counsel today i am here on behalf of me it's mity green to ask this court to dismiss or to reverse the order dismissing the plaintiff's cause of action in the trial court and remand this case to the trial court for further proceeding there are a number of issues addressed in the context of the briefs but today i'd like to focus on what i believe is the most salient and that being whether or not the snow and ice removal act applies to the facts of this case there are two main theories in the plaintiff's complaint that were filed in this case negligence and willful and wanton and essentially the facts are as follows the plaintiff was walking down the walkway towards the entrance of her condo which she rented from the defendants were brought to the trial court in this matter there is simply no allegation contained in the complaint that the defendants were engaged in snow or ice removal or that the patch was caused to be there as a result of their efforts or omissions in snow or ice removal this matter was brought to this appellate court as a result of an order dismissing the plaintiff's cause of action under a six fifteen been dismissed and i'd like to address the plain language if i might at this point the plain language of the snow and ice removal act essential says that the defendants in this matter or in any matter that involves  attempt to remove snow or ice from sidewalks at a residential property shall be immune from liability except for will form and conduct the operative terms that would like to focus on today in the act are due to the efforts in the removal of ice or snow an injury caused by the axe or omissions in the removal of ice or snow there is simple simply nothing in the allegations of the complaint which is all we have to rely on in this matter that leads anyone to believe that the facts of the complaint apply to the efforts or acts or emissions in the removal of ice or snow everything in the complaint involves my response was this matter based upon the facts being improper maintenance or improperly installed gutters and downspouts has nothing to do with efforts acts or omissions appeal that even involve efforts in snow and ice is essentially a contract between the defendant in their agent to remove snow and ice so procedurally the only pleading  for for the removal of snow and ice and that by itself does not provide us any facts that someone was out there so they had a contrary that they were going to do that correct but there's nothing that indicated anything of that nature was done in relation to the injury your client that correct the other issue that came up in the trial court with regard to the point is allegations relating to the gutters was there was a statement at one point that the gutters themselves were not dangerous and they were like virtually every other gutter in this town and there simply absolutely no fact contained with either within either the motion to dismiss or the plaint complaint that could have led the trial court to come to that conclusion in this case essentially based upon that statement another statements that were made in the ruling plaintiff's complaint was not taken as well pled  there were outside circumstances that were not contained within the briefs or the complaint that were taken into account leading to this order being entered procedurally this was a little odd because there were three act barred the negligence klein gries allowed you allowed your client to replete a willful and wanton which would have been an exception to the immunity zone of the snow and ice removal act probably something you didn't particularly want to do because you felt that there was a negligence cause of action and that the snow and ice removal acted not apply the court found that the allegations of willful and wanton conduct were insufficient dismissed the third complaint the second amended complaint then able to get the information that he wanted me to get that that was the next step ok the there's all the thought what was that information you think you wanted to get essentially on the willful and wanton count he wanted me to be able to plead on behalf of my client that the defendants knew someone had fallen in this area before and that they knew it was dangerous and didn't do anything about it so the dismissal of the original complaint was per to six nineteen when you get to the second amended complaint which is basically putting it all back together again and you have the and negligence counts as well as the willful and wanton counts the motion to dismiss was granted her to six fifteen correct so there hasn't  been if the court were to remain on this on the negligence councell the accepted your argument that the snow and ice removal act didn't apply to bar the negligence clause it wouldn't be that there has already been a complaint that has withstood two six fifteen challenge as to the sufficiency of the factual allegations relating to the negligence cause of action the trial court didn't grant  dismissal of the negligence claim because it was factually insufficient which would be a two six fifteen challenge correct in fact it was a two six nineteen dismissal was that fair it was initially but with regard to the second amended complaint which brings us here i believe that the trial court dismissed the entirety of the complaint honest to six fifteen nominally denoted a two six fifteen dismissal but in fact it was essential a dismissing based on the original grounds of this being affirmative matter that negated the cause of action correct ok so maybe should have been called up to about as i recall it and i may be recalling it incorrectly when we went to the trial court to argue there was a question of what type of motion it was and at that juncture and still i mean that you know when when by a defective condition of the property as opposed to let's put aside snow and ice removal efforts there can be a negligence cause of action stated correct and that's what  probably the best case in this situation in the appellate courts that helps us there's not really a lot of guidance on this particular issue but i think ward amanda third district the ninety four case that i cited in my brief is probably the most closely related downspouts and there was allegations of a natural accumulation in order the court found that the plaintiff had a negligence cause of action because the landowner owner had failed to maintain the building or structure causing water runoff into an area where there such correct that's what you want to retrieve that would be my goal yes and obviously in terms of construction i would need an expert to talk about that but i'm certainly willing to concede that you know there are certain facts that could come up allowed in the snow and ice removal action have been used as a shield as opposed to a sword i understand that the snow and ice removal act is was enacted to protect landowners but it certainly was not an inactive to get rid of judicial fairness and to get rid of every slip and fall case that ever existed on a residential property this is a situation where clearly under the order of the case the plaintiff should have been allowed to engage in discovery there are certain procedures obviously down the line that could've dealt with other issues as they arose but essentially we were a little bit premature and i would ask that this court reverse the order dismissing the obviously if we were going to engage in a to sixteen or to six fifteen or to sixty one thousand motion you know expert discoveries far down the line but in terms of the information that the judge wanted me to obtain in order order to prove or plead that someone else had fallen there and that they knew about that and that they knew that the area was dangerous and did nothing nothing about it and i had half of that but i didn't have any information anyway you were forced to do it but you'd be real happy with the reversal go back and hear that which is go i think i firmly believe that the snow and ice removal act does not apply to the facts of this case i think that's the most salient issue i think there were issues in terms of the willful wanton count as it was but i think and believe essentially that that first issue is what rat if we can answer that question yes so you want a trial of the negligence script i would like a trial in the negligence count and the legislature wasn't happy with that so they passed the floor and ice removal act to encourage residential property owners to clean off known ice from sidewalks abutting residential property and to do so they limited liability to wall from what misconduct that act went into effect in one nine hundred seventy nine the act as read as completely indifferent as to how the ice and snow gets there it does not make any reference to natural cumulation after accumulation or anything else i think we can presume that the legislature was aware of the natural unnatural accumulation rule before they knocked of this statute and in acted it to create an exception or to repeal that rule with regard to sidewalks abutting residential property so it is your position that the snow and ice remove o condominium i believe up in the chicago area the condominium association as here had a contract for flow and ice removal with i believe several companies however this contract according to the plans allegations did not cover a specific area the plaintiff apparently felt like a back stairway or something like that not the major entrance to the house and according to the allegations in the cost the the snow or ice she fell or the ice she fell long came from a melted tried to remove this particular section of ice where she fell the court and up a coffee rejected that and they held that so long as the evidence showed that the property owner had a reasonable plan for snow and ice removal in place the fact that they didn't attempt to remove snow and ice in a particular place did not take them outside the act on the words the courts said they were not going to micromanage you'll be the landlords isn't it correct that in that case basically you had the reform due to removing snow and ice from other areas right they were placed in a different area and a point to fail as a result of those mounds that they the ice may not have been there except for the fact that someone had created these huge snow piles which had melted and we froze well of course in this case that we're talking about we know that there were actual removal efforts going on related to record goes and i told personally whether any ice and snow removal at first took place within some period of time but i think the the think by the precaution to court is a logical one and it does implement the intent of the theft use this statute like us all number if that if you see these days also contains a prefatory intent by the legislature what they intended to do i realize that doesn't if it police will feel wanted i tacked that pleading with the six fifteen motion attacking the sufficiency of the allegations the third motion it was a little sloppy i will admit but it was clear the point that the plaintiff was just setting this up for an appeal and in order to argue with unity in the snow and ice or don't you have to claim that you have to assert that the plate it was claiming that the snow and ice that were involved in this case because  injury were were in place because of efforts to remove it i don't believe so i believe that is if you read the exact language of the act and in light of the legislative intent residence or natural cumulation of ice and snow by permitting unnatural humiliations due to the fact of construction or proper sufficiently some promises so that's as recently as nine years ago second district reiterated this long nice snow and ice remove or grants immunity to a defendant who let's assume and i think we have to assume that we have to  condition and that's where her client fell in this chain would have a cause of action but for your claim that the snow and ice removal air immunizes you and if your abolish the unnatural cumulation cause of action due to defective construction as long as any effort was made by the landowner to remove snow and ice even if it had nothing to do with the spot think that's what you're arguing they intended to say i'm arguing that if we're talking about snow or ice if it's a sidewalk a buddy in residential property the requirements of the act or a map in this should be applied and if there was a plan in place to remove the efforts were utilized in this case or the breeders of within the immunity to berber there i believe no i don't leave i have to show that the guy was out there a week before the day before i believe what i have to show is we had in place a justice holder white it indicated that there were no on ice removal efforts in other parts of the location that resulted in the snow and ice where the plaintiff fell in that case absent in this case but let's talk about the removal efforts and what the first district in passing found to be removal efforts and i think we need to emphasize that it's called the snow and ice removal act not the snow and ice act so in the preamble to the act the legislature indicated that they found it undesirable for any person to be liable for damages due to his or her efforts in them or removal of snow or ice from such sidewalks in a cop's gate you're honing in on some language where the first district found that contracting with a third party for the snow and ice removal constituted removal efforts here the contract for snow removal was entered into maybe in october of two thousand and nine it was of the for the snow and ice weather right ok the accident the slip and fall occurred in february of two thousand and ten so we're talking about months after the contract and no evidence on the plating at the plating stage that there were any actual physical snow and ice removal efforts do you really believe that simply contracting for the removal of snow on ice constitutes a removal effort under the  act the contract which was attached to the original motion to dismiss was in effect over this period of there with a bridge that maybe never showed up well again i know you're saying the legislature basically said we want you to enter into these do something what if i told my thirteen year old ok for you to get your allowance you've got to shovel the walk whenever it's knows by now immunize myself from any negligence claim because i entered into a contract with someone for trying to dance to the plate to find a claim the snow and ice road or applies and it appears to me that you have a gross the threshold of demonstrating that any effort was ever made the fact that you have a contract which is a statement between the defendant and some third party that yeah we have an intention trust us we're going to do this they might have breached this who knows what might happen i mean don't you have to provide an affidavit or some support  to your motion to demonstrate that the basis of your claimed immunity actually occurred your honor i think if you take that approach you're largely undoing what the legislature attempted to do in every case where there is date whatever it was a month before here but but then again how you're going to somewhat that a bit but then again you're having to the side or somebody is having to decide on a motion to dismiss what was adequate or should they have done better should you have call point in the pleadings i don't see that we have anything other than a statement an aspiration of this is what you intend to do perhaps if it's convenient and the coffee court held that that was sufficient numbers cascade there was no clearly that was the case was that at some point it was made but it doesn't and that was before the court in that case was that right right and it's not before the court here that anyone tried to do anything we have in the end before the court of the court in this case that we had an arrangement made that a certain amount of snow and ice work to be present the contractor would come out and deal with it and i believe that is what the legislature intended to do to make things relatively simple relatively straightforward without getting and through this natural and think a big deal i don't understand what we hear here no i agree and one of the first things mr robson when he got up here is he used to advise clients to do nothing and i think if we take his argument that just by having a contract to remove snow that the person then can do nothing and be immune i think that's absurd compared to what the legislature intended one of the things that he also mentioned was that the  as to how the snow or ice got there and i don't think that's the case i think there's really two prongs i think the first is that there were actual efforts made to remove the snow or ice and the second being and i want to focus on seventy five slash to the property owner shall not be liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk and here's where it gets important resulting from his or her acts or omissions unless the alleged misconduct will form one and it's not an different test how it got there it's absolutely not the snow or ice in order to be removed had to be caused by the acts or omissions and quite simply in the complaint that was filed in this matter there is no allegation that leads us summary judgment case clearly they had a lot more information that we are privy to here but in that case there were actual allegations and allegations and evidence that the snowplowing was engaged in and that that snow plowing caused the snowman's which then led to the condition of the ice around the snow mounds which then led the plaintiff to encounter the ice and fall the efforts in the snow and ice removal actually caused the condition that the plaintiff fell off and that's just there's no facts in this case that are similar to that the facts in this case are related to building construction building maintenance and in fact the defendants did nothing the their own agent the person that they contracted with to maintain this area stated that there was problems with the gutter and that's alleged in the complaint and then they did nothing he stated that there was problems with the gutter in this exact area that work was causing  we came down onto the sidewalk and they did nothing and that's exactly the reason why i'm asking this court to remand and allow the negligence cause of action to stand so that we can go and do discovery and get a trial on the negatives count the snow and ice removal act simply does not of much apply to these facts