dissenting:
I disagree with the majority opinion. The trend of modem cases is to reject the natural accumulation of snow and ice rule. One reason may be no one understands the difference between a natural accumulation of ice and snow and an unnatural accumulation. Another reason may be business customers deserve better treatment from business owners.
The question presented is whether J.C. Penney’s duty of reasonable care to business invitees is to be ignored in favor of an archaic rule. I believe the Illinois Supreme Court answered that question in Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 554 N.E.2d 223. Justice Ryan’s scholarly review and analysis of section 343 of the Restatement (Second) of Torts (Restatement (Second) of Torts §343 (1965)) is fully applicable to the question presented in this case.
The majority suggests plaintiff is arguing his position in the wrong forum, and an intermediate court of review ought be particularly cautious in dabbling in such fundamental policy questions. I agree caution is appropriate, but logic suggests the Ward analysis no longer permits the peaceful coexistence of section 343 and the natural accumulation rule.
If the operator of a business owes a duty of reasonable care to his customers, then that duty should extend to the kind of risk encountered by plaintiff here. This would not impose any greater burden than already imposed on defendant as to other sorts of conditions. It would not make defendant absolutely liable because a customer slipped on ice or snow. It would simply leave it for a jury to decide whether the parties acted reasonably. Instead of a drastic change, this would simply be a return to traditional analysis no longer skewed by a special exception that has no meaningful basis in law or public policy.