Docket No. 108888.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
MARIANNA KRYWIN, Appellant, v. THE CHICAGO TRANSIT
AUTHORITY, Appellee.
Opinion filed July 15, 2010.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Thomas, Karmeier, and
Burke concurred in the judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justice
Kilbride.
Justice Freeman also dissented, with opinion, upon denial of
rehearing, joined by Justice Kilbride.
OPINION
In June 2005, plaintiff, Marianna Krywin, filed a two-count
complaint in the circuit court of Cook County against defendant,
Chicago Transit Authority (CTA), stemming from an injury she
suffered while alighting from one of the CTA’s trains onto the
southbound platform at Sheridan Road in Chicago. A jury rendered
a verdict in plaintiff’s favor. The appellate court reversed. 391 Ill.
App. 3d 663.
BACKGROUND
Count I of plaintiff’s amended complaint alleged that on January
13, 2005, she was riding the CTA’s red line train. The train stopped
at an elevated train station. As plaintiff exited the train, she slipped
on snow and water on the platform and fell, injuring her left leg.
Plaintiff alleged that the CTA had a duty to exercise ordinary care in
the operation, supervision, and maintenance of the area of ingress and
egress where plaintiff fell and that the CTA negligently failed in its
duty. In count II, plaintiff alleged that the CTA had a duty to exercise
the highest degree of care in the operation of its trains and in the
maintenance of the train stations and alleged that the CTA was guilty
of willful and wanton conduct in failing to fulfill that duty.
The cause proceeded to a jury trial in October 2007. Darren Hill,
security customer assistance controller for the CTA, testified that he
received a call from CTA personnel regarding plaintiff’s injury. Hill
prepared a report of the incident. The report states that plaintiff
slipped and fell on the southbound Sheridan Road platform and that
she was transported to the hospital by fire emergency personnel.
Anthony Morales, a rail maintenance worker for the CTA,
testified that his duties include maintaining the train platforms. He
removes any ice or snow from the platform and then spreads sand
across the entire platform. In January 2005, the Sheridan Road station
was one of the stations to which he was assigned. He did not recall
the weather conditions on the date of the accident or whether he
removed any snow or ice from the southbound platform that day.
However, based upon his routine, he would have been to the Sheridan
Road station that morning, unless there was a bad storm that would
have delayed him in getting to the Sheridan Road station. There is a
small canopy at that station, which covers less than half of the
platform.
Daniel Ivankovich, the orthopedic surgeon who treated plaintiff’s
injury, testified by evidence deposition. When he first saw plaintiff in
the emergency room, she told him that she had slipped and fallen on
ice. Plaintiff had a swelling and deformity of her lower extremity and
the left ankle. She had a fracture of the tibia and fibula bones in her
left leg. She was in a great deal of pain when Dr. Ivankovich first saw
her. In explaining how plaintiff fractured her leg, Dr. Ivankovich
stated that the tibia and fibula bones distally create the ankle joint.
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There is a very complex series of ligaments in that area. Plaintiff has
a condition called osteopenia, which is thinning of the bones. The
ligaments were much stronger than the bone and she ended up with
a “pilon, a spiral fracture, which more than likely meant that she
planted her foot, rotated and the bone gave. The force was sufficient
that the ligaments didn’t tear, but the actual bone fractured.” Dr.
Ivankovich performed surgery to repair the fracture. Plaintiff was
hospitalized for nearly a month.
The discovery deposition of Ruben Bonner was read to the jury
in his absence. Bonner testified that he is a rapid transit operator for
the CTA and was operating the red line train on the date of the
accident. After passengers got on and off the train at the Sheridan
Road station, someone said a woman had fallen. He left the train and
observed plaintiff on her hands and knees on the platform. He did not
recall which car plaintiff had exited or whether there was a canopy
over the area of the platform where she fell. There were eight cars on
the train that day and plaintiff was closer to the rear of the train.
Bonner did not recall whether it was snowing when he pulled the train
into the station, but it had snowed previously and it was cold. The
surface of the platform was wet and icy. He did not observe any snow
on it or any sand or salt.
Patricia Majors was the next witness. At the time of the accident,
she was a student at DePaul University. She rode the red line train
frequently to get to work and school and was familiar with the
Sheridan Road station. The southbound platform has a very small
canopy on the north end of the platform. On the date of the accident,
she was waiting at the southbound platform to get on the train. It was
raining and very cold. The entire platform was icy. She observed
plaintiff exit the train and, as soon as she stepped off the train, she fell
to the ground. Majors and another person gave plaintiff their coats, as
it was raining and plaintiff was lying on snow and ice. Majors waited
with plaintiff until the paramedics arrived. Majors had ridden the train
the two days before the accident. During that time, she was on the
platform from 5 to 15 minutes at a time waiting for the train. The
weather had been rainy and cold, and it was icy and slushy on those
days. The sidewalks were filled with slush that was over the top of
her shoes. The southbound platform where plaintiff fell was icy that
day. There was no sand or salt on the platform and there was no room
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to step around the ice. The ice was about one-tenth of an inch thick.
Based on the thickness of the ice, it did not appear to Majors that any
work had been done with respect to the icy conditions.
Plaintiff testified through an interpreter. She is 76 years old and
came to Chicago from Poland. She formerly worked as a nurse. On
the date of the accident, she exited the train, putting one foot down
and then the other one and it was slippery and she “went backwards.”
Prior to that day, she had no trouble walking and did not use any
walking aid. That morning, there was a little bit of snow falling and
there was a lot of snow on the platform. When she exited the train,
she made one step with her right foot into the snow and then she
stepped with her left foot and “then I, you know, I went–I had fallen
backwards and then I was screaming from pain.” She was unable to
get up and then, later, two men appeared with a stretcher.
The parties stipulated to the testimony of Theresa Williams, a
customer service agent for the CTA. She was assigned to the Sheridan
Road station on the date of the accident. She prepared two reports for
the CTA as the result of plaintiff’s accident. Williams did not recall
the weather conditions on the day of the accident or the previous day.
Nor did she recall the condition of the platform on those days. She
would also testify that the CTA red line train ran 24 hours a day, 7
days a week in January 2005. Williams’ reports were read to the jury.
The reports identified “sleet” and “foggy” as the weather conditions
on the day of the accident and “wet” as the condition of the area
where plaintiff fell. Williams indicated that plaintiff was exiting the
fifth car of the train when she slipped and fell. Williams responded to
the customer assistance bell at 9:55 a.m. on the day of the accident.
When Williams arrived at the platform, plaintiff was complaining of
her leg hurting and possibly broken.
The trial court read an admission by the CTA to the jury, which
was based upon the CTA’s answer to a request to admit from
plaintiff. Prior to reading the admission, the court admonished the
jury that the admission was not to be considered evidence of
negligence, but only as circumstantial evidence of what may or may
not have happened on the date of the accident. The admission was
that on and before the date of the accident, it was the CTA’s policy to
spread sand on the train platforms after removal of snow and ice.
At the close of plaintiff’s evidence, the CTA presented a motion
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for directed verdict. The motion alleged that, as a matter of law, the
CTA had no duty to remove a natural accumulation of ice and snow
and no duty to warn of such an accumulation. The CTA further
argued that plaintiff had presented no evidence that there was any
unnatural accumulation of ice or snow on the platform. The CTA
argued that there was no evidence that it had maintained the platform
in a negligent or reckless manner. Thus, according to the CTA,
plaintiff failed to make a prima facie case of either negligence or
willful and wanton conduct.
Plaintiff’s attorney argued that the CTA had a duty to remove
natural accumulations of ice from its platforms to provide a safe
method of ingress and egress from its trains. Counsel argued that,
regardless, there was evidence that there was some snow removal by
the CTA and that it was done in a negligent manner. Counsel referred
to the testimony from Majors that the sidewalks where Majors walked
were filled with slush, but the train platform was a sheet of ice.
The trial court granted the motion for directed verdict in part,
finding that the CTA did not have a duty to remove natural
accumulations of snow or ice, nor did it have any duty to warn of
such accumulations. The court also ruled that the ice on the platform
resulted from a natural accumulation. The court found that the CTA
did have a duty to provide a safe place for plaintiff to alight and that
this duty existed regardless of the reason for the unsafe area. Thus,
the court noted the only issue remaining, as to both counts of the
complaint, was whether the CTA failed to provide plaintiff with a
safe place to alight. In answer to a question from plaintiff’s counsel
as to whether he could still argue that the CTA negligently removed
snow from the platform, the trial court stated that even if the snow
were improperly removed, the ice beneath the snow was a natural
accumulation and the CTA had no duty to remove the ice from the
platform.
The sole defense witness was Diane Senechal, who testified that
she was on the Sheridan Road platform at the time of plaintiff’s
accident. She saw that plaintiff had fallen, although she did not see
her fall. It was snowing at the time. Senechal held her umbrella over
plaintiff to shield her from the snow. It had been snowing or sleeting
that morning. The surface of the platform was wet and slushy, but
there was not much accumulation because most of the moisture
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drained through the “slats” in the platform. The precipitation on the
streets was much deeper due to the lack of drainage. She saw
someone with a broom either at the other end of the southbound
platform or on the northbound platform. The person was not
sweeping, just standing there. Senechal did not notice any debris on
the platform or any defects in it. She did not recall whether there was
any sand on the platform.
The CTA renewed its motion for directed verdict following the
close of all evidence, but the trial court denied it. In discussions with
counsel, the trial court noted again that the issue of removal of the
natural accumulation of ice or snow on the platform was not an issue
in the case and plaintiff would not be allowed to argue that. The court
stated, “I think what [plaintiff’s counsel] is going to say is, you
should have let the plaintiff off some place that was safe. Regardless
of the reason, it was not safe. The evidence–the jury can believe Ms.
Majors, whose testimony basically was, it was a sheet of ice. So that’s
a fact question for the jury to decide.” Referring to the canopy, the
court further noted, “Apparently, there was a location on the platform
that was not covered with ice. I don’t know that the–what the
conductor could have done or could not have done.”
The trial court instructed the jury. The court did not inform the
jury that the CTA had no duty to remove any accumulation of ice on
its platform. Rather, the court instructed the jury that in selecting a
place for the plaintiff to alight from the train, it was the duty of the
CTA to “exercise the highest degree of care consistent with the mode
of conveyance used and practical operation of its business as a
common carrier by train.”
Following deliberations, the jury returned a general verdict in
plaintiff’s favor in the amount of $372,141. The trial court denied the
CTA’s posttrial motion.
The CTA appealed and the appellate court reversed. On appeal,
the CTA argued that the trial court erred in not granting its motion for
directed verdict in its entirety because plaintiff failed to prove that the
CTA owed her any duty to remove the natural accumulation of ice
and snow on the platform. The court noted the primary issue in the
appeal was whether the CTA breached its duty to provide plaintiff
with a safe place to alight from the train when it stopped the train in
front of a natural accumulation of ice and snow. The court
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acknowledged that, as a common carrier, the CTA owed to its
passengers the highest degree of care consistent with the practical
operation of its conveyances. A common carrier must furnish its
passengers with a safe place to alight from the conveyance and an
opportunity to reach a place of safety. The court also noted the rule
that a property owner does not have a duty to remove natural
accumulations of snow, ice, or water from its property. After
reviewing the case law, the court determined that the natural
accumulation rule prevails over the CTA’s duty to provide its
passengers with a safe place to alight. The appellate court rejected
plaintiff’s argument that the CTA could have allowed plaintiff to exit
the train underneath the small canopy that covered part of the
platform. The court found that the consequences of imposing a duty
on the CTA to inspect every platform every time a train was to
discharge or take on passengers would bring the transit system to a
standstill. The court thus declined to impose such a duty. 391 Ill. App.
3d 663. This court granted plaintiff’s petition for leave to appeal. 210
Ill. 2d R. 315. We also allowed the Northeast Illinois Regional
Commuter Railroad Corporation (Metra), the Illinois Trial Lawyers
Association, and the Illinois Association of Defense Counsel to file
briefs amicus curiae.
ANALYSIS
Plaintiff makes three arguments in this appeal: (1) the natural
accumulation rule should not prevail over a common carrier’s duty to
provide its passengers with a safe place to alight; (2) the appellate
court erred in impermissibly expanding the natural accumulation rule
to relieve the CTA of the duty to provide a safe place to alight, where
the trial court ruled and the jury found that the CTA could have
fulfilled its duty to provide a safe place to alight without engaging in
ice removal; and (3) the appellate court erred in finding that the
natural accumulation rule relieved the CTA of its duty to refrain from
willful and wanton conduct.
I. Standard of Review
The appellate court found that the trial court erred in failing to
grant the CTA’s motion for directed verdict in its entirety. A motion
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for directed verdict will not be granted unless all of the evidence so
overwhelmingly favors the movant that no contrary verdict based on
that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co.,
37 Ill. 2d 494, 510 (1967). On review, all of the evidence must be
construed in the light most favorable to the nonmoving party. Thacker
v. UNR Industries, Inc., 151 Ill. 2d 343, 353-54 (1992). The standard
of review of an order disposing of a motion for directed verdict is de
novo. Evans v. Shannon, 201 Ill. 2d 424, 427 (2002).
To recover damages based upon negligence, a plaintiff must prove
that the defendant owed a duty to the plaintiff, that the defendant
breached that duty, and that the breach was the proximate cause of the
plaintiff’s injury. First Springfield Bank & Trust v. Galman, 188 Ill.
2d 252, 256 (1999). The term “proximate cause” contains two
elements: cause in fact and legal cause. Lee v. Chicago Transit
Authority, 152 Ill. 2d 432, 455 (1992). Cause in fact exists where
there is a reasonable certainty that a defendant’s acts caused the
plaintiff’s injury. Young v. Bryco Arms, 213 Ill. 2d 433, 446 (2004),
quoting Lee, 152 Ill. 2d at 455. The relevant question is whether the
defendant’s conduct is a material element and a substantial factor in
bringing about the injury. Conduct is a material element and a
substantial factor if, absent the conduct, the injury would not have
occurred. Abrams v. City of Chicago, 211 Ill. 2d 251, 258 (2004).
Whether a duty exists is a question of law for the court to decide.
Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 227 (1996). The
standard of review on questions of law is de novo. Forsythe v. Clark
USA, Inc., 224 Ill. 2d 274, 280 (2007). The touchstone of the duty
analysis is to ask whether the plaintiff and defendant stood in such a
relationship to one another that the law imposes on the defendant an
obligation of reasonable conduct for the benefit of the plaintiff. The
inquiry involves four factors: (1) the reasonable foreseeability of the
injury; (2) the likelihood of the injury; (3) the magnitude of the
burden of guarding against the injury; and (4) the consequences of
placing the burden on the defendant. Marshall v. Burger King Corp.,
222 Ill. 2d 422, 436-37 (2006). Questions regarding a breach of a duty
and proximate cause of the injury are reserved for the trier of fact.
Jones v. Chicago & Northwestern Transportation Co., 206 Ill. App.
3d 136, 139 (1990).
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II. The Natural Accumulation Rule
This court has long held that a common carrier has a duty to its
passengers to exercise the highest degree of care, not only to carry
them safely to their destinations, but to provide them with a
reasonable opportunity to leave the conveyance safely. See Chicago
Terminal Transfer R.R. Co. v. Schmelling, 197 Ill. 619, 629 (1902);
see also Sheffer v. Springfield Airport Authority, 261 Ill. App. 3d 151,
154 (1994) (due to the unique control a common carrier has over its
passengers’ safety, it owes those passengers the highest duty of care
consistent with the practical operation of its conveyances). There is
no dispute here that the CTA is a common carrier and that plaintiff
was its passenger at the time of her injury. Thus, the CTA had a duty
to provide plaintiff with a safe place to alight from its train.
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. Fillpot v. Midway Airlines, Inc., 261
Ill. App. 3d 237, 243 (1994). This rule has been applied to common
carriers. In McElligott v. Illinois Central R.R. Co., 37 Ill. 2d 459
(1967), the plaintiff’s decedent was killed when the car in which he
and the plaintiff were riding struck the defendant’s train. The
evidence showed that there had been snow and ice on the ground for
at least a week prior to the accident and that the street on which the
plaintiff was traveling was slippery and had not been treated with
cinders or salt. The car slid when the plaintiff applied the brakes and
it collided with the train. The defendant’s right-of-way extended 50
feet on either side of its tracks. The plaintiff’s principal contention at
trial was that the defendant was under a duty to maintain the street
within its entire right-of-way for the safety of motorists and that the
defendant’s failure to place cinders or salt on the right-of-way that
extended into the street made it unsafe and caused the plaintiff’s
accident. In support of her case, plaintiff cited an Illinois Commerce
Commission rule and a statute that required railroads to construct and
maintain their crossings and approaches in a safe condition. This
court found that the duty was limited to the defendant’s crossings and
approaches, which extended only four feet from the outer rails of the
crossing, as these were the only areas which the defendant had
constructed. The evidence showed the plaintiff’s car had slid on the
street within the defendant’s right-of-way. Noting that the
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municipality did not have a duty to remove natural accumulations of
ice and snow from its streets, this court held that the defendant had no
greater duty than a municipality to remove or otherwise offset the
effect of natural accumulations of snow and ice from that part of its
right-of-way not consisting of its crossings and approaches.
McElligott, 37 Ill. 2d at 469.
In Sheffer, 261 Ill. App. 3d 151, the plaintiff was a passenger on
one of the defendant’s planes. After the plane landed, the passengers
disembarked and began walking across the tarmac to the airport
terminal. The plaintiff slipped on a large patch of ice and fell, injuring
herself. She sued the airport authority and the airline. A jury rendered
a verdict in her favor. The appellate court reversed. Recognizing a
common carrier’s heightened duty of care, the court nonetheless held
that the defendant had no duty to remove the natural accumulation of
ice on which the plaintiff fell, nor any duty to warn of the existence
of the ice. Sheffer, 261 Ill. App. 3d at 154.
The plaintiff in Serritos v. Chicago Transit Authority, 153 Ill.
App. 3d 265 (1987), slipped and fell on the steps of one of the
defendant’s buses. The day of the accident was snowy and the steps
of the bus were covered in slush. In her complaint, the plaintiff
alleged that the defendant had negligently failed to remove ice and
snow from the steps of the bus and had failed to warn her of the
slippery conditions. The trial court granted summary judgment to the
defendant, finding no duty to remove the slush from the steps. The
appellate court affirmed. The court noted that, even with a common
carrier’s higher duty of care, it would be impractical to impose a duty
on the defendant to keep the steps of its buses clear of slush and snow
tracked in by its patrons. Imposing such a duty would bring the
transportation system to a standstill. Serritos, 153 Ill. App. 3d at 271-
72.
Likewise, in Shoemaker v. Rush-Presbyterian-St. Luke’s Medical
Center, 187 Ill. App. 3d 1040 (1989), the appellate court held that the
defendant was not liable when the plaintiff stepped off an elevator
and fell on the floor where rainwater had been tracked in by patrons.
The court found that, despite the defendant’s highest duty of care to
provide the plaintiff with a safe place to alight from the elevator (a
common carrier), the rainwater was a natural accumulation which the
defendant had no duty to remove or warn against. Shoemaker, 187 Ill.
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App. 3d at 1045.
In Jones v. Chicago Transit Authority, 206 Ill. App. 3d 736
(1990), the plaintiff slipped on the wet steps of the defendant’s bus
and fell. The defendant moved for summary judgment, arguing it had
no duty to remove natural accumulations of rain water from the steps
of its buses. The plaintiff responded by arguing that the defendant had
a duty to purchase buses equipped with a drainage device which
would allow water to flow onto the street. The trial court granted
summary judgment to the defendant. The appellate court affirmed,
noting that, while the likelihood of injury is great, even greater is the
magnitude of the burden of guarding against it and the consequences
of imposing that burden on the defendant. The court held it would be
impractical to require the defendant to replace or retrofit all its buses
with a drainage system. Such a requirement would not be consistent
with the practical operation of the defendant’s bus service. Jones, 206
Ill. App. 3d at 739.
Plaintiff argues that the natural accumulation rule should not be
applied to the case at bar. She contends the rationale underlying the
natural accumulation rule is that it would place an unfair burden on
a municipality to remove ice or snow from its sidewalks presented by
an ongoing foul weather storm throughout an entire city. She argues
the evidence showed that there was no ongoing storm in Chicago the
day of plaintiff’s accident, but that the ice on the platform had been
there continuously for three days and that nothing had been done to
remedy the condition, although the CTA could have easily done so.
In Graham v. City of Chicago, 346 Ill. 638 (1931), this court
stated that the reason for the natural accumulation rule is that it would
be unreasonable to require a city to expend funds and perform the
labor necessary to keep its walks reasonably free from ice and snow
during the winter months. Graham, 346 Ill. at 643. We note that the
general rule that property owners have no duty to remove natural
accumulations of ice or snow from their property has been applied
without regard to any ongoing precipitation (see Sheffer, 261 Ill. App.
3d at 152 (the weather was “bright and sunny” at the time the plaintiff
fell on the ice)) or the length of time the natural accumulation has
existed (Frederick v. Professional Truck Driver Training School,
Inc., 328 Ill. App. 3d 472, 478 (2002) (there is no exception to natural
accumulation rule based on the passage of time)). However, even
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were we to find that the absence of an ongoing storm had some effect
on the CTA’s duty, we would find that the evidence was conflicting
in this regard. Patricia Majors testified that on the day of the accident,
as well as during the two days prior thereto, the weather had been
rainy and cold. She stated that the sidewalks were filled with slush.
The platform where plaintiff fell was also covered with ice during the
times Majors was on the platform during those two days. Theresa
Williams, customer service agent for the CTA, identified the weather
conditions on the day of the accident as sleet and foggy. Defense
witness Diane Senechal testified that it had been sleeting on the
morning of the accident. She held her umbrella over plaintiff after she
fell to protect her from the falling snow. The evidence thus
contradicts plaintiff’s claim that there was no evidence of ongoing
adverse weather.
Plaintiff cites Wasserman v. City of Chicago, 190 Ill. App. 3d
1064 (1989), as an example of what she terms a “much sounder way”
to decide whether a common carrier should receive the benefit of the
natural accumulation rule. In Wasserman, the plaintiff sued the City
and the CTA. She was a passenger on one of the CTA’s buses. Ice
and snow covered the ground. At the place where the plaintiff got off
the bus, the sidewalk was covered in ice and snow. Although the
streets had been cleared of snow, there were deep piles of snow at the
place where the bus stopped and there was no place to walk between
them. The plaintiff fell as she took a step away from the bus. The trial
court granted summary judgment to the CTA. On appeal, the plaintiff
argued that the CTA breached its duty to ensure that the bus stopped
at a place where it was safe for her to exit the bus. The appellate court
noted that the CTA, as a common carrier, had a heightened duty of
care to its passengers and that this duty continues until passengers
have had a reasonable opportunity to reach a place of safety. The
court observed that the CTA had failed to provide any evidence that
it was impossible to stop further away from the snow piles or at some
other point along the street. Thus, a question of fact existed as to
whether the CTA had breached its duty to provide the plaintiff with
a safe place to alight from the bus. Wasserman, 190 Ill. App. 3d at
1067.
We note that, although the CTA in Wasserman argued that the
snow was a natural accumulation, the appellate court did not rest its
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ruling on that ground. The issue there was solely whether the CTA
had breached its duty to provide the plaintiff with a safe place to
alight. The fact that the streets had been cleared and that there were
deep piles of snow suggests, if anything, that the snow piles were an
unnatural accumulation. In any event, it is obvious that a bus driver
has a much better opportunity to determine the best place to let his or
her passengers off the bus than does a train operator on an eight-car
train whose only option is to discharge passengers on a platform.
Based upon Wasserman, plaintiff argues that a jury is fully capable of
deciding whether, under a specific set of facts, a common carrier
should be held liable for failing to provide a safe place to alight or,
given the conditions of the day, the common carrier fulfilled that
duty. We do not disagree with plaintiff that, under appropriate
circumstances, the question of whether a common carrier breached its
duty to provide a safe place to alight is a question of fact for the jury
to decide. In Wasserman, the appellate court determined that a
question of fact existed and that summary judgment should not have
been granted. Such is not the case here, however.
We conclude that the natural accumulation rule applies in this
case and that the CTA had no duty to remove the natural
accumulation of ice and snow from its platform, nor any duty to warn
of the existence of such natural accumulation. As there was no
evidence that the ice on the platform where plaintiff fell was anything
other than a natural accumulation, we find that the trial court did not
err in granting the CTA’s motion for directed verdict on this basis.
In so holding, we recognize the dangers posed by natural
accumulations of snow and ice. The absence of a duty to remove them
“does not rest upon the notion that the conditions presented by such
accumulations are safe. To the contrary, the hazards presented have
always been acknowledged, but the imposition of an obligation to
remedy those conditions would be so unreasonable and impractical
as to negate the imposition of a legal duty to do so.” Trevino v. Flash
Cab Co., 272 Ill. App. 3d 1022, 1029-30 (1995).
III. Application of Natural Accumulation Rule
Plaintiff next argues that even if the natural accumulation rule is
applied to this case, the jury found that the CTA could have allowed
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plaintiff to leave its train at a place on the platform that was not
covered in snow or ice. Thus, she argues, the natural accumulation
rule does not relieve the CTA of its duty to provide plaintiff with a
safe place to alight. She argues that there is no evidence in the record
to support the appellate court’s determination that requiring the CTA
to provide a safe place to alight without engaging in snow removal
would impose an unreasonable burden on the CTA and would bring
the transit system to a halt. She argues that the CTA never introduced
any evidence as to how it would have been inconsistent with the
practical operation of the CTA’s train to provide plaintiff with a safe
place to alight without engaging in snow and ice removal. Plaintiff
refers to the testimony that a canopy covered part of the platform.
Patricia Majors testified that the canopy was “very small.” Anthony
Morales testified that the canopy covered less than half of the
platform. Nonetheless, plaintiff believes that the train operator could
have let plaintiff off the train underneath the canopy. She faults the
CTA for failing to produce evidence that it would not have been
feasible to allow plaintiff to exit the train under the canopy. In
response, the CTA argues that it was plaintiff’s burden to show that
the CTA could have allowed plaintiff to alight on a safer part of the
platform and thereby breached its duty to provide her with a safe
place to alight from the train.
The burden to prove all the elements of a negligence claim
remains on the plaintiff throughout the proceedings. It is not the
defendant’s burden to disprove negligence. Blue v. Environmental
Engineering, Inc., 215 Ill. 2d 78, 98 (2005).The trial court ruled that
the CTA had no duty to remove snow or ice from the platform. Thus,
it was plaintiff’s burden to prove that the CTA could have fulfilled its
duty to plaintiff in another way. Plaintiff failed to do so. Plaintiff
presented no evidence that it was feasible or even possible to
discharge all passengers under the canopy or in some other manner
that would have provided passengers with a safe place to alight.
Plaintiff cannot escape her burden of proof on the issue of breach of
duty by attempting to shift that burden onto the CTA. Contrary to
plaintiff’s contention, she did not prove that the CTA breached its
duty to her to provide a safe place to alight.
Further, plaintiff failed to prove that the last two factors in the
duty analysis require the imposition of a duty on the CTA. Plaintiff
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argues that the magnitude of the burden of guarding against the injury
was minimal because the evidence showed the danger did not arise
from an ongoing ice storm, but from a three-day-old sheet of ice. We
have already rejected plaintiff’s characterization of the evidence
concerning the weather conditions existing both at the time plaintiff
fell and for the two days preceding the accident. Further, we agree
with the appellate court that it would be impractical to place a burden
on the CTA to evaluate its train platforms each time a trains pulls in
to determine which portion of each platform has the least
accumulation of snow or ice. Plaintiff complains that the record
contains no evidence supporting that conclusion. However, we may
take judicial notice of the magnitude of the CTA’s operations. See
Fujimura v. Chicago Transit Authority, 67 Ill. 2d 506, 510 (1977).
We also note that Theresa Williams of the CTA testified that, at the
time of plaintiff’s accident, the CTA’s red line train ran 24 hours a
day, 7 days a week. Thus, the appellate court did not err in finding
that imposing such a burden on the CTA would be “overwhelmingly
detrimental to the efficient performance of the transit system.” 391 Ill.
App. 3d at 671. Accordingly, we find that the trial court should have
directed a verdict in favor of the CTA on the issue of its alleged duty
to provide plaintiff with a safe place to alight.
IV. Willful and Wanton Conduct
Plaintiff next argues that the appellate court erred in finding that
the natural accumulation rule relieved the CTA of the duty to refrain
from willful and wanton conduct. The appellate court did not
separately address the willful and wanton conduct issue. Instead, it
noted that plaintiff must prove that a duty exists to recover for
negligence or for willful and wanton conduct and that, as a matter of
law, no such duty was shown. Plaintiff argues that whether a
particular act or omission constitutes willful and wanton conduct is
a jury question. She argues that the evidence showed the CTA knew
of the dangerous icy condition of the platform where plaintiff fell for
at least two days prior to the accident and it failed to take any
precautions to provide plaintiff with a safe place to alight. Plaintiff
points to Patricia Majors’ testimony concerning the existence of the
ice for the two days prior to the accident and the evidence that the
CTA had various employees whose job was to check the platforms
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for safety, including the presence of ice and snow, and remove it and
spread sand. Plaintiff notes Majors’ testimony that she did not see any
sand on the platform prior to or at the time of plaintiff’s fall. Thus,
according to plaintiff, the CTA did nothing at all to provide plaintiff
with a safe place to alight despite its knowledge of the ice on the
platform.
There is no separate and independent tort of willful and wanton
conduct. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274 (1994). It
is regarded as an aggravated form of negligence. Sparks v. Starks, 367
Ill. App. 3d 834, 837 (2006). To recover damages based upon a
defendant’s alleged negligence involving willful and wanton conduct,
the plaintiff must allege and prove that the defendant owed a duty to
the plaintiff, that the defendant breached the duty, and that the breach
was the proximate cause of the plaintiff’s injury. Abrams, 211 Ill. 2d
at 257. The question of whether a duty exists is a question of law to
be decided by the court. Rhodes, 172 Ill. 2d at 227.
Plaintiff rests her argument on the alleged failure of the CTA to
remove ice and snow from the platform where plaintiff fell and to
spread sand on the platform. As we have held, however, the CTA had
no duty to remove natural accumulations of ice or snow from the
platform, nor did it have a duty to warn of those conditions.
Accordingly, the trial court should have directed a verdict in favor of
the CTA on the issue of alleged willful and wanton conduct.
CONCLUSION
We hold that the natural accumulation rule applies in this case and
that the CTA had no duty to remove natural accumulations of snow
and ice from its train platform, and no duty to warn of such
accumulations. We further hold that the appellate court did not err in
determining that the trial court should have directed a verdict in favor
of the CTA in its entirety. Accordingly, we affirm the judgment of the
appellate court.
Appellate court judgment affirmed.
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JUSTICE FREEMAN, dissenting:
The court today holds that the natural accumulation rule relieves
common carriers of the duty to provide passengers a safe place to
alight. This conclusion not only ignores the Local Government and
Governmental Employees Tort Immunity Act, but it is also at odds
with this court’s case law. I therefore respectfully dissent.
Generally, whether a duty exists turns on whether the plaintiff and
the defendant stood in such a relationship to one another that the law
imposes on the defendant an obligation of reasonable conduct for the
plaintiff’s benefit. Marshall v. Burger King Corp., 222 Ill. 2d 422
(2006). The inquiry involves four factors, including the reasonable
foreseeability of the injury, the likelihood of the injury, the magnitude
of the burden of guarding against the injury, and the consequences of
placing the burden on the defendant. Marshall, 222 Ill. 2d at 436-37.
In applying this analysis, Illinois courts also impose a particular
standard of care on those involved in four “special relationships”
which are described in section 314A of the Restatement of Torts.
Iseberg v. Gross, 227 Ill. 2d 78, 88 (2007); Restatement (Second) of
Torts §314A (1965). The four special relationships giving rise to a
duty to protect another from harm are: (1) carrier-passenger, (2) inn
keeper-guest, (3) business invitor-invitee, and (4) voluntary
custodian–protecting under certain limited circumstances. Iseberg,
227 Ill. 2d at 88.
Applying these factors, this court has long held that a common
carrier owes its passengers the highest duty of care consistent with the
practical operation of its conveyances. Rotheli v. Chicago Transit
Authority, 7 Ill. 2d 172 (1955). The carrier is bound to furnish the
passenger an opportunity to safely alight from the conveyance and
reach a place of safety. Katamay v. Chicago Transit Authority, 53 Ill.
2d 27 (1972).
This case raises the question of whether “the natural accumulation
rule” relieves a common carrier of its duty to passengers where snow
and ice are concerned. In Illinois, the natural accumulation rule arose
in the context of municipal liability for care of public streets and
sidewalks. Graham v. City of Chicago, 346 Ill. 638 (1931).
Municipalities are not liable for the failure to remove natural
accumulations of snow and ice. The rule has also been applied to
private landowners as well. Riccitelli v. Sternfeld, 1 Ill. 2d 133
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(1953).
Tort Immunity Act
The General Assembly has codified the natural accumulation rule
with respect to municipalities in section 3–105 of the Local
Governmental and Governmental Employees Tort Immunity Act.
Although the CTA is a legislatively created governmental agency, the
General Assembly specifically excluded it from the Tort Immunity
Act’s protection. 745 ILCS 10/2–101(b) (West 2008). The legislature
has also codified the rule with respect to private citizens arising from
their negligent attempts to remove ice and snow from sidewalks
adjoining their residences in the Snow Removal Act. See 745 ILCS
75/1 (West 2008). The legislature’s action indicates its intent that the
CTA not receive the benefit of the natural accumulation rule,
although other local governmental agencies do, as well as
homeowners. The General Assembly’s action therefore forecloses the
court’s holding today.
Illinois Common Law
Other reasons, apart from the Tort Immunity Act, also support the
conclusion that the natural accumulation rule has no application to
this case. This court has never explicitly addressed whether the
natural accumulation rule trumps a common carrier’s duty of care.1
Our appellate court has concluded that the rule does apply to common
carriers (Serritos v. Chicago Transit Authority, 153 Ill. App. 3d 265
(1987); Sheffer v. Springfield Airport Authority, 261 Ill. App. 3d 151
(1994)), although I question the soundness of its analysis. The
1
The court cites McElligott v. Illinois Central R.R. Co., 37 Ill. 2d 459
(1967), as a case in which the natural accumulation rule was applied to a
common carrier. This is somewhat misleading in that the plaintiff’s
decedent in that case was not the carrier’s passenger. Rather, he was
driving a car which slid on an street which was belonged to the carrier as
part its right of way. As such, the duty of care owed in that case was that
of ordinary care. See Katamay, 53 Ill. 2d at 31 (explaining that status of
being a passenger triggers the common carrier’s duty to the highest degree
of care for the safety of an individual).
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appellate court’s conclusion is predicated on the fact that the natural
accumulation rule shields a business invitor from any liability to
invitees from the failure to remove or take other precautions against
dangers inherent in natural accumulations of snow and ice. This is so
even though a business invitor ordinarily owes invitees a duty of
reasonable care. See generally Smalling v. La Salle National Bank of
Chicago, 104 Ill. App. 3d 894 (1982); Watson v. J.C. Penney Co., 237
Ill. App. 3d 976 (1992).
Applying the same reasoning, the appellate court has similarly
used the rule to shield common carriers from liability to passengers
from the failure to remove or take precautions against natural
accumulations of snow and ice. Serritos, 153 Ill. App. 3d at 271-72.
In both situations, the holdings are based on the fact that in northern
climates, like ours, where ice and snow are a fact of life, people are
aware of the hazards posed by such conditions, and it is impractical
to require property owners and carriers to remove snow and ice. See
Cronin v. Brownlie, 348 Ill. App. 448 (1952). In other words, snow
and ice pose dangers that are open and obvious to all who live in
climates such as ours.
The appellate court’s analysis is problematic on several levels.
None of the cases satisfactorily reconcile the natural accumulation
rule with the duties that the law recognizes as owed to either an
business invitee or a common carrier passenger. In this respect, the
appellate court’s holdings are at odds with this court’s decision in
Ward v. K mart Corp., 136 Ill. 2d 132 (1990). There, this court
discussed the duties owed by a store to its customers with respect to
conditions on its premises. The customer had walked into a concrete
post, which he did not see because he was carrying a large mirror
which obstructed his view. This court rejected K mart’s contention
that it had no duty to warn of the condition because it was not
foreseeable that its customers would fail to observe the concrete post.
We specifically recognized that the “ ‘obviousness’ of a condition or
the fact that the injured party may have been in some sense ‘aware’
of it may not always serve as adequate warning of the condition and
of the consequences of encountering it.” Ward, 136 Ill. 2d at 148-49,
citing Restatement (Second) of Torts §343A (1965). The defendant
therefore had a duty to protect the customer from the condition. Ward,
136 Ill. 2d at 149.
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In the wake of Ward, a business owner’s duty of reasonable care
for conditions on its premises extends to those whom it should expect
will not realize the danger or will fail to protect themselves against it.
According to Ward, “[w]hether in fact the condition itself served as
adequate notice of its presence or whether additional precautions
were required to satisfy the defendant’s duty are questions properly
left to the trier of fact. The trier of fact may also consider whether the
plaintiff was in fact guilty of negligence contributing in whole or in
part to his injury, and adjust the verdict accordingly.” Ward, 136 Ill.
2d at 156-57. Ward also acknowledged the “manifest trend of the
courts in this country is away from the traditional rule absolving, ipso
facto, owners and occupiers of land from liability for injuries
resulting from known or obvious conditions” on their land. Ward, 136
Ill. 2d at 150.
As noted, this court’s adoption of the Restatement position
reflected a growing judicial awareness that occupiers of premises are
generally in a better position in modern society to protect the public
from hazards than are invitees who must go into public places as part
of daily life. This view serves to encourage landowners to repair
defects, rather than to keep them “open and obvious” in order to
avoid liability under the traditional approach. It thus appropriately
balances the interests of landowners and invitees by setting out “a
requirement of due care to make the conditions reasonably safe–a
requirement that might well be satisfied by warning or obviousness
in any given case, but that would not be so satisfied invariably.” 5 F.
Harper, F. James & D. Gray, The Law of Torts §27.13, at 241 (2d ed.
1986).
Ward’s reliance on section 343 of the Restatement has
significance to the application of the natural accumulation rule.
Simply put, the rule is inconsistent with the principles stated in
section 343 because it dilutes the owner’s duty and undermines basic
principles of public responsibility. Hammond v. Allegretti, 262 Ind.
82, 311 N.E.2d 821 (1974). Courts in other jurisdictions have
recognized as much. See Kremer v. Carr’s Food Center, Inc., 462
P.2d 747 (Alaska 1969) (relying on Restatement to reject the natural
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accumulation rule).2 For example, in Kremer v. Carr’s Food Center,
Inc., a grocer’s customer fell on an icy rut on an unsalted ice- and
snow-covered parking lot maintained for the use of the grocer’s
customers. The Alaska Supreme Court held that the case was
governed by existing Alaska tort case law which approved the
definition of the duty owed by a possessor of land to an invitee as set
forth in section 343 of the Restatement:
“Section 343 is controlling here. A jury could have found:
(a) that Carr’s possessed the parking lot and knew the
condition of its surface, (b) that Carr’s should have realized
that this condition involved an unreasonable risk of harm to
its business invitees, (c) that Carr’s should have expected that
its business invitees would not discover or realize the danger,
or should have anticipated that they would fail to protect
themselves against a danger they did discover or realize, or
should otherwise have anticipated harm to invitees despite the
fact that the danger was known or obvious to them, and (d)
that Carr’s failed to exercise reasonable care to protect
business invitees, such as [plaintiff], from the dangerous
surface conditions in its parking lot.” Kremer, 462 P.2d at
749-50.
Relevant here too is the court’s thoughts on the weather:
“Alaska’s climatic conditions do not metamorphize all risks
arising from ice and snow conditions into reasonable risks for
the business invitee. Nor are we persuaded by appellee Carr’s
policy argument that in Alaska it would result in unreasonable
costs to the private-commercial possessor of land to require
the possessor to clear ice and snow, or otherwise remedy
conditions which amount to unreasonable risks of harm to its
business invitees.” Kremer, 462 P.2d at 752.
The court noted that the “mere fact” that “snow and ice conditions
prevail for many months throughout various locations in Alaska” was
not “in and of itself sufficient rationale for the insulation of the
possessor of land from liability to his business invitee.” Kremer, 462
2
I note that Kremer was cited with approval by this court in Ward.
Ward, 136 Ill. 2d at 150.
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P.2d at 752.
Similarly, the Michigan Supreme Court cited its recognition of the
principles in section 343 of the Restatement as the basis for its
overruling of the natural accumulation rule. Quinlivan v. Great
Atlantic & Pacific Tea Co., 395 Mich. 244, 235 N.W.2d 732 (1975).
The court explicitly rejected the “the prominently cited notion that ice
and snow hazards are obvious to all and therefore may not give rise
to liability.” Quinlivan, 395 Mich. at 261, 235 N.W.2d at 740. See
also Isaacson v. Husson College, 297 A.2d 98 (Me. 1972); M.
Polelle, Is the Natural Accumulation Rule All Wet? 26 Loy. U. Chi.
L.J. 631, 646-48 (1995) (noting that most states have rejected the
natural accumulation rule in favor of a standard of due care).
As I indicated earlier, the appellate court’s application of the
natural accumulation rule to common carriers was predicated on the
basis that the rule shields business owners from liability for their
invitees. That rationale is questionable in light of this court’s decision
in Ward and its reliance on section 343 of the Restatement of Torts.
For that reason, I would not apply the rule to common carriers.
Conclusion
In view of both Illinois statutory and common law, I would hold
that a common carrier’s standard of care trumps the natural
accumulation rule. That is, the duty of care should extend to the kind
of risk encountered by plaintiff here, a risk which is not only
foreseeable but is likely to cause injury to passengers. It appears from
the trial testimony that the CTA has employees whose specific job
responsibilities include checking for safety from snow and ice.
Therefore, it is not unreasonable or impractical to impose such a duty
on the carrier as the court today states. Slip op. at 13. Certainly, it is
not unduly burdensome for a conductor to warn passengers as they
alight from the train to watch for ice on the platform. This would not
impose any greater burden than already imposed on the CTA as to
other sorts of open and obvious conditions, such as an extended
platform flat or unnatural accumulations of water and ice. Nor would
it render the CTA absolutely liable whenever a passenger slipped on
ice or snow because, under Ward, a jury would have to decide
whether the parties acted reasonably.
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I must also point out that today’s decision is at odds with this
court’s recent decision in Marshall v. Burger King Corp., 222 Ill. 2d
422 (2006). There, a majority of this court held that a special
relationship, standing alone, is sufficient to establish the affirmative
duty to protect a business invitee from the tortious conduct of a third
party. The plaintiff, who was in the Burger King restaurant, was
injured by a car which crashed through the wall of the building. The
court held that it was a jury question as to whether Burger King’s
decision not to have concrete pillars and poles outside the restaurant
comported with its duty to its patrons. If Burger King has a duty to
protect its diners from an airborne car, then the CTA should also have
a duty protect its passengers from icy conditions on its train
platforms. See J. Powell, Marshall v. Burger King Corp.: Making a
Mess of “Duty” For Businesses in Illinois, 28 N. Ill. U. L. Rev. 95,
95 n.1 (Fall 2007).
Finally, I am disappointed by the court’s failure to acknowledge
any of the legal arguments made in this dissent, even though these
arguments were raised by the parties. Such a failure unfortunately
serves only to leave the impression of a result-oriented approach to
judicial decisionmaking that undercuts public confidence in the
courts. The parties, as well as the people of this state, deserve
opinions from this court which are in harmony with the statutes
passed by our legislature and which reconcile decisional law. As I
have pointed out, the General Assembly has not given the CTA the
benefit of the natural accumulation rule. This represents an explicit
statement of the public policy of this state that I, unlike my
colleagues, am unwilling to ignore. By its actions today, the court has
indicated that it can better form the public policy of this state than can
the General Assembly, even though this court regularly states that it
is the General Assembly that is the branch of government uniquely
suited for that role. See Boub v. Township of Wayne, 183 Ill. 2d 520,
535 (1998). In Chicago, when a snow storm hits, elected officials
often tell citizens to stay off of the roads and to use public
transportation in order to facilitate snow removal measures. Although
municipalities are immunized by the Tort Immunity Act from liability
for snow removal, the CTA is not, which serves to encourage citizens
to use it as directed by city officials. Today’s decision ignores the
protection that the General Assembly has seen fit to give the users of
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the CTA and puts those citizens who follow officials’ directions in
potential harm’s way with no recourse for the damages they might
incur if injured on an icy CTA platform. I, therefore, would reverse
the decision of the appellate court and reinstate the jury’s verdict in
favor of plaintiff.
JUSTICE KILBRIDE joins in this dissent.
Dissent Upon Denial of Rehearing
JUSTICE FREEMAN, dissenting:
The natural accumulation rule–or the “Massachusetts rule” as it
is commonly known and referred to in treatises and courts around the
nation (W. Prosser & W. Keeton, Torts §61, at 427-28 (5th ed.
1984))–is the basis for the majority’s decision in this case. The
“Massachusetts rule” allows a property owner to skirt liability for
failing to remove a natural accumulation of snow and ice.
Significantly, within one week of the issuance of the court’s
opinion in this case, the Supreme Judicial Court of Massachusetts
unanimously did away with the “Massachusetts rule” in
Papadopoulos v. Target Corp., 457 Mass. 368, 930 N.E.2d 142
(2010). With that decision, Massachusetts has now aligned itself with
the majority of states which follow the reasonable care standard that
I outlined in my original dissent.
Recognizing the significance of that decision, the plaintiff now
seeks rehearing on the point, urging that this court at the very least
reconsider the case in light of Papadopoulos.
Not surprisingly, the court ignores the request. I say not
surprisingly because the court previously ignored the direct
implications of the Tort Immunity Act for this case or the viability of
the natural accumulation rule in the aftermath of this court’s decision
in Ward v. K mart, as I pointed out in my original dissent.
Papadopoulos presents the court with another opportunity to explain
why it insists on perpetuating a rule that is obsolete and no longer has
a basis in modern Illinois tort law regarding premises liability. The
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court passes on this opportunity and continues to be content simply
to stand by its “recognition” of the dangers posed by natural
accumulations of snow and ice. To the court, imposing an obligation
to remedy those conditions “ ‘would be so unreasonable and
impractical as to negate the imposition of a legal duty to do so.’ ” Slip
op. at 13, quoting Trevino v. Flash Cab Co., 272 Ill. App. 3d 1022,
1029-30 (1995). These arguments were the central reason for the
creation of the Massachusetts rule, which even the Massachusetts
supreme court has now abandoned.
The Massachusetts court rejected the notion that liability is
negated based on the impracticalities or the unreasonableness of snow
and ice removal:
“This argument [i.e., unreasonableness and impracticality in
northeastern winter climate] has proven unpersuasive to every
other Supreme Court in New England, which have all rejected
the so-called Massachusetts rule of natural accumulation. The
Supreme Court of Rhode Island cogently defeated this
argument by stating:
‘We believe that today a landlord, armed with an
ample supply of salt, sand, scrapers, shovels and even
perhaps a snow blower, can acquit himself quite
admirably as he takes to the common passageways to do
battle with the fallen snow, the sun-melted snow now
turned to ice, or the frozen rain. We fail to see the
rationale for a rule which grants a seasonal exemption
from liability to a landlord because he has failed to take
adequate precautions against the hazards that can arise
from the presence of unshoveled snow or unsanded or
salt-free ice found in the areas of his responsibility but yet
hold him liable on a year round basis for other types of
defects attributable to the workings of mother nature in
the very same portions of his property.’ Fuller v. Housing
Auth. of Providence, 108 R.I. 770, 773, 279 A.2d 438
(1971).” Papadopoulos, 457 Mass. at 380, 930 N.E.2d
at 151-52.
I also take issue with the court’s implicit concern that to impose
liability here would somehow overburden the CTA. As the
Massachusetts court recognized, the use of a reasonable care standard
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does not impose any “special burdens” on property owners:
“If a property owner knows or reasonably should know of a
dangerous condition on its property, whether arising from an
accumulation of snow or ice, or rust on a railing, or a
discarded banana peel, the property owner owes a duty to
lawful visitors to make reasonable efforts to protect lawful
visitors against the danger.” Papadopoulos, 457 Mass. at 383,
930 N.E.2d at 154.
According to the Massachusetts court, under the reasonable care
standard it is for the finder of fact to determine“what snow and ice
removal efforts are reasonable in light of the expense they impose on
the landowner and the probability and seriousness of the foreseeable
harm to others.” Papadopoulos, 457 Mass. at 384, 930 N.E.2d at 154.
More importantly, the court acknowledged that the use of such a
standard “does not make a property owner an insurer of its property;
‘nor does it impose unreasonable maintenance burdens.’ ”
Papadopoulos, 457 Mass. at 384, 930 N.E.2d at 154, quoting
Mounsey v. Ellard, 363 Mass. 693, 709, 297 N.E.2d 43, 53 (1973).
Rather, under the standard, the snow removal
“reasonably expected of a property owner will depend on the
amount of foot traffic to be anticipated on the property, the
magnitude of the risk reasonably feared, and the burden and
expense of snow and ice removal. Therefore, while an owner
of a single-family home, an apartment house owner, a store
owner, and a nursing home operator each owe lawful visitors
to their property a duty of reasonable care, what constitutes
reasonable snow removal may vary among them.”
Papadopoulos, 457 Mass. at 384, 930 N.E.2d at 154.
In light of the above, I continue to believe that the court’s decision
in this case is wrong on both a statutory and a common law basis. I
would grant rehearing so that this court can issue an opinion which
does not ignore the important issues raised in this case.
JUSTICE KILBRIDE joins in this dissent.
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