.E.2d 124, and Gallagher in support of their argument that
the Act applies. However, these cases are clearly distinguishable. The plaintiffs in Pikovsky and
Gallagher alleged they fell on unnatural accumulations caused by snow removal efforts, and not
unnatural accumulations caused by defective construction or improper or insufficient mainte-
nance of the premises.
¶ 21 In Pikovsky, the defendants entered into contracts for snow removal that included
a parking lot and sidewalk, but did not include a rear entrance sidewalk. Pikovsky, 2011 IL App
(1st) 103742, ¶ 3, 964 N.E.2d 124. The plaintiff fell due to icy snow mounds formed by snow
that was plowed from the parking lot onto the rear entrance sidewalk. Pikovsky, 2011 IL App
(1st) 103742, ¶ 4, 964 N.E.2d 124. The plaintiff filed a negligence complaint alleging the
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defendants failed to exercise reasonable care by creating an unsafe and dangerous condition of
unnatural accumulation of snow and ice on the rear entrance sidewalk. Pikovsky, 2011 IL App
(1st) 103742, ¶ 5, 964 N.E.2d 124. The appellate court found the Act barred the plaintiff's
negligence claim where the contracting for snow and ice removal constituted "a conscious effort
to clear snow and ice," and the defendants' failure to remove the snow and ice mounds from the
rear entrance sidewalk was an omission in their overall snow removal efforts. Pikovsky, 2011 IL
App (1st) 103742, ¶ 13, 964 N.E.2d 124. We note that Pikovsky is factually dissimilar to the
present case as the unnatural accumulation of snow and ice in Pikovsky was allegedly due to the
defendants' snow removal efforts. Such allegations of snow removal efforts are notably absent
here. Further, to the extent Pikovsky holds that an owner's contracting for snow and ice removal
equates to snow and ice removal efforts under the Act, we decline to adopt this holding.
Pikovsky, 2011 IL App (1st) 103742, ¶ 13, 964 N.E.2d 124. We conclude the plain language of
the statute so constrains us.
¶ 22 In Gallagher, the defendants plowed snow from the plaintiff's driveway causing
unnatural accumulations of snow and ice. Gallagher, 397 Ill. App. 3d at 1039, 922 N.E.2d at
1204. The plaintiff fell while walking on the plowed path on his driveway, sustaining serious
injuries. Gallagher, 397 Ill. App. 3d at 1039, 922 N.E.2d at 1204. The plaintiff alleged that the
defendants were negligent in creating an unnatural accumulation of snow and ice on the
plaintiff's driveway. Gallagher, 397 Ill. App. 3d at 1039, 922 N.E.2d at 1204. However, the
appellate court found the plain language of the Act did not provide immunity for injuries
sustained on a driveway; it only applied to snow removal efforts on sidewalks. Gallagher, 397
Ill. App. 3d at 1047, 922 N.E.2d at 1210.
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¶ 23 In sum, we conclude that the plain language of the Act does not provide immunity
for injuries if the unnatural accumulation of ice was caused by defective construction or improper
or insufficient maintenance of the premises, and not by snow and ice removal efforts.
Accordingly, the trial court erred when it dismissed plaintiff's second amended complaint on the
basis that her negligence allegations were barred by the Act.
¶ 24 Plaintiff next argues the trial court erred by dismissing counts II, IV, VI, and VIII
of her second amended complaint alleging willful and wanton misconduct. To plead willful and
wanton misconduct, a plaintiff must allege duty, breach of duty, proximate cause, and "either a
deliberate intention to harm or a conscious disregard for the plaintiff's welfare." Doe-3 v.
McLean County Unit Dist. No. 5 Bd. of Directors, 2012 IL 112479, ¶ 19, 973 N.E.2d 880. Here,
the trial court granted defendants' motion to dismiss after finding plaintiff's second amended
complaint failed to sufficiently allege defendants' conduct was willful and wanton. We agree.
The factual allegations made by plaintiff do not demonstrate "either a deliberate intention to
harm or a conscious disregard for the plaintiff's welfare" as outlined by our supreme court.
Doe-3, 2012 IL 112479, ¶ 19, 973 N.E.2d 880. Thus, the trial court did not err by dismissing
counts II, IV, VI, and VIII of plaintiff's second amended complaint.
¶ 25 Plaintiff next argues the trial court erred by denying her request for additional
time to locate individuals to aid in providing factual support for her claims. "A trial court is
given great latitude in determining the scope of discovery, and discovery orders will not be
disturbed absent an abuse of discretion." Manns v. Briell, 349 Ill. App. 3d 358, 361, 811 N.E.2d
349, 352 (2004). Plaintiff filed her initial complaint in this case on January 23, 2012, and the
trial court dismissed her second amended complaint on December 21, 2012. The trial court
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provided claimant approximately 11 months to locate individuals for purposes of this case and,
thus, did not abuse its discretion by denying her request for additional time.
¶ 26 We express no opinion regarding the factual sufficiency of the negligence counts
(counts I, III, V, and VII) of plaintiff's second amended complaint. Although the trial court
dismissed the negligence counts in plaintiff's second amended complaint based on defendants'
section 2-615 motion to dismiss, the dismissal was actually pursuant to section 2-619. The case
is ordered remanded to the trial court with directions that counts I, III, V, and VII of plaintiff's
second amended complaint be reinstated and that defendants answer or otherwise plead to these
counts.
¶ 27 III. CONCLUSION
¶ 28 For the foregoing reasons, we affirm the trial court's (1) dismissal of plaintiff's
willful and wanton claims and (2) denial of plaintiff's request for additional time for discovery.
However, we reverse the trial court's dismissal of plaintiff's negligence claims based on the Snow
and Ice Removal Act, and we remand with directions.
¶ 29 Affirmed in part and reversed in part; cause remanded with directions.
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