1 Accord ingly , we ref

er to poin ts raised in Hartma

n's brie f as those

raised b y de fendant s. FIFTH DI

VISI ON July 25, 2008

No. 1-07-0819 DONALD E. FL

IGHT, ) Appeal from the ) Circuit Court of Plaintiff -Appella nt, ) Co ok Co un ty. ) v. ) No. 04 L 2729 ) AMERICAN COMMUNI TY MANAGEMENT, INC., ) WESTGATE V

ALL EY TOWNHO MES ) CONDOMINI

UM ASSOCIATI ON, and HARTMAN ) AND SONS LANDSCAPI NG, INC., ) The Hono rable ) Elizabeth

M. Budzins ki, Defend ants-App ellees. ) Judge Presi ding. PRESID ING

JUSTICE

FIT ZGERAL D SMITH deliver

ed the opi nion of the

court: In this slip and fall personal injury action, plaintiff Donald Flight appeals from a g rant of summary judgmen t in favor of defe ndants Ame

rican Com

munity Manag ement, I

nc., Westg ate Valley Townhomes Condominium Association, and Har tman & Sons Landscaping , Inc. On appeal, he contends the circuit court improperly based its ruling on the Snow and Ic e Removal Act (Act) (745 IL

CS 75/0.01 et seq . (West 2006)), which he claims is in derogation of the common la

w. Defe ndant Ha rtman & S ons La

ndscapin g, I nc. (Ha rtman), has filed o

ne response brief and defendants American Community Management, I

nc., and Westgate Valley

Townhomes Condominium

Associat ion have f iled a se parate response adopting Hartman 's. 1 We affir

m. Plaintiff was an ow

ner and r esident o f a condo minium in the Palos Heig

hts, I llinois, subdivision of Westgate Valley Townhomes. Defendant Westgate Valley Townhomes Condominium

Associat ion (Assoc iation) w as an org anization o f the con dominium ow

ners,No. 1-07-0819

2

defendant American Community Management, I

nc. (ACM), was the management company for the condominium complex, and defendant Hartman was the contractor hire d to remove snow and ice f rom th e com

mon a reas of the comp lex. On January 8, 2004, at about 6 p.m., plaintiff exited his car a nd was walking on the driveway to his and a

neighboring unit when he alleg edly slipped and fe ll on ice. It was dark outside and the day ha

d been cold and clear. At the time of the acc ident, plaintiff believes, the temperature was below freezing. Plaintiff f elt his right foot "give way " and he slid forward; he believes that he slipped on ice. He did not recall seeing any snow on the drive

way or se eing any snow melting. Plaintiff recalled the last snowfall before his accide nt took place on January 3, 2004. He believed that the day

after the snowfall there had been " a slight rain." In March 2004, plaintiff filed a single-count action against defe ndants alleging they

were negligent in allowing a " snowy and/or icy area to exist on the only pathway" to his condominium unit and in allowing the area " to remain c overed with snow and/or ice," among othe r things. He alleged that defendants' ne gligence caused him to slip and fall, and ther eby suffe r personal injuries. Plaintiff subsequently amended the complaint to include a second count directed specific ally

at the re moval of s now by

Hartman . In a

ddition to r

aising e ssentiall

y th e same allega tions initia

lly, in the ame

nded comp laint plai

ntiff als o alleg ed that Ha

rtman fa iled to ap ply a de-ic ing agen t to k eep th e area fr om fre ezin g. In 20 06, Hart

man filed a motion for summary

judgmen t, as did th e other d

efenda nts shortly thereaf

ter. Among the undisputed facts were the f ollowing: plaintiff did not recall seeingNo. 1-07-0819

3

any snow melti

ng on the day of his ac cident, n

or did he r

ecall a ny s now on tha

t day ; the last snowfall that plaintiff recalled was approximately five days be fore, on January 3; plaintiff did not recall any depressions or holes in the driveway that would cause it to retain water; and he believed that, since the snowfall on January 3, there had been "a slight ra in." In its motion, Hartman allege d that it wa s hired to remove s now afte

r a snowf all of mor e than two

inches, b ut it

never sa lted sidew alks or dr

iveway s; rather , any

salting or de-ic ing was

done only

upon req uest of ACM. Hartman based its motion on the absence of any duty to remove natura

l accumulations of snow or ice, and the absence of any duty other than that def

ined by contrac

t. Further, Hartman urged applica tion of pr ovisions of

the Act th at remov e liability for per sonal inju

ries alle gedly caused by ic

y conditions upon a walkway absent willful and wanton misconduct because plaintiff

wa s u si ng th e d ri ve wa y as a w al kw ay. On March 2, 2007, following a hearing , the court entered written orders g ranting the two separa te motions f

or summar

y ju dgment i n favor o f defen

dants. Pla

intiff time ly f

iled this a ppeal. On appeal, plaintiff contends that the court failed to follow rules of statutory construction concerning strict construction of the Act, which he further claims is in derogation of the common law and was improperly

applied here. The purpose of a summary judgment motion is to determine whether a genuine issue of material fact exists which should be tried. Purtill v. H ess , 111 I ll. 2d 229, 2 40 (1986) ; Crane v. Triangle Plaza, Inc. , 228 Ill. App. 3d 325, 328 (1992). Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the a ffidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgmentNo. 1-07-0819

4

as a matte r of law. " 735 I

LCS 5/2 -1005(c ) (West 200 6). The g rant of s ummary judgmen t is reviewed de novo

. Judge-Zeit v. General Parking Corp. , 376 Ill. App. 3d 573, 578 (2007); McBride v. Taxman Corp. , 327 Ill. App. 3d 992, 995 (2002). Under se ction 1 of

the Act, i t is decla red publi c policy

that "ow ners and others r esiding in residentia l units b e encouraged to cl ean the sidew alks abutt ing their resi dences of sno w and ice." 745 IL CS 75/1 (West 2006). Section 1 provides that "[t]he General Assembly, ther efore, 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 sidewa lks, except for acts which amount to clear wrongdoing, as described in sec tion 2 of this Act." 745 IL CS 75/1 (West 2006). Section 2 of the Act impose s liability

for per sonal inju

ries only where th ere is wi llful or w anton con duct: "Any ow ner, lessor, occupant or other person in char ge of any residential property, or a

ny ag ent of or other person engag ed by any such party, who r

emoves or attempts to remove snow or ice from sidewalks abutting the prope rty 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 alleg ed misconduct was willful or wanton." 745 IL CS 75/2 (West 2006). Defend ants cla im that summa

ry judgmen t was prop er beca

use, amon

g other things, plaintiff failed to provide any evidence that he slipped on any thing other than a natural accumulation of ice. We agree. Defendants acknowledge tha t the court's written order stated that the summary judgment was base d on the Act. Howeve r, they also note that review is de novo and this court may af firmNo. 1-07-0819

5

the order on any

basis. See Aetna Casualty & Surety Co. v. James J. Benes & Associates, I nc. , 229 Ill. App. 3d 413, 417 (1992). With that in mind, defendants assert that the order could have been granted on plaintiff's fa ilure to present any

evidence that his fall occurred on any thing other than a natural accumulation of ice. At the summ ary

judgmen t stage , althoug

h the plai ntiff nee d not prove

his cause , he must present some evidentiary

facts to support the elements of his cause of action. Aetna Ca sualty , 229 Ill. App. 3d at 416. See also Hanna v. Marshall Field & Co. , 279 Ill. App. 3d 784, 790 (1996). T o state a

cause of action f or neg ligenc e, the pla

intiff mus t alleg e facts

sufficie nt to show the e

xistence o f a duty, a brea

ch of tha t duty , and injur

y to the plain tiff whic h is proximately caused by

that breach. Mt. Zion State Bank & Trust v. Consolidated Communications, Inc. , 169 I ll. 2d 110, 1 16 (1995) ; Crane , 228 Ill. App. 3d at 328. The general rule is that there is no duty to remove natural accumulations of snow or ice. McBride , 327 I ll. App. 3d at 996; Eichler v. Plitt Theatres, Inc. , 167 Ill. App. 3d 685, 688 (1988). Where a management company merely re

tains a snow removal contractor on behalf of the owne r, it does not have a contractual obligation to remove snow or ice

. McBride , 327 Ill. App. 3d at 996-97. Further, where a contra ctor has entered into a contract to undertake snow removal, the scope of the duty is dete

rmined by the terms of the contract. McBride , 327 Ill. App. 3d at 996- 97; Eichler , 167 Ill. App. 3d at 689. Where a duty has been imposed on a snow removal contractor, the duty

was only not to neg ligently re move snow by cre ating or aggra vating an unnatural accumulation of ice and snow. McBride , 327 Ill. App. 3d at 996. Rather, the plaintiff must, to prevail in his action, show that the ice upon which he allegedly fell was an unnaturalNo. 1-07-0819

6

accumulation created by

the defendant. Eichler , 167 Ill. App. 3d at 692. In the instant case, as def endants point out, according to the record, Ha rtman cleared the snow that fell on or about January 3 pursuant to its contract and plaintiff failed to present any evidence to show that Hartman did so improperly . Further, there is nothing in the record to make the requisite showing that the ice upon which plaintiff fell was an unna tural accumulation. See Eichler , 167 Ill. App. 3d at 692. To the contrary , the record shows that plaintiff concedes that after the snow removal, it had rained and the ra in froze. Therefore, summary judgment was properly g

ranted on the basis of an absence of showing of an unnatural accumulation. Given this conclusion, we address only briefly plaintiff' s contention that the Act was improper ly a pplied. Pla

intiff ba ses his co ntention that the Ac t does not a pply primaril y on his insistenc e that a d

riveway is distinct

from a sid

ewalk a nd, thus, th

e locatio n of his ac cident di d not come within the purview of the Act. He asserts that a " driveway" is defined as a road "for driving on," whi le a "sid

ewalk" is define d as a "p aved wa lkway " or "p ath for p edestria ns." Yet, plaintiff allege s that he w as, in ess ence, u sing the drivewa y a s a walkw ay

when he f

ell. This court has previously a ddressed contentions almost exactly the same as that raised by plaintiff. In those instances, this court has re jected arguments, similar to plaintiff's, that the Act did not apply to bar claims conc erning a fall on a "walkwa y" ra ther than a sidewalk or that the sidewalk must be a public sidewalk bordering the residential pr operty ra ther than a walkway

en ti re ly o n p ri va te pr op er ty ( Bremer v. Le isure Acres-Phase I I Housing Corp. , 363 Ill. App. 3d 581, 584 ( 2006); Kurczak v. Cornwe ll , 359 I ll. App. 3d 1051, 1057 -59 (2005 )); it has also rejected contentions that the Act did not apply where the fall took place on a "stoop" that wasNo. 1-07-0819

7

part of a paved wa

lkway from the b

uilding t o the par king lot ( Yu v. Kobaya shi , 281 Ill. App. 3d 489, 492-93 (1996)). In so dec iding, the court has considered other paved sur faces upon which the plain tiff walk ed and fo und eac h such wa

lkway to be suff

iciently akin to a " traditional" sidewalk such that the Act applied. Kurczak , 359 I ll. App. 3d at 1058; Yu , 281 Ill. App. 3d at 493. Given plaintiff's allegations that he was " walking to his unit" on the driveway , under Bremer , Kurczak , and Yu , the driveway was sufficiently a

kin to a sidewalk such that the application of the Act was proper. Here, the Act was properly

applied to bar plaintiff's claim. Finding that the Act was properly applied as a basis for granting summar y judgment, we

need not reach plaintiff's related conte ntion that the Act is in derogation of the common law and, thus, we reject plaintiff's sugge stion to consider the issue as one of first impression. Therefore, because ther

e is nothing in the record to show that there was any unnatural accumulation of ice on the driveway surface upon which plaintiff allegedly fell, the court properly g

ranted summary judg

ment in favor of defendants. According ly, the orders g ranting summary judgme

nt are affirmed. Affirmed. GALL AGHER and O'MARA FROSSARD, JJ., concur.No. 1-07-0819

8 __________________________________________________________________________________________________________________________ REPORTER OF DECISIONS - ILLINOIS APPELLATE CO URT

(Front Sheet to

be Attached to Each Case)

_________________________________________________________________________________________________________________________ Please use

the follow

ing form Donald E. Flight, Plaintiff -Appella nt,

v. American Community Manag ement, Inc., Westgate Valley Townhomes Condominium Association, and Hartman and Sons Landsc aping, Inc.,

Defend ants-App ellees.

_____________________________________________________________________________________________ No. 1-07-0819 Docket No. Appellate Court of Illinois COURT First District, FIFTH Division Opinion Filed July 25, 2008 (Give month, day and year)

__________________________________________________________________________________________ PRESIDING JUSTICE JAMES FITZGERALD SMITH DELIVERED THE OPINION OF THE COURT: JUSTICES GALLAGHER and O'MARA FROSSARD, JJ. concur. Lower Court and Trial Judge(s) in form indicated in margin: APPEAL from the Circuit Court of Cook Appeal from the Circuit Court of Cook County. County; the Hon________ Judge Presiding. The Hon. ELI ZABETH M. BUDZ INSKI Judge pres iding.

__________________________________________________________________________________________________________________________ Indicate i f attorne

y repre sents A

PPELLANT S or APPELL EES and include

attorney 's of c ounsel. Indic ate the w ord r FOR APP ELLANTS NONE if not represe

nted. John Do e, of Chicago For APPELLE

ES, : APPELLANT: JOSEPH A. TERC, A rlington Heights, IL Joseph A. Terc.

_________________________________ __ Smith and Smith of Chicago , APPELLEES A MERICAN

COMMUNIT

Y MANA

GEMENT , INC. and W

ETGA TE VAL LEY TO WNHOMES CONDOMIN

IUM ASSO CIATI ON: MICHA EL W. R ATHSA CK, Chicag

o, IL Mark

W. Reink

e and Micha

el W. Rathsack. APPELLEE HARTMAN AND SONS LANDSCAPI NG, INC.: BRUC E FARREL DORN & ASSOC IATES, Chicago , IL Ellen J. O'R ourke and Kenneth E . Klimczak.

__________________________________________________________________________________________________ ( Joseph Brown, of counsel ) Add attorne

ys for thirdparty a ppellants a

nd/or appellees.No. 1-07-0819

9