dissenting:
I have dissented from the opinion of the court because I believe it to be an erroneous perpetuation of an inapplicable rule of law which allows landowners complete immunity from liability resulting from injuries occurring on natural accumulations of snow and ice on business premises. An examination of the case law applicable to the circumstances at bar makes it apparent that the natural accumulation rule is not the proper standard to be applied relative to the duties of landowners toward business invitees.
One of the first cases in this State involving the liability of landowners for injuries arising from falls on accumulations of snow and ice was Graham v. City of Chicago (1931), 346 Ill. 638, 178 N.E. 911. In Graham, plaintiff, a pedestrian, had fallen on a patch of ice which had formed on a public sidewalk when an artificial ice rink, created by a public school, overflowed on a sidewalk and froze. Plaintiff brought suit against the city on a negligence theory and at trial recovered a jury verdict in her favor. On appeal to the Illinois Supreme Court, that court affirmed the jury verdict, finding the accumulation to have been an unnatural one which warranted the imposition of liability. In discussing the duties owed by the municipality toward pedestrians, the court stated:
“What, if any, duty devolves upon a city to remove ice from its sidewalks is a subject of a great variety of opinions, and because of this divergence of views a number of different and contradictory statements of the law have been laid down in various jurisdictions. However, there is one rule which is almost universal. That is, a city is not liable for injuries resulting from the general slipperiness of its streets and sidewalks due to the presence of ice and snow which have accumulated as a result of natural causes. (13 R. C. L. ‘Highways,’ 408; Spillane v. Fitchburg, 177 Mass. 87; Reedy v. St. Louis Brewing Ass'n, 161 Mo. 523, 53 L. R. A. 805.)” (346 Ill. 638, 641, 178 N.E. 911, 912.)
In further language indicating the premise upon which such a rule was founded, the court noted:
“It is grounded on the fact that it is unreasonable to compel a city to expend the money and perform the labor necessary to keep its walks reasonably free from ice and snow during winter months. Especially is it true in this latitude.” 346 Ill. 638, 643, 178 N.E. 911, 913.
Following Graham was the case of Cronin v. Brownlie (1952), 348 Ill. App. 448, 109 N.E.2d 352. In Cronin, the issue before the court was the liability of a landlord for injuries to a tenant sustained by the tenant on a slippery walk covered with a natural accumulation of snow and ice. Though the only authorities controlling were Graham and Strappelli v. City of Chicago (1939), 371 Ill. 72, 20 N.E.2d 43, a case also involving liability of a municipality for injuries due to natural accumulations of snow and ice, the court reversed the jury verdict in plaintiff’s favor and held that no liability would be imposed upon landowners for injuries arising from natural accumulations of snow and ice. Though significant factual differences existed between the basis for the natural accumulation rule for municipalities and landowners, the court stated:
“The rule denying liability of cities on grounds of unreasonableness and impracticability while not decisive of the issues here is in some measure pertinent.” (348 Ill. App. 448, 453, 109 N.E.2d 352, 355.)
Later, the court made the unwarranted extension from the controlling cases when it stated:
“In our northern climate where ice and snow come frequently and are accepted by all, it appears to us that the rule adopted by the majority of the States finding no liability against the landlord is more reasonable and persuasive than the minority view.” 348 Ill. App. 448, 456, 109 N.E.2d 352, 356.
Thus we find the opinion in Graham was carried over and applied in Cronin, and these cases were later relied upon in Riccitelli v. Sternfeld (1953), 1 Ill. 2d 133, 115 N.E.2d 288. Riccitelli was relied upon by Bakeman v. Sears, Roebuck & Co. (1974), 16 Ill. App. 3d 1065, 307 N.E.2d 449, which was cited as authority in Hankla v. Burger Chef Systems, Inc. (1981), 93 Ill. App. 3d 909, 418 N.E.2d 35, and McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 400 N.E.2d 16. All of these cases were used by the majority to support the application of the natural accumulation rule to the case at bar.
It is admitted by the defendants that plaintiff was a business invitee, and I perceive no reason not to apply the standards of the Restatement (Second) of Torts §§343 and 343A (1965), adopted by the supreme court in Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, and applied by this court in Sepesy v. Archer Daniels Midland Co. (1981), 97 Ill. App. 3d 868, 423 N.E.2d 942. The natural accumulation rule was originally applied only to the duties of municipalities to pedestrians and then later was extended to the quite different context of landowners and business invitees. In my view, this factual difference is so great as to not justify its extension. Moreover, the position taken herein represents a trend among other States which have rejected the application of the natural accumulation rule in the context we here consider it. In Quinlivan v. Great Atlantic & Pacific Tea Co. (1975), 395 Mich. 244, 235 N.W.2d 732, in considering the liability of a landowner to a business invitee for injuries sustained as a result of a fall on a natural accumulation of snow and ice, the Michigan Supreme Court stated:
“The line of cases noting the natural accumulation rule, however, uniformly fails to harmonize or reconcile this rule with the rigorous duty which the law recognizes as owed an invitee.
a e e
In the landmark case of Kremer v. Carr's Food Center, Inc., 462 P.2d 747 (Alas., 1969), the Alaska Supreme Court rejected application of the ‘natural accumulation’ rule in the invitor-invitee context. 0 e “ The Court [in Kremer] confined application of the natural accumulation rule to cases involving the duty owed by the municipalities to users of streets and sidewalks, viewing such users as licensees. * * *
In our view the Alaska Court has appropriately conceived the legal duty owed by the invitor to the invitee.” 395 Mich. 244, 256-60, 235 N.W.2d 732, 738-40.
Likewise, the duties the supreme court has dictated for business invitees should be the appropriate standard of care at bar, not the natural accumulation rule which under prior case law was originally applied with respect to the duties owed pedestrians by municipalities. It is understandable that from a policy standpoint such a rule would be the appropriate one for municipalities, but this policy, indicated in Graham and quoted above, is simply inapplicable to the invitor-invitee context. Moreover, the natural accumulation rule provides no clear framework of analysis and we find in cases such as McCann that liability is imposed against the landowner for water allowed to flow from shoveled snowpiles, and refreeze even though it would seem that the actions of the landowner were quite commendable. Under the natural accumulation rule as applied in McCann, had the landowner done nothing, no liability would have resulted; but because of his actions in removing it, he was held liable.
Cities pass ordinances making it a duty to clean snow from sidewalks. Public policy should encourage the removal of snow. Under the natural accumulation rule, one is exposed to liability for removing snow, but has a defense against a lawsuit for non-removal of snow. As to residential property, the Illinois legislature in 1979 enacted the snow and ice removal act (Ill. Rev. Stat. 1979, ch. 70, pars. 201 and 202), which states:
“It is declared to be the public policy of this State that owners and others residing in residential units be encouraged to clean the sidewalks abutting their residences of snow and ice. The General Assembly, therefore, determines that it is undesirable for any person to be found liable for damages due to his or her efforts in the removal of snow or ice from such sidewalks, except for acts which amount to clear wrongdoing, as described in Section 2 of this Act.” Ill. Rev. Stat. 1979, ch. 70, par. 201.
“Any owner, lessor, occupant or other person in charge of any residential property, or any agent of or other person engaged by any such party, who removes or attempts to remove snow or ice from sidewalks abutting the property shall not be liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting from his or her acts or omissions unless the alleged misconduct was willful or wanton.” Ill. Rev. Stat. 1979, ch. 70, par. 202.
The duties of landowners toward business invitees as adopted by the supreme court are those described in section 343 of the Restatement (Second) of Torts, which provides:
“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.” (Restatement (Second) of Torts §343 (1965).)
Also applicable is section 343A of the Restatement (Second) of Torts:
“(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land. whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. (2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.” Restatement (Second) of Torts §343A (1965).
Thus, in the normal case the duty of landowners to take precautions against natural conditions on the land would be abrogated due to the obviousness of the possibility of harm to invitees. However, as indicated in illustration 5 to comment f of section 343A, such a duty may still be present if the landowner should anticipate the harm despite such knowledge by the invitee. Illustration 5 to comment f provides:
“5. A owns an office building, in which he rents an office for business purposes to B. The only approach to the office is over a slippery waxed stairway, whose condition is visible and quite obvious. C, employed by B in the office, uses the stairway on her way to work, slips on it, and is injured. Her only alternative to taking the risk was to forgo her employment. A is subject to liability to C.” Restatement (Second) of Torts section 343A, comment /, illustration 5, at 221 (1965).
In the present case, even though the risk of harm to plaintiff was obvious, it is arguable that the defendants would have reason to expect that plaintiff would encounter this risk by taking possession of his purchased goods, despite the probability of harm arising from risks inherent in ice and snow, and that such action by plaintiff was entirely reasonable under the circumstances. If debris or other material had accumulated on the ramp, the provisions in the Restatement would have applied (Genaust; Sepesy); the same should apply here to the accumulation of ice and snow. Under the record consisting of the complaint and the deposition of plaintiff, a material question of fact still exists regarding whether defendant should have anticipated the harm that could be caused by snow and ice on its sloping ramp, despite its obviousness, and accordingly should have acted to remedy the condition, warn of its potential, or stop traffic on the ramp while the condition existed.
Accordingly, I would reverse the granting of the summary judgment against plaintiff’s complaint and remand to allow plaintiff the opportunity to present his proof before the trier of fact.