Brown v. Village of Lisle

2023 IL App (2d) 210732-U
No. 2-21-0732
Order entered May 16, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

JACQUELYN BROWN, ) Appeal from the Circuit Court
) of Du Page County.
)
Plaintiff-Appellant, )
v. ) No. 19-L-1216
)
VILLAGE OF LISLE, ) Honorable
) Angelo J. Kappas,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________

PRESIDING JUSTICE McLAREN delivered the judgment of the court.
Justices Hutchinson and Jorgensen concurred in the judgment.

ORDER

¶1 Held: Summary judgment for village was proper where there was no dispute of material
fact that plaintiff slipped on a natural accumulation of ice or freezing rain on train
platform. Trial court affirmed.

¶2 In this slip and fall case, plaintiff, Jacquelyn Brown, appeals from the summary judgment

entered against her and in favor of defendant, Village of Lisle. Plaintiff contends that there were

questions of material fact that precluded summary judgment. Because there were no questions of

material fact and defendant was entitled to judgment as a matter of law, we affirm.

¶3 I. BACKGROUND
2023 IL App (2d) 210732-U

¶4 On December 31, 2018, at approximately 5:30 a.m., plaintiff slipped and fell on the Metra

station platform in the Village of Lisle (the village), injuring an ankle and a hip. Approximately

30 minutes before her fall plaintiff noticed freezing rain, and she believed that she slipped on ice

as she was boarding the train.

¶5 In January 2020, plaintiff filed a two-count first amended complaint against defendant and

Alaniz Landscape Group, Inc. Count I alleged that defendant’s negligence caused plaintiff to slip

on ice and sustain injuries when she attempted to board the train at the Lisle Metra station. Count

II alleged liability against Alaniz Landscape Group. On plaintiff’s motion, the trial court dismissed

count II against Alaniz Landscape Group.

¶6 Defendant asserted affirmative defenses including 1) that it owed no duty to plaintiff

because the alleged injuries were caused by a natural accumulation of snow or ice; 2) immunity

pursuant to section 3-102 of the Local Governmental and Government Employee Tort Immunity

Act (Act) (745 ILCS 10/3-102 (West 2018)), asserting that it had no actual or constructive notice

of the alleged dangerous condition; and 3) immunity pursuant to section 3-105 of the Act (id. § 3-

105), asserting that plaintiff’s alleged injuries were caused by weather conditions.

¶7 During plaintiff’s discovery deposition, she testified that, on the morning of the incident,

she noticed that it was freezing rain outside from the time she left her house in Lombard at

approximately 4:50, to the time she arrived at the Lisle train station 20 minutes later at

approximately 5:10-5:15 a.m. She explained that freezing rain is “[n]ormal rain, and then when it

hits the ground, it turns to ice.” Plaintiff waited in the car until she saw the train approaching the

station. As plaintiff walked from the parking lot to the train platform, she noticed crunching under

her feet and saw freezing rain on the ground. Plaintiff did not see any salt on the ground of the

parking lot or on the train platform. She did not see any mounds, piles, or accumulations of snow

anywhere near the area where she slipped and fell on the train platform. The train platform was lit.

-2-
2023 IL App (2d) 210732-U

The platform was concrete with a yellow strip of raised truncated cones at the edge, closest to the

tracks.

¶8 After plaintiff examined a photograph of the Lisle train station and platform area, she

placed a mark where she believed she slipped and fell. Plaintiff testified that the mark indicated

that she fell on the concrete portion of the train platform next to the yellow strip. The mark on the

photograph appears on the concrete area of the platform next to the yellow strip. Plaintiff testified

that as she was boarding the train, she reached up with her right hand to grab the door’s handrail

when her right foot slipped on “black ice.” Plaintiff then fell, causing an ankle fracture and hip

tear. As plaintiff fell, she looked upward. After she fell, she did not look at the ground. Plaintiff

did not see pools of ice on the train platform either prior to or after her fall. Plaintiff based her

testimony that there was ice on the train platform on the fact that she felt crunching under her shoes

while she walked toward the train.

¶9 Jason Elias, the director of defendant’s public works department (the department) testified

during a discovery deposition that in December 2018 the department received forecasts from

Continental Weather Service (Continental) every morning and every afternoon with forecasts for

the following day. The department’s director, superintendent, or foreman then determined if a

weather forecast qualified for a weather event response from the village. When it rained and was

below freezing, the department responded based on the surface conditions of the roads and

walkways and whether it had notice of slippery conditions. The department’s policy was that

during normal working hours, Monday-Friday from 7:00 a.m. to 3:30 p.m., the director,

superintendent, or foreman monitored slippery conditions within the village. Outside of normal

working hours, the Lisle police department patrolled the village 24 hours a day and was responsible

for notifying the public works department of weather events requiring snow or ice removal.

Outside of normal working hours, the department relied on the Lisle police department to notify it

-3-
2023 IL App (2d) 210732-U

of a weather event because the department had limited resources and it could not afford to staff

the department 24 hours a day, seven days a week.

¶ 10 Justin Ross, the superintendent of the department at the time of the incident, testified during

his discovery deposition that the department received weather forecasts twice a day from

Continental. If a significant weather event was forecasted, the department would provide staff. But

if it was a questionable weather event, the department would rely on the Lisle police department

to notify it. A significant weather event included snow of five inches or more and rain with

temperatures below 32 degrees Fahrenheit.

¶ 11 On Sunday, December 30, 2018, the day before the incident, Continental sent an email to

Elias and Ross at 2 p.m. stating “24 HOUR FORECAST ENDING 2 PM MON.” The forecast

stated, “PRECIPITATION: LIGHT RAIN (POSSIBLE FREEZING RAIN INITIALLY) ***

PRECIPITATION TIME: 4-7 AM TILL 2-4 AM TUE.” For Monday, (the day of plaintiff’s

alleged slip and fall) Continental predicted a minimum temperature between 30-32 degrees and a

maximum temperature of 37 degrees. It also predicted that on Monday, between 7-9 a.m. the

temperature would be above 32 degrees. In the “remarks” section, the forecast stated:

“Rain will spread into the area for the a.m. commute. Temps in the Chicago metro area will

likely be above freezing so that the area will likely be spared any icing, but the rest of the

area will be looking at a potential 2-4-hour period of potential light icing. Most areas have

some residue down from the past system, but you may want to have some crew come in

early to be safe for the commute.”

The forecast also advised of a winter weather advisory 4 a.m. to 9 a.m., Monday, December 31,

for Du Page County.

-4-
2023 IL App (2d) 210732-U

¶ 12 Regarding the email from Continental delivered the day before the incident, Elias testified

that, based on his experience, he could not say for certain that an intervention by the department

was required. Elias testified:

“Every weather event is different. Every storm is different. And just given the fact

that the temperatures were hovering at or above freezing, I wouldn’t automatically say that

there was something that needed to be done [on that specific day.]”

¶ 13 At the time of the incident, there was a lease station agreement in effect between defendant

and Metra (identified as the Burlington Northern and Sante Fe Railway Company, “BNSF”).

Regarding maintenance of the train platform defendant agreed to “promptly remove ice and snow

from the platforms *** and when necessary, shall de-ice the same *** with commercial products

in order that [it] will be suitable for use.”

¶ 14 Also, at the time of the incident, the department had a snow and ice control policy. The

introduction to the policy stated, in part, “It is understood that weather, being an uncontrollable

situation, will have to be dealt with using human judgement on an ongoing basis and that this plan

is a guide.” One of the stated goals of the policy was “the safe and efficient removal of snow and

ice from the Village owned streets, *** and commuter platforms.” The policy listed the “Central

Business District,” which included the train platform at issue, as its highest priority location.

According to defendant’s policy, all department employees were “on call” for snow and during

extreme conditions.

¶ 15 In May 2021, defendant filed a motion for summary judgment. Defendant contended, inter

alia, that it owed plaintiff no duty of care because she slipped on a natural accumulation of ice,

and it was immune from liability for injuries caused by weather conditions pursuant to section 3-

105(a) of the Act (745 ILCS 10/3-105(a) (West 2018)). Defendants also argued that it was immune

-5-
2023 IL App (2d) 210732-U

from liability for the alleged icy condition because it had no actual or constructive notice of the

condition prior to plaintiff’s slip and fall, pursuant to section 3-102 of the Act (id. § 3-102).

¶ 16 In plaintiff’s response to defendant’s motion she argued, in part, that she slipped and fell

on an unnatural accumulation of water and ice formed on the yellow strip of raised truncated cones

on the train platform.

¶ 17 In its reply, defendant noted that the yellow strip of truncated cones was a federally

mandated design in compliance with the Americans with Disabilities Act (ADA) (42 U.S.C. §

12101 et seq. (2012)) and Federal ADA Standards for Accessible Design §705 that applies to train

platforms (36 C.F.R. § 1191, App. D at 705) (“Detectable Warnings”).

¶ 18 In ruling on the motion for summary judgment, the trial court determined that plaintiff

slipped on a natural condition and, therefore, defendant had no common-law duty to plaintiff. The

court explained that plaintiff failed to raise a question of material fact regarding whether she

slipped on an unnatural accumulation of ice because she testified that she was unsure if she slipped

on the yellow ADA strip. The court also ruled that defendant was immune for injuries caused by

weather conditions pursuant to section 3-105 of the Act, there was no voluntary undertaking due

to defendant’s policies or contract with Metra, and defendant had no actual or constructive notice

pursuant to section 3-102 of the Act. Therefore, the trial court granted summary judgment in favor

of defendant. After the trial court denied plaintiff’s motion to reconsider, plaintiff filed this timely

appeal.

¶ 19 II. ANALYSIS

¶ 20 This appeal involves the trial court’s granting of a motion for summary judgment, which

we review de novo. Johnson v. Armstrong, 2022 IL 127942, ¶ 31. A court properly grants a motion

for summary judgment where the pleadings, depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

-6-
2023 IL App (2d) 210732-U

party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2020). A genuine

issue of material fact exists where the material facts are disputed or, if they are undisputed, where

reasonable persons might draw different inferences from them. Johnson, 2022 IL 127942, ¶ 31.

However, speculation, conjecture, or guess is insufficient to withstand summary judgment.

Country Mutual Insurance Co. v. Under Construction & Remodeling, Inc., 2021 IL App (1st)

210600, ¶ 24 (citing Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999)).

¶ 21 Where the plaintiff seeks recovery based on the defendant’s alleged negligence, the

plaintiff must plead and prove the existence of a duty owed by the defendant, a breach of that duty,

and injury proximately resulting from that breach. Murphy-Hylton v. Lieberman Management

Services, Inc., 2016 IL 120394, ¶ 18. Whether a duty exists is a question of law appropriate for

summary judgment. Carney v. United Pacific R.R. Co., 2016 IL 118984, ¶ 26. Absent facts from

which the court could reasonably infer the existence of a duty, a plaintiff may not recover as a

matter of law and summary judgment in favor of the defendant is proper. Id.

¶ 22 Here, plaintiff argues that the trial court erred by determining that defendant did not owe

her a duty as a matter of law. Defendant counters that the trial court properly found that it owed

no duty to plaintiff for the natural accumulation of ice or freezing rain on the train platform. We

agree with defendant.

¶ 23 Generally, landowners owe no duty to remove natural accumulations of ice, water, or snow

from their property. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 227 (2010). This

common-law natural accumulation rule is codified in section 3-105(a) of the Tort Immunity Act.

Moore v. Chicago Park District, 2012 IL 112788, ¶ 11. “Section 3-105 grants public entities

absolute immunity from liability for injuries caused by natural accumulations of snow and ice, but

only conditional immunity when the injury is caused by an unnatural accumulation.” Id. See also

Ziencina v. County of Cook, 188 Ill. 2d 1, 13-14 (1999) (under the immunity granted by section 3-

-7-
2023 IL App (2d) 210732-U

105, “a local public entity has no duty to remove natural accumulations of ice and snow from

public property”). Natural accumulations are “caused by the mere falling and settling of snow or

precipitation.” Mickens v. CPS Chicago Parking, LLC, 2019 IL App (1st) 180156, ¶ 26.

¶ 24 However, landowners owe a duty of reasonable care to prevent unnatural accumulations of

ice and snow on their premises where the accumulation is caused by a defective condition of the

property. Murphy-Hylton, 2016 IL 120394, ¶ 21.

¶ 25 Plaintiff argues that genuine issues of material fact exist as to whether the ADA strip was

a defect that created an unnatural accumulation of ice and whether plaintiff slipped on the icy ADA

strip. Defendant responds that plaintiff has not presented any evidence that she slipped and fell on

an unnatural accumulation of ice.

¶ 26 To survive a motion for summary judgment in cases involving injuries resulting from

accumulations of ice, snow, or water, a plaintiff must provide sufficient evidence to allow a trier

of fact to find that the defendant was responsible for an unnatural accumulation of water, ice or

snow that caused plaintiff’s injuries. Hornacek v. 5th Avenue Property Management, 2011 IL App

(1st) 103502, ¶ 30.

¶ 27 Here, plaintiff failed to submit any evidence that would allow a fact finder to find (1) that

she slipped on the yellow ADA strip, or (2) that the yellow ADA strip created an unnatural

accumulation of ice. Plaintiff acknowledged as much in her deposition testimony when she

testified that she slipped on “the concrete area right before the yellow [ADA strip] part,” she could

not “really recall” where she slipped and fell, and she was not sure whether she was on the yellow

grooved portion of the platform when she slipped and fell. Further, plaintiff testified regarding a

photograph of the train platform that she marked indicating where she slipped and fell. The mark

appears near, but not on, the yellow ADA strip. Therefore, nothing in the record supports plaintiff’s

claim that she was on the yellow ADA strip when she slipped and fell.

-8-
2023 IL App (2d) 210732-U

¶ 28 Even if plaintiff had slipped and fallen on the yellow ADA strip, she submitted no evidence

that the strip created an unnatural accumulation. Plaintiff contends that when it rains, water

accumulates on the strip, which is comprised of truncated cones, and the strip retains water.

However, plaintiff presented no evidence, from an expert or otherwise, to support her argument or

theory. Plaintiff’s speculation and conjecture are insufficient to create a material issue of fact to

survive a motion for summary judgment. Kasper v. McGill Management Inc., 2019 IL App (1st)

181204, ¶ 29. See also Madeo v. Tri–Land Properties, Inc., 239 Ill. App. 3d 288, 294 (1992) (We

held that the plaintiff’s speculation as to the cause of the ice that he slipped on was insufficient to

withstand the defendant’s motion for summary judgment). Therefore, the trial court properly

determined that plaintiff fell on a natural accumulation of ice.

¶ 29 Next, plaintiff argues that defendant is not entitled to immunity because it voluntarily

assumed the duty to remove snow and ice from the train platform due to its snow and ice removal

policy and its contract with Metra. Defendant responds that plaintiff cannot rely on this theory in

resisting summary judgment below—and by extension cannot rely on it on appeal—because her

complaint did not allege that theory. However, defendant has forfeited any objection to the lack of

specificity in pleading the voluntary undertaking theory because defendant failed to object below

when plaintiff raised this theory in her response to defendant’s motion for summary judgment.

Instead, defendant addressed the theory in its reply to plaintiff’s response. By failing to object to

the pleading deficiency in the trial court, defendant forfeited this issue See Williams v. Alfred N.

Koplin & Co., 114 Ill. App. 3d 482, 486 (1983) (pleading deficiency is forfeited where the party

fails to object to the theory advanced by the opponent in response to the motion for summary

judgment).

¶ 30 “Under the voluntary-undertaking theory, where a person voluntarily agrees to perform a

service necessary for the protection of another person or their property, a duty may be imposed on

-9-
2023 IL App (2d) 210732-U

the party undertaking the service; that party must perform the service in such a manner as not to

increase the risk of harm to the other person who relies on the undertaking.” Claimsone v.

Professional Property Management, LLC., 2011 IL App (2d) 101115, ¶ 21. This theory applies to

cases of misfeasance (where a party performs a promised service negligently) and nonfeasance

(where a party fails to perform the promised service altogether). Id. ¶ 22. In a case involving

nonfeasance, “ ‘a plaintiff’s reliance on the defendant’s promise is an independent, essential

element’ of the case.’ “Id. (quoting Bourgonje, 362 Ill. App.3d at 997).

¶ 31 The voluntary undertaking theory is to be construed narrowly, and the duty of care imposed

upon a party is strictly limited to the extent of the undertaking. Elam v. O’Connor & Nakos, Ltd.,

2019 IL App (1st) 181123, ¶ 41. Whether a defendant has voluntarily undertaken a duty to a

plaintiff is a question of law for the trial court to decide. Jakubowski v. Alden-Bennett Construction

Co., 327 Ill. App. 3d 627, 639 (2002).

¶ 32 The voluntary-undertaking theory is derived, in relevant part, from section 324A

(addressing liability to an injured third party for negligent performance of an undertaking) of the

Restatement (Second) of Torts (Restatement) (Restatement (Second) of Torts § 324A (1965)),

which provides:

“Liability to Third Person for Negligent Performance of Undertaking

One who undertakes, gratuitously or for consideration, to render services to another which

he should recognize as necessary for the protection of a third person or his things, is subject

to liability to the third person for physical harm resulting from his failure to exercise

reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the

- 10 -
2023 IL App (2d) 210732-U

undertaking.” (Emphasis added.) Restatement (Second) of Torts § 324A (1965).

See Bell v. Hutsell, 2011 IL 110724, ¶ 12 (recognizing the adoption of section 324A in Illinois).

¶ 33 Plaintiff relies on subsection (c): reliance. Plaintiff does not claim that she personally relied

on the contract between defendant and Metra. Rather, plaintiff argues that Metra relied on

defendant to provide snow and ice removal. However, here, where plaintiff has alleged that

defendant failed to remove a natural accumulation of ice, also known as nonfeasance, her reliance

on defendant’s voluntary undertaking is an independent element necessary to avoid summary

judgment. See Claimsone, 2011 IL App (2d) 101115, ¶ 22. To establish reliance, the plaintiff must

be unaware of the actual circumstances and unable to determine such facts on their own. Lewis v.

Chicago Trucking, Inc., 409 Ill. App. 3d 240, 256 (2011). Here, plaintiff herself observed freezing

rain as she drove to the train station and felt “crunching” that she identified as black ice, under her

feet as she walked on the train platform. Therefore, nothing in the record shows that plaintiff was

unaware of the risk posed by the alleged ice on the train platform and, therefore, nothing in the

record supports an argument that plaintiff relied in some way on defendant’s purported

undertaking.

¶ 34 Plaintiff also argues that defendant’s failure to “promptly remove ice *** from the

platforms,” as required by the contract with Metra, caused plaintiff to slip and fall. Plaintiff

correctly notes that the terms of the contract define the scope of the voluntary undertaking. Eichler

v. Plitt Theaters, Inc., 167 Ill. App. 3d 685 (1988).

¶ 35 In Eichler, the plaintiff slipped and fell outside a shopping center on naturally accumulated

ice. Id. at 692. Urban, one of the defendants, had entered into an easement agreement with the

property owner requiring it to perform the “prompt removal of all *** snow and ice.” (Emphasis

added.) Id. at 688. We held that a strict interpretation would “be absurd” because “it would create

a sisyphean duty.” Id. at 693. Therefore, we determined that the easement required the “removal

- 11 -
2023 IL App (2d) 210732-U

of all snow and ice that [was] reasonably practical.” Id. We held that summary judgment was

improper because there was evidence that the parking lot was covered with ice, and an issue of

material fact existed as to whether the defendants were negligent. Id.

¶ 36 Here, pursuant to the Metra contract, defendant agreed to “promptly remove ice and snow

from the [train] platforms *** and when necessary, to de-ice the same.”

¶ 37 However, contracts must be reasonably construed so as not to lead to absurd results. Id. To

strictly interpret the language at issue would obligate defendant to remove every bit of freezing

rain immediately as it hit the train platform and froze to ice. This strict interpretation would be

absurd indeed. See id. It “would create a sisyphean duty.” Id. Therefore, we determine that

defendant was required to remove ice and snow from the train platform and to de-ice, when

necessary, within a reasonable time.

¶ 38 Here, there is no evidence that defendant failed to remove the alleged ice from the train

platform within a reasonable time. Plaintiff testified that she saw freezing rain for the first time

when she left her house approximately 30 minutes before she slipped and fell. The weather report

provided to defendant was, at best, equivocal. To require defendant to remove freezing rain within

30 minutes where it had no actual or constructive notice, and limited resources, would be clearly

unreasonable. To hold otherwise would require defendant to stand guard 24 hours a day, 7 days a

week and to remove snow and ice immediately as it touched the ground. This would eviscerate the

common-law natural accumulation rule (see Krywin, 238 Ill. 2d at 227) and section 3-105 of the

Act. Therefore, we hold that summary judgment was proper because there was no evidence that

defendant was negligent regarding its obligations under its contract with Metra or otherwise.

¶ 39 We also note that plaintiff’s reliance on defendant’s policy is misguided. A duty of care is

not created by a defendant’s self -imposed rules or guidelines. See Rhodes v. Illinois Central Gulf

R.R., 172 Ill. 2d 213, 238 (1996); Gore v. Pilot travel Centers, LLC, 2021 IL App (3d) 210077,

- 12 -
2023 IL App (2d) 210732-U

¶ 18 (“the violation of a defendant’s internal rules or guidelines do not constitute evidence of a

defendant’s negligence or failure to use reasonable care.”).

¶ 40 Plaintiff cites Schoondyke v. Heil, Heil, Smart & Golee, Inc., 89 Ill. App. 3d 640 (1980),

ands Tressler v. Winfield Village Cooperative, Inc., 134 Ill. App. 3d 578 (1985). In these cases,

the landowners made direct promises to the plaintiffs to keep the property free of snow or ice

accumulation and then failed to do so. Here, defendant did not make a direct promise to plaintiff.

Therefore, Schoondyke and Tressler, are distinguishable from this case.

¶ 41 In addition, plaintiff cites Mickens, LLC, 2019 IL App (1st) 180156, and Hornacek, 2011

IL App. (1st) 103502, to support her argument. However, both cases involve evidence of an

unnatural accumulation of snow or ice created by snow plowing. Mickens, 2019 IL App (1st)

180156, ¶¶ 42-46; Hornacek , 2011 IL App. (1st) 103502, ¶¶ 31-32. Here, there is no evidence that

an unnatural accumulation of snow or ice caused plaintiff to slip and fall. Therefore, Mickens and

Hornacek are distinguishable from this case.

¶ 42 III. CONCLUSION

¶ 43 The judgment of the circuit court of Du Page County is affirmed.

¶ 44 Affirmed.

- 13 -