dissenting:
I respectfully must disagree with my colleagues. The facts of this case, set out in detail in the majority opinion, manifest the existence of a genuine issue as to a material fact. Accordingly, defendants were not entitled to judgment as a matter of law. Ill. Rev. Stat. (1973), ch. 110, par. 57(3).
In Illinois, in the absence of a special agreement, a landlord is not required to remove natural accumulations of ice and snow from walkways on the leased premises. (Cronin v. Brownlie (1952), 348 Ill. App. 448, 109 N.E.2d 352.) At the very least, whether a special agreement existed, presents a genuine issue as to a material fact. The pleadings, affidavits, and depositions which were before the trial court evidenced that Clarence Stephens had cleared snow and ice from the sidewalks and steps each time they had accumulated during the 15 years of plaintiff’s tenancy. Moreover, the allegations in plaintiff’s complaint and the testimony in the form of depositions and affidavits were sufficient to infer that plaintiff had relied upon Stephens to continue this course of conduct. It was plaintiff’s position, supported by affidavits and deposition testimony, that defendants assumed the duty of keeping the steps and walks clear of snow and induced her to rely upon them to see that such duty was performed. The duty was breached when Stephens failed to correctly ascertain the presence of ice and remedy the dangerous condition on the day in question.
At this stage of the proceedings, plaintiff need only show some factual basis which would arguably entitle her to judgment. (Gehrman v. Zajac (1975), 34 Ill. App. 3d 164, 340 N.E. 184.) Additionally, the pleadings, affidavits and depositions must be construed in the light most favorable to plaintiff. National Bank v. S.N.H., Inc. (1975), 32 Ill. App. 3d 110, 336 N.E.2d 115; Baier v. State Farm Insurance Co. (1975), 28 Ill. App. 3d 917, 329 N.E.2d 543.
The affidavits and depositions of all those residing in the Stephens’ household, including defendants, were sufficient to establish that Stephens’ routine inspection and removal of ice and snow from the walks represented his assumption of the duty to do so on each occasion requiring it. Stephens himself stated that he always cleaned the walks and steps before the tenants left in the morning, even if he had to be late for work in order to do so. According to Stephens there was no need for any formal system of communication with the tenants because it was assumed that he would always remove any snow and ice from the walks and steps prior to their leaving the premises in the morning. In addition to those statements made by Stephens, plaintiff stated in her deposition that she relied on Stephens to keep the premises free and clear of ice and snow. Defendant Thomasina Stephens also testified in her deposition that everyone relied upon Stephens to do all the outside chores, including the removal of ice and snow from the sidewalks and steps.
The opinion of the majority overlooks the language of this court in Cronin v. Brownlie (1952), 348 Ill. App. 448, 109 N.E.2d 352, which took cognizance of the position espoused by this plaintiff. In Cronin, plaintiff slipped and fell on ice which had accumulated on the walkway leading to her apartment. Plaintiff had used that sidewalk several times prior to her injury and each time it had been in an icy condition due to accumulations of snow and ice. This court, in reversing the judgment entered in favor of plaintiff, stated at pages 456-57:
“Appellee contends that at times the landlord had removed the snow from the sidewalks and that this fact in itself created a legal duty and hence his failure to remove the ice from the sidewalk was negligence. If the plaintiff had relied upon this, this contention might be persuasive. The evidence in the record discloses that at the time the appellee left the apartment and for several days prior thereto, there was ice on the sidewalk and no one had made any effort to remove it. It appears that she did not rely on or expect the ice to be removed from the sidewalk and on the morning of her injury the ice was still there and in the same condition as when she left her apartment.”
In the present case, plaintiff’s testimony and the affidavits and depositions of the other members of the household [indicate that] plaintiff did rely upon the landlord to remove ice and snow and had so relied for 15 years. On the morning of plaintiff’s injury, the glazed condition of the steps and walks was due to precipitation which had fallen during the night. On that morning Stephens looked out of the window at the steps and sidewalk and thought that it was only wet. Although he was subsequently informed by Claudia Thomas that it was icy and that he should put Sno-Flo on it before the tenants left for work, Stephens disregarded the suggestion and did not put anything on the wálkway prior to plaintiff’s departure. Stephens’ testimony that he looked out the window and believed that the premises were only wet also rebuts any suggestion that plaintiff was guilty of contributory negligence as a matter of law.
Citing Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769, plaintiff asserts that Stephens’ conduct over the previous 15 years represented a legal duty to remove ice and snow from the steps and walks on each occasion which necessitated the performance of that duty. The majority interpret the Nelson case as inapposite to the present case. However, in Nelson at page 74, the supreme court recognized “ * * * that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.” The record reflects that Stephens undertook to keep the walks and steps free and clear of ice and snow. Plaintiff, as well as the other tenants, relied upon him to continue that course of conduct. Whether Stephens’ conduct over the period of plaintiff’s tenancy created a duty upon which plaintiff relied and whether his actions on the morning of plaintiff’s injury constituted a breach of that duty which would result in liability are questions that should properly be put to the trier of fact. Plaintiff has presented a sufficient factual basis which arguably would entitle her to judgment. I believe that Judge Schwartz in motion court correctly denied defendants’ motion for summary judgment, and that the trial judge erred in granting that motion. For that reason, I would reverse that judgment and remand the cause for trial.