## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Greene v. Wood River Trust , 2013 IL App (4th) 130036

Appellate Court Caption MI TZ I O. GREENE, Plaintiff-Appellant, v. WOOD RIVER TRUST; TAYL OR REAL TY, I

NC., d/b/a WOO D R I VER TRUST; RI CHARD W. TAYL OR, d/b/a WOOD RI VE R TRUST; and RUSS EL L H. TAYL OR, d/b/a WOOD RIVER TRUST, Def endants-A

ppellees, and RE/MAX REAL TY AS S OC IATES, d/b/a WOOD RIVER TRUST; RENEE TAYL OR, d/b/a WOOD RIVER TRUST; and J ASON W

. OAKES, Respondents in Discove ry

.

District & N o. Four th District Docke t No. 4-13-0036

Filed October 25, 2013

Held (Note : This syl lab us

c ons ti tut es no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action for the injuries plaintiff sustained when she slipped and fell

on an icy walkwa

y at her lease d residenc e, the trial cou rt properly dismiss ed her willful and wanton claims and her reque st fo r addit ional time to locate individuals who could support her claims, since plaintiff’s alleg ations did not show a deliberate intention to harm or a conscious disreg ard for plaintiff’s welfa re and she had 11 months to find supporting witnesses, but the dismiss al of her neg lige nce claims pursua n t to the Snow and I ce Removal Act was reve rsed, since the Act does not provide immunit y for cl ai ms based on an icy condition cause d by defe ctive construction or imprope r or insuff icient maintenanc e.

Dec ision Under Review Appea l from the Ci rcuit Court of C hampaign County
, No. 12-L -14; the Hon. Michae l Q. J ones, Judge, pr esiding

.J udg ment Affir med in part a

nd reve rsed in par

t; cause r emande d with directions.

Counsel on Appea l Miranda L

. Soucie (argued), of Spiros L aw, P.C., of Danville, for appellant.

Michae l E. Raub (argued), of Hey l, Roy ster, Voelker & Allen, of Urba na, for a ppellees.

Panel J USTI CE HARRI S delivered the judgme nt of the cour t, with opinion. Presiding J ustice S teig mann and J ustice Holder Whit e concurre d in the judgme nt and opinion.

OP INION

¶ 1 On Fe bruar

y 12, 2010, plaintiff, Mitz i O. Gre ene, slipped and fell on an icy walkwa y near the entra nce of a residenc e she l eased from defe ndants, Wood River Trust; Taylor Realty
, Inc., d/b/a/ Wood River Trust; Richard W. Taylor, d/b/a Wood River Trust; and Russell H. Taylor, d/b/a Woo d River Trust. After plaintiff filed a complaint alleg ing neg lige nce, defe ndants moved to dismiss plaintiff’s complaint pursuant to section 2-619 of the Code of Civil Procedur e (Code) (735 I L CS 5/2-619 (West 2 0 1 0 )), arguing plaintiff’s neg lige nce cl ai ms wer e barred by the S now and I ce Removal Act (Act) (745 I L CS 75/1 et s eq. (W es t 2010)). The trial court dismiss ed plaintiff’s complaint but allowed plai n t iff to amend to alleg e will ful and wanton misconduct
, an ex ception to the i mmuniti es otherw ise provided by the Act. Def

endants moved to dismiss plaintiff’s first amende d co mp l ai n t pursuant to section 2-615 of the Code (735 I L CS 5/2-619 (W es t 2010)), which the court grante d. In addition, the court allowed plaintiff to fu rt h er am end her complaint to alleg e willful and
wanton misconduct. Def

endants moved to dismiss plaintiff’s second am en d ed complaint pursuant to sec tion 2-615 of the Code, whic h the cour t gr anted. ¶ 2 Plaintiff a

ppeals, arguing the trial court err ed in (1) deter mining that the Act barr ed her
neg lige nce claims ag ainst defe ndants, (2) dismiss ing her seco n d amende d complaint beca use she properly pled a willful and wanton exception to the immunit y otherwise provided by the Act (745 I L CS 75/2 ( West 2010))
, and (3) denying her reque st for additional time to locate individuals to aid in providing fa ctual support for her cla ims. W e af firm in part, re verse in part, a nd rema nd for f urther pr ocee dings.

¶ 3 I . BA CKGROUND ¶ 4 On J anuar

y 23, 2012, plaintiff filed a complaint in ne g lige nce alleg ing that she slipped

-2-and fell near the entra nce of a residenc e she lease d from defe ndants due to the icy condition of defe ndants’ walkwa

y

. Plaintiff alleg ed sever al theories of neg lige nce conce rning the walkwa y , including that d ef

en dants neg lige ntly failed to (1) provide a safe walkwa y in violation of the Premises L iability Act (740 I L CS 130/1 to 5 (West 2010)); (2) maintain and provide a properly pitched overhang roof; (3) provide properly hung and si zed gutters; (4) provide properly hung and siz ed d o wn s p outs; (5) provide an adequate number of downspouts; (6) allow proper draina g e to oc cur from the over hangroof onto the wa lkway ; (7) corr ect or repa ir the gutters, downsp o u t s, and overha ng ; (8) keep the gutters and downspouts “fr ee and clea r at all times of st o re d materia ls”; (9) keep the gutters and downspouts “fr ee and clea r at all times of ice” ; and (10) keep the gutters an d d o wn s pouts “fr ee and clea

r at all times of mud and ref use.” As a proxi mate result, plai n t i ff alleg ed, defe ndants’ neg lige nce resulted in an unnatura l acc umulation of water on a walkwa y which froze and cause d plaintiff t o slip an d fa l l
, s u ffe ring “serious and permanent inj uries to her shoulder.” ¶ 5 On Marc h 2, 2012, defe ndants filed a motion to dismiss under section 2-619(a )(9) of the Code, arguing defe ndants wer e immune from liability under the Snow and I ce Removal Act. Def endants attached to their m otion a contract, in eff ect at the t ime of pl aintiff’s fall, with J ason Oake s for snow and ice remova l at multipl e locations, including the residenc e plaintiff lease d from defe ndants. Following a hearing, the trial court grante d defe ndants’ motion and dismiss ed plaintiff’s complaint, finding the neg lige nce claim was barr ed by the Act. Plaintiff
soug ht leave to file an amende d complaint to alleg e willful and wanto n misconduct, an exception to the immunit ies otherwise provided b y t h e Act. The court grante d plaintiff’s motion. ¶ 6 On May 22, 2012, plaintiff filed her first amende d c o mp lain t a ll e g in g defe ndants eng ag ed in willful and wanton misconduct. Plaintiff’s willful and wanton claim reiter ated the
neg lige nce claim alleg ations, adding that defe ndants ac t ed with “utter indiffer ence to or conscious disreg ard” and “with a r eckle ss disre g ard for the safe ty” of plaintiff. Def endants moved to dismiss plaintiff’s first amende d complaint pursuant to section 2-615 of the Code (735 I L CS 5/2-615 (West 2010)), arguing plaintiff’s al l egations that defe ndants failed to perf orm routine maintenanc e of gutters and downspouts did n o t c o n s ti tu te w illful and wanton misconduct. Following a hearing, the trial court grante d defe ndants’ motion and dismiss ed the first amende d complaint. The court allowed plainti ff’s motion to further amend her complaint to alleg e willful and wa nton misconduct. ¶ 7 On August 30, 2012, plaintiff filed her second amende d complaint. This time, plaintiff

rea sserted her orig inal neg lige nce claims in counts I
, I I I
, V, and VI I
, and reiter ated her willful and wanton alleg ations in counts I I
, IV, VI
, and VI I I

. Def endants moved to dismiss plaintiff’s second amende d complaint pursuant to section 2-615 of the Code, arg uing (1) the trial court had alre ady found plaintiff’s neg lige nce claims barr ed by the Act and (2) plainti ff’ s alleg ations of willful and wan t o n m i s co n duct wer e still not sufficie nt to state a cause of action. Plaintiff stated that she incorporated her “prior arguments made befor e the court.” T h e co u rt g rante d defe ndants’ motion and dismiss ed the second amende d complaint with prejudice

. ¶ 8 This appea l followed.

-3-¶ 9 I I . ANALYSI S

¶ 10 On appea l, plaintiff argues the trial court err ed in deter mining t h at th e Act barr ed her

n eglig ence claims ag ainst defe ndants. Specifica lly
, plaintiff argues the Act does not ap p l y wher e the unnatura l a ccumulation of ice was cause d by defe ctive construction or improper or insufficie nt maintenance of the pre mises, and not by snow and ice remova l effor ts. ¶ 11 After plaintiff filed her initial complaint alleg ing neg lige nce, defe ndants filed a motion
to dismiss under section 2-619(a)(9) of the Code, arguing that plaintiff’s complaint was barr ed by the Act. Section 2-619 allows for the involuntary dismiss al of a cause of action based on cer

tain defe cts and defenses, including on the gr ound “the claim asser ted aga inst defe ndant is barr ed by other aff irmative matter avoiding the leg al eff ect of or defe ating the claim.” 735 I L CS 5/2-61 9 (a)(9) (West 2010). The dismiss al of a complaint pursuant to section 2-619(a )(9) is reviewe d de novo

. Lacey v. Village of Palatine
, 232 I ll. 2d 349, 359, 904 N.E.2d 18, 24 (2009)

. ¶ 12 The Snow and I ce Re moval Act conta ins two releva nt parts, which state : “§ 1. It is decla

red to be the public policy of this State that owner s and others residing in residential units be encourag ed to clea n the side walks abutting their residenc es of

snow and ice. The Gene ral Assembly
, there fore
, deter mines that it is undesirable for any person to be found liable for damag es due to his or her eff orts in the remova l of snow or ice from such sidewalks, except for acts which amount to clea r wrong doing, as described in Section 2 of this Act. § 2. Any owner , lessor, occupa nt or other person in charg e of any residential proper ty , or any ag ent of or other person eng ag ed by any such party , who remove s or attempts to

remove snow or ice from sidewalks ab u tting the proper ty shall not be liable for any persona l injuries alleg edly cause d 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 I L CS 75/ 1, 2 (West 2010). ¶ 13 The I llinois leg islature enac ted the Snow and I ce Removal Act to provide immunit ies and defe nses t o “owne rs and others residing in residential units .” 745 I L CS 75/1 (W es t 2010). By shielding residential owner s from neg lige nce claims under the Act, the I llinois leg islature
soug ht to encoura g e the c leaningof snow and ice from sidewalks abutting residences. 745 I L CS 75/1 (West 2010). I n i n t erpreting a provision of the Act, as with any statute, our primary g oal is to asce rtain and g ive eff ect to the intention of the leg islature. Ries v. City of Chicago
, 242 I ll. 2d 205, 215-16, 950 N.E.2d 631, 637 (2011). We seek that intent first from the plain languag e used in the statute, and if that languag e is clea r and unambiguous, we are not at l iberty to depar

t from i t s plain meaning

. Ries
, 242 I ll. 2d at 216, 950 N.E.2d at 637. We revie w de novo the interpre tation of a statute as a question of law. Abruzzo v. City of Park Ridge , 231 I ll. 2d 324, 332, 898 N.E.2d 631, 636 (2008). ¶ 14 Under the common law, a landowner has no duty to remov e n at u ra l acc umulations of

snow or ice ( Claimsone v. Professional Property Managem ent, LLC
, 20 11 I L App (2d) 101115, ¶ 18, 956 N.E.2d 1065), but excepti o n s have been made wher e some other act of
neg lige nce c ontributes to the condition.

-4-“One is g ener ally not liable for injuries cause d b y n at ura l acc umulations of ice or

s n o w, and there is no [common law] duty to remove natura l acc umulations of ice or

snow. [C itation.] Howeve r, a [c o m m o n l aw ] duty may arise on the part of the defe ndant-pre mises owner , if the defe ndant voluntarily undertook the task of removing
natura l acc umulations of ice or snow and did so neg lige ntly o r i f the defe ndant was responsible for

an unnatur al ac cumulation of ice or snow. L iability will be imposed on

a defe ndant wher e t h e p l ai n t i ff shows an injury that was cause d by such an unnatura l

acc umulation of ice or snow. [C itation.] ” Ordman v. Dacon Managem ent Corp.
, 261 I ll. App. 3d 275, 279, 633 N.E.2d 1307, 1310 (1994)

. ¶ 15 Fur

ther, an ex ce p t i o n t o t h e co m m o n l aw “n o du ty” rule is made wher e “the

acc umulation o f i ce or snow become s unnatura l due to the design and construction of the premises.” McLean v. Rock ford Country Club
, 352 I ll. App. 3d 229, 233-34, 816 N.E.2d 403, 408 (2004). “The construction and maintenanc e of a landowner ’s proper ty are matt er s wi t h in the landowner ’s co n trol. [C itation.] There fore
, I llinois courts have noted that ‘[i] t is not imposing an undue burden on [the landowner ] to require him not to add to the difficulties fac ing I llinois residents from natura l acc umulations of ice and snow by p er m i t t i n g unnatura l acc umulations due to defe ctive construction or improper or ins u ff i cient maintenanc e of the premises.’ ” McLean
, 352 I ll. App. 3d at 23 4
, 8 1 6 N.E.2d at 408 (quoting Bloom v. Bistro Restaurant Ltd. Partnership
, 304 I ll. App. 3d 707, 711, 710 N.E.2d 121, 123 (1999) ). ¶ 16 The Snow and I ce Rem o v al Ac t wa s enac ted in derog ation of the common law. See Gallagher v. Union Square Condominium Homeowne r’s Ass’n
, 397 I ll. App. 3d 1037, 1043, 922 N.E.2d 1201, 1207 (2010) (“The Act is in d er o gat i o n of this common law in that it provides immunit y for injuries sustained by a person as a result of the attempted clea ring of sidewalks abutting the proper ty .”). “[A] court cannot construe a statute in derog ation of the

common law beyond what the words of t h e statute expresses [ sic ] or beyond what is

nece ssarily implied from what is expressed.” Adams v. Northern Illinois Gas Co.
, 211 I ll. 2d 32, 69, 809 N.E.2d 1248, 1271 (2004). “Any leg islative intent to abrog ate the common law must be clea

rly and plainly expressed, and we will not presume from ambiguous languag e

an intent to abrog ate the common law.” Heider v. Knautz
, 396 I ll. App. 3 d 5 5 3
, 5 6 1
, 919 N.E.2d 1058, 1065 (2009). The repe al or pree mption of a common law reme dy by implication is not favor ed. Callahan v. Edgewater Care & Rehabilitation Center, Inc.
, 374 I ll. App. 3d 630, 634, 872 N.E.2d 551, 553 (2007). An act in derog ation of the common law must be construed strictly ag ainst the entity claimingimmunit y

. Van Mete r v. Darien Park District , 207 I ll. 2d 359, 368, 799 N.E.2d 273, 279 (2003). ¶ 17 Her e, the Act provides owner s, lessors, occupa n t s , o r o t h er p er s o n s i n ch arge of resi d en t i al proper

ty immunit y for injuries cause d by snow and ice remova l eff orts, unless their acts or omissions constitute willful and wanton m i s co n du ct. 745 I L CS 75/2 (West 2010). The leg islature inte n d ed for such persons to be immune from liability wher e they
neg lige ntly remove or att em p t to remove snow or ice from a residential walkwa y

. This
repr esents a clea

r conflict with common law neg lige nce claims, where l i ab ility may be imposed on an owner for injuries cause d by an owner ’s voluntary and neg lige nt remova l of

-5-ice or snow, causing an unnatu ra l acc umulation. We presume the leg islature was familiar

with the aforementioned common law cause of action. S ee People v. Hickm an , 163 I l l

. 2d 250, 262, 644 N.E.2d 1147, 1153 (1994) (“it must be presumed that the leg islature acte d with knowledg e of the preva iling case law”)

. It is appare nt then the Act wa s intended to modify

common law liability for owner s and others re s i d ing in residential units who neg lige ntly

remove or attempt to remove snow or ice from sidewalks abutting their proper ty

. 745 I L CS 75/2 (West 2010). ¶ 18 Her e, plainti ff alleg es her injuries wer e not the result of any eff orts to remove snow or ice from a walkwa

y , but instead resulted from an icy condition caused b y the defe ctive condition of the building adjac ent to the walkwa y

. There fore
, the Act does not apply to bar her neg lige nce claim. The plain languag e of the Act indicates it does not apply to neg lige nce actions for injuries cause d by defe ctive construction or improper or insufficient maintenanc e of the premises. Instead, the Act applies only to immuniz e an owner ’s neg lige nt eff orts to

remove snow and ice from re sidential sidewalks. ¶ 19 Were we to hold that the Act also a pplied wher e an unnatura l acc umulation of i ce was

cause d by defe ctive construction or improper or insufficient maintenanc e of the premises,

we would be repe aling a common law reme dy by i mp l i ca t i o n, which is not favor ed. See Ca l l a h a n , 374 I ll. App. 3d at 634, 872 N.E.2d at 553. Acc ording ly
, we conclude th at t h e plain languag e of the Act does not provi d e i m m u n i t y for injuries if the unnatura l

acc umulation of ice wa s ca u s ed by defe ctive construction or improper or insufficient maintenanc e of the premises, a nd not snow and ice remova l effor ts. ¶ 20 Def

en d an ts cite Pikovsk

y v. 8440-8460 North Skokie Boulevard Condominium Ass’n
, 2011 I L App (1st) 103742, 964 N.E.2d 124, and Gallagher in support of their argument that the Act applies. Howeve r, these case s are clea rly distinguishable. The plaintiffs in Pikovsk y and Gallagher alleg ed they fell on unnatura l acc umulations cause d by snow remova l eff orts, and not unnatur a l a c cumulations cause d by defe ctive construction or improper or insufficient maintenanc e of the premises. ¶ 21 In Pikovsk

y , the defe ndants enter ed in t o co n tra ct s for snow remova l that included a parking l o t an d s i d ewalk, but did not include a rea r entra nce sidewalk. Pikovsk

y , 2011 I L App (1st) 103742, ¶ 3, 964 N.E.2d 124. The plaintiff fell due to icy snow mounds formed by

snow that was plowed from the parking lot onto the rea r entra nce sidewalk. Pikovsk

y , 2011 I L App (1st) 103742, ¶ 4, 964 N.E.2d 124. The plaintiff filed a neg lige nce complaint alleg ing the defe ndants failed to ex er ci se rea sonable car e by cre ating an unsafe and dang erous condition of unnatura l acc umulation of snow and ice on the rea r entra nce sidewalk. Pikovsk

y , 2011 I L App (1st) 103742, ¶ 5, 964 N.E.2d 124. The appellate court found the Act barr ed the plaintiff’s neg lige nce c laim where the contra ctingfor snow a nd ice r emoval constituted “a conscious eff

ort to clea r snow and ice,” and the defe ndants’ failure to remove the snow and ice mounds from the rea

r entra nce sidewalk was an omission in their overa ll snow remova l eff orts. Pikovsk

y , 2011 I LApp (1st) 103742, ¶ 13, 964 N.E.2d 124. We note that Pikovsk y is factua lly

dissimi lar to the pre sent case as the unnatural acc umulation of snow and ic e in Pikovsk y was alleg edly due to the defe ndants’ snow remova l ef fo rt s

. Such alleg ations of

snow remova l effor

ts are notably absent here. Further , to the extent Pikovsk yholds that an

owner ’s contra cting for snow and ice remova l equate s to snow and ice remova l eff orts under

-6-the Act, we d ec l i n e t o adopt this holding. Pikovsk y , 2011 I L App (1st) 103742, ¶ 13, 964 N.E.2d 124. We conc lude the plain languag e of the statute so constrains us. ¶ 22 In Gallagher
, the defe ndants plowed snow from the pl ai n t i ff’s dri v ew ay ca u s i n g unnatura l a ccumulations of snow and ice. Gallagher , 397 I ll. App. 3d at 1039, 922 N.E.2d
at 1204. The plaintiff fell while walking on the plowed path on hi s dri v ew ay , sustaining serious i n juries. Gallagher
, 397 I ll. App. 3d at 1039, 922 N.E.2d at 1204. The plaintiff alleg ed that the defe ndants wer e neg lige nt in cre ating an unnatura l acc umulation of snow and ice on the plaintiff’s drivewa y

. Gallagher
, 397 I ll. App. 3d at 1039, 922 N.E.2d at 1204. Howeve r, the appellate court found the plain languag e of the Act did not provide immunit y for injuries sustained on a drivewa y ; it only applied to snow re moval eff orts on sidewalks. Gallagher , 397 I ll. App. 3d at 1047, 922 N.E.2d at 1210. ¶ 23 In s u m , we co n cl u de that the pl ain l anguag e of the Act does not provide im munity for i n j u ri es if the unnatura l acc umulation of ice was cause d by defe ctive construction o r improper or insufficient mainten an ce o f the premises, and not by snow and ice remova l eff orts. Acc ording ly
, the trial court erre d wh en it dismiss ed plaintiff’s second amende d complaint on the basis that her neg lige nce a lleg ations were barr ed by the Act. ¶ 24 Plaintiff next argues the trial court err ed by dismiss ing counts I I
, IV, VI
, and VI I I of her second amende d co mp l aint alleg ing willful and wanton misconduct. To plead willful and
wanton misconduct, a plaintiff must alleg e duty
, brea ch of duty
, proxi mate cause , and “either

a delibera te intention to harm or a conscious disreg ard for the plaintiff’s welfa re.” Doe- 3 v. McLean County Unit D istrict No. 5 Board ofDirectors
, 2012 I L 112479, ¶ 19, 973 N.E.2d 880

. He re , the trial court grante d defe ndants’ motion to dismiss afte r finding plaintiff’s second amende d complaint failed to sufficie ntly alleg e defe ndants’ conduct was willful and
wanton. We agree

. The fac tual alleg ations made by plaintiff do not d emonstrate “either a deliberate intention to harm or a conscious disreg ard for the plaintiff’s welfa re” as outlined by our supreme court. Doe- 3
, 2012 I L 11 2 4 7 9
, ¶ 19, 973 N.E.2d 880. Thus, the t rial court did not err by dismiss ing counts I I
, IV, VI
, and VI I I of plaintiff’s second amende d complaint. ¶ 25 Plaintiff next argues the trial court err ed by denying her reque st for addi t i o n al time to locate individuals to aid in providingfac tual support for he r cla ims. “A trial court is g iven
great latitude in deter

mining the scop e o f d i s covery , and discovery order s will not be disturbed absent an abuse of discretion.” Manns v. Briell
, 349 I ll. App. 3d 358, 361, 811 N.E.2d 349, 352 (2004). Plaintiff filed her initial complaint in this case on J anuar y 23, 2012, and the trial court dismiss ed her second amende d complaint on Dec ember 21, 2012. The trial
court provided claimant approximately 11 months to locate individuals for purposes of this

case and, thus, did not abuse its discretion by denying he r re quest for a dditional tim e. ¶ 26 We express no opinion reg arding the fac tual sufficie ncy of the neg lige nce counts (counts I
, I I I
, V, and VI I ) of plaintiff’s second amende d complaint. Although the trial court dismiss ed the neg lige nce counts in plaintiff’s second amende d complaint based on defe ndants’ section 2-615 m otion to dismiss , the dismissal was actua lly pursuant to section 2-619. The case is order ed rema

nded to the trial court with direc tions that counts I
, I I I
, V, and VI I of plaintiff’s second amended complaint be reinstated and that defe ndants answe r or other wise plea d to these c ounts.

-7-¶ 27 I I I . CONCLUSI ON

¶ 28 For

the fore g oing r easons, we aff irm the trial court’ s (1) dismissal of plaintiff’s willful and wanton claims an d (2 ) denial of plaintiff’s reque st for additional time for discovery

. Howeve r, we reve rse the trial court’s dismiss al of plaintiff’s neg lige nce claims based on the Snow and I ce Re moval Act, and w e re mand with direc tions.

¶ 29 Affir

med in part a

nd reve rsed in par

t; cause r emande d with directions.

-8-