ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

MITZI O. GREENE, Plaintiff-Appellant, v. 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 WOOD RIVER TRUST, Defendants-Appellees, and

RE/MAX REALTY ASSOCIATES, d/b/a WOOD RIVER TRUST;

RENEE TAYLOR, d/b/a WOOD RIVER TRUST; and JASON W.

OAKES, Respondents in Discovery.

 District & No. Fourth District

Docket No. 4-13-0036

Filed October 25, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

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

on an icy walkway at her leased residence, the trial court properly

dismissed her willful and wanton claims and her request for additional

time to locate individuals who could support her claims, since plaintiff’s

allegations did not show a deliberate intention to harm or a conscious

disregard for plaintiff’s welfare and she had 11 months to find supporting

witnesses, but the dismissal of her negligence claims pursuant to the

Snow and Ice Removal Act was reversed, since the Act does not provide

immunity for claims based on an icy condition caused by defective

construction or improper or insufficient maintenance.

Decision Under 

Review

Appeal from the Circuit Court of Champaign County, No. 12-L-14; the

Hon. Michael Q. Jones, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded with directions.

Counsel on

Appeal

Miranda L. Soucie (argued), of Spiros Law, P.C., of Danville, for

appellant.

Michael E. Raub (argued), of Heyl, Royster, Voelker & Allen, of Urbana,

for appellees.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Presiding Justice Steigmann and Justice Holder White concurred in the

judgment and opinion.

OPINION

¶ 1 On February 12, 2010, plaintiff, Mitzi O. Greene, slipped and fell on an icywalkway near

the entrance of a residence she leased from defendants, 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 Wood River Trust. After plaintiff filed a complaint alleging negligence,

defendants moved to dismiss plaintiff’s complaint pursuant to section 2-619 of the Code of

Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)), arguing plaintiff’s negligence

claims were barred by the Snow and Ice Removal Act (Act) (745 ILCS 75/1 et seq. (West

2010)). The trial court dismissed plaintiff’s complaint but allowed plaintiff to amend to

allege willful and wanton misconduct, an exception to the immunities otherwise provided

by the Act. Defendants moved to dismiss plaintiff’s first amended complaint pursuant to

section 2-615 of the Code (735 ILCS 5/2-619 (West 2010)), which the court granted. In

addition, the court allowed plaintiff to further amend her complaint to allege willful and

wanton misconduct. Defendants moved to dismiss plaintiff’s second amended complaint

pursuant to section 2-615 of the Code, which the court granted.

¶ 2 Plaintiff appeals, arguing the trial court erred in (1) determining that the Act barred her

negligence claims against defendants, (2) dismissing her second amended complaint because

she properly pled a willful and wanton exception to the immunity otherwise provided by the

Act (745 ILCS 75/2 (West 2010)), and (3) denying her request for additional time to locate

individuals to aid in providing factual support for her claims. We affirm in part, reverse in

part, and remand for further proceedings.

¶ 3 I. BACKGROUND

¶ 4 On January 23, 2012, plaintiff filed a complaint in negligence alleging that she slipped

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and fell near the entrance of a residence she leased from defendants due to the icy condition

of defendants’ walkway. Plaintiff alleged several theories of negligence concerning the

walkway, including that defendants negligently failed to (1) provide a safe walkway in

violation of the Premises Liability Act (740 ILCS 130/1 to 5 (West 2010)); (2) maintain and

provide a properly pitched overhang roof; (3) provide properly hung and sized gutters; (4)

provide properly hung and sized downspouts; (5) provide an adequate number of

downspouts; (6) allow proper drainage to occur from the overhang roof onto the walkway;

(7) correct or repair the gutters, downspouts, and overhang; (8) keep the gutters and

downspouts “free and clear at all times of stored materials”; (9) keep the gutters and

downspouts “free and clear at all times of ice”; and (10) keep the gutters and downspouts

“free and clear at all times of mud and refuse.” As a proximate result, plaintiff alleged,

defendants’ negligence resulted in an unnatural accumulation of water on a walkway which

froze and caused plaintiff to slip and fall, suffering “serious and permanent injuries to her

shoulder.”

¶ 5 On March 2, 2012, defendants filed a motion to dismiss under section 2-619(a)(9) of the

Code, arguing defendants were immune from liability under the Snow and Ice Removal Act.

Defendants attached to their motion a contract, in effect at the time of plaintiff’s fall, with

Jason Oakes for snow and ice removal at multiple locations, including the residence plaintiff

leased from defendants. Following a hearing, the trial court granted defendants’ motion and

dismissed plaintiff’s complaint, finding the negligence claim was barred by the Act. Plaintiff

sought leave to file an amended complaint to allege willful and wanton misconduct, an

exception to the immunities otherwise provided by the Act. The court granted plaintiff’s

motion.

¶ 6 On May22, 2012, plaintiff filed her first amended complaint alleging defendants engaged

in willful and wanton misconduct. Plaintiff’s willful and wanton claim reiterated the

negligence claim allegations, adding that defendants acted with “utter indifference to or

conscious disregard” and “with a reckless disregard for the safety” of plaintiff. Defendants

moved to dismiss plaintiff’s first amended complaint pursuant to section 2-615 of the Code

(735 ILCS 5/2-615 (West 2010)), arguing plaintiff’s allegations that defendants failed to

perform routine maintenance of gutters and downspouts did not constitutewillful and wanton

misconduct. Following a hearing, the trial court granted defendants’ motion and dismissed

the first amended complaint. The court allowed plaintiff’s motion to further amend her

complaint to allege willful and wanton misconduct.

¶ 7 On August 30, 2012, plaintiff filed her second amended complaint. This time, plaintiff

reasserted her original negligence claims in counts I, III, V, and VII, and reiterated her willful

and wanton allegations in counts II, IV, VI, and VIII. Defendants moved to dismiss plaintiff’s

second amended complaint pursuant to section 2-615 of the Code, arguing (1) the trial court

had already found plaintiff’s negligence claims barred by the Act and (2) plaintiff’s

allegations of willful and wanton misconduct were still not sufficient to state a cause of

action. Plaintiff stated that she incorporated her “prior arguments made before the court.”

The court granted defendants’ motion and dismissed the second amended complaint with

prejudice.

¶ 8 This appeal followed.

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¶ 9 II. ANALYSIS

¶ 10 On appeal, plaintiff argues the trial court erred in determining that the Act barred her

negligence claims against defendants. Specifically, plaintiff argues the Act does not apply

where the unnatural accumulation of ice was caused by defective construction or improper

or insufficient maintenance of the premises, and not by snow and ice removal efforts.

¶ 11 After plaintiff filed her initial complaint alleging negligence, defendants filed a motion

to dismiss under section 2-619(a)(9) of the Code, arguing that plaintiff’s complaint was

barred by the Act. Section 2-619 allows for the involuntary dismissal of a cause of action

based on certain defects and defenses, including on the ground “the claim asserted against

defendant is barred by other affirmative matter avoiding the legal effect of or defeating the

claim.” 735 ILCS 5/2-619(a)(9) (West 2010). The dismissal of a complaint pursuant to

section 2-619(a)(9) is reviewed de novo. Lacey v. Village of Palatine, 232 Ill. 2d 349, 359,

904 N.E.2d 18, 24 (2009).

¶ 12 The Snow and Ice Removal Act contains two relevant parts, which state:

“§ 1. 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.

§ 2. Any owner, lessor, occupant or other person in charge of anyresidential 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.”

745 ILCS 75/1, 2 (West 2010).

¶ 13 The Illinoislegislature enacted the Snow and Ice Removal Act to provide immunities and

defenses to “owners and others residing in residential units.” 745 ILCS 75/1 (West 2010).

Byshielding residential owners from negligence claims under the Act, the Illinoislegislature

sought to encourage the cleaning of snow and ice from sidewalks abutting residences. 745

ILCS 75/1 (West 2010). In interpreting a provision of the Act, as with any statute, our

primary goal is to ascertain and give effect to the intention of the legislature. Ries v. City of

Chicago, 242 Ill. 2d 205, 215-16, 950 N.E.2d 631, 637 (2011). We seek that intent first from

the plain language used in the statute, and if that language is clear and unambiguous, we are

not at liberty to depart from its plain meaning. Ries, 242 Ill. 2d at 216, 950 N.E.2d at 637.

We review de novo the interpretation of a statute as a question of law. Abruzzo v. City of

Park Ridge, 231 Ill. 2d 324, 332, 898 N.E.2d 631, 636 (2008).

¶ 14 Under the common law, a landowner has no duty to remove natural accumulations of

snow or ice (Claimsone v. Professional Property Management, LLC, 2011 IL App (2d)

101115, ¶ 18, 956 N.E.2d 1065), but exceptions have been made where some other act of

negligence contributes to the condition.

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“One is generally not liable for injuries caused by natural accumulations of ice or

snow, and there is no [common law] duty to remove natural accumulations of ice or

snow. [Citation.] However, a [common law] duty may arise on the part of the

defendant-premises owner, if the defendant voluntarily undertook the task of removing

natural accumulations of ice or snow and did so negligently or if the defendant was

responsible for an unnatural accumulation of ice or snow. Liability will be imposed on

a defendant where the plaintiff shows an injury that was caused by such an unnatural

accumulation of ice or snow. [Citation.]” Ordman v. Dacon Management Corp., 261 Ill.

App. 3d 275, 279, 633 N.E.2d 1307, 1310 (1994).

¶ 15 Further, an exception to the common law “no duty” rule is made where “the

accumulation of ice or snow becomes unnatural due to the design and construction of the

premises.” McLean v. Rockford Country Club, 352 Ill. App. 3d 229, 233-34, 816 N.E.2d 403,

408 (2004).

“The construction and maintenance of a landowner’s property are matters within the

landowner’s control. [Citation.] Therefore, Illinois courts have noted that ‘[i]t is not

imposing an undue burden on [the landowner] to require him not to add to the difficulties

facing Illinois residents from natural accumulations of ice and snow by permitting

unnatural accumulations due to defective construction or improper or insufficient

maintenance of the premises.’ ” McLean, 352 Ill. App. 3d at 234, 816 N.E.2d at 408

(quoting Bloom v. Bistro Restaurant Ltd. Partnership, 304 Ill. App. 3d 707, 711, 710

N.E.2d 121, 123 (1999)).

¶ 16 The Snow and Ice Removal Act was enacted in derogation of the common law. See

Gallagher v. Union Square Condominium Homeowner’s Ass’n, 397 Ill. App. 3d 1037, 1043,

922 N.E.2d 1201, 1207 (2010) (“The Act is in derogation of this common law in that it

provides immunity for injuries sustained by a person as a result of the attempted clearing of

sidewalks abutting the property.”). “[A] court cannot construe a statute in derogation of the

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

necessarily implied from what is expressed.” Adams v. Northern Illinois Gas Co., 211 Ill. 2d

32, 69, 809 N.E.2d 1248, 1271 (2004). “Any legislative intent to abrogate the common law

must be clearly and plainly expressed, and we will not presume from ambiguous language

an intent to abrogate the common law.” Heider v. Knautz, 396 Ill. App. 3d 553, 561, 919

N.E.2d 1058, 1065 (2009). The repeal or preemption of a common law remedy by

implication is not favored. Callahan v. Edgewater Care & Rehabilitation Center, Inc., 374

Ill. App. 3d 630, 634, 872 N.E.2d 551, 553 (2007). An act in derogation of the common law

must be construed strictly against the entity claiming immunity. Van Meter v. Darien Park

District, 207 Ill. 2d 359, 368, 799 N.E.2d 273, 279 (2003).

¶ 17 Here, the Act provides owners, lessors, occupants, or other persons in charge of

residential property immunity for injuries caused by snow and ice removal efforts, unless

their acts or omissions constitute willful and wanton misconduct. 745 ILCS 75/2 (West

2010). The legislature intended for such persons to be immune from liability where they

negligently remove or attempt to remove snow or ice from a residential walkway. This

represents a clear conflict with common law negligence claims, where liability may be

imposed on an owner for injuries caused by an owner’s voluntary and negligent removal of

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ice or snow, causing an unnatural accumulation. We presume the legislature was familiar

with the aforementioned common law cause of action. See People v. Hickman, 163 Ill. 2d

250, 262, 644 N.E.2d 1147, 1153 (1994) (“it must be presumed that the legislature acted with

knowledge of the prevailing case law”). It is apparent then the Act was intended to modify

common law liability for owners and others residing in residential units who negligently

remove or attempt to remove snow or ice from sidewalks abutting their property. 745 ILCS

75/2 (West 2010).

¶ 18 Here, plaintiff alleges her injuries were not the result of any efforts to remove snow or

ice from a walkway, but instead resulted from an icy condition caused by the defective

condition of the building adjacent to the walkway. Therefore, the Act does not apply to bar

her negligence claim. The plain language of the Act indicates it does not apply to negligence

actions for injuries caused by defective construction or improper or insufficient maintenance

of the premises. Instead, the Act applies only to immunize an owner’s negligent efforts to

remove snow and ice from residential sidewalks.

¶ 19 Were we to hold that the Act also applied where an unnatural accumulation of ice was

caused by defective construction or improper or insufficient maintenance of the premises,

we would be repealing a common law remedy by implication, which is not favored. See

Callahan, 374 Ill. App. 3d at 634, 872 N.E.2d at 553. Accordingly, we conclude that the

plain language of the Act does not provide immunity for injuries if the unnatural

accumulation of ice was caused by defective construction or improper or insufficient

maintenance of the premises, and not snow and ice removal efforts.

¶ 20 Defendants cite Pikovsky v. 8440-8460 North Skokie Boulevard Condominium Ass’n,

2011 IL App (1st) 103742, 964 N.E.2d 124, and Gallagher in support of their argument that

the Act applies. However, these cases are clearly distinguishable. The plaintiffs in Pikovsky

and Gallagher alleged they fell on unnatural accumulations caused by snow removal efforts,

and not unnatural accumulations caused bydefective construction or improper or insufficient

maintenance of the premises.

¶ 21 In Pikovsky, the defendants entered into contracts for snow removal that included a

parking lot and sidewalk, but did not include a rear entrance sidewalk. Pikovsky, 2011 IL

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 rear entrance sidewalk. Pikovsky, 2011

IL App (1st) 103742, ¶ 4, 964 N.E.2d 124. The plaintiff filed a negligence complaint alleging

the defendants failed to exercise reasonable care by creating an unsafe and dangerous

condition of unnatural accumulation of snow and ice on the rear entrance sidewalk. Pikovsky,

2011 IL App (1st) 103742, ¶ 5, 964 N.E.2d 124. The appellate court found the Act barred the

plaintiff’s negligence claim where the contracting for snow and ice removal constituted “a

conscious effort to clear snow and ice,” and the defendants’ failure to remove the snow and

ice mounds from the rear entrance sidewalk was an omission in their overall snow removal

efforts. Pikovsky, 2011 IL App (1st) 103742, ¶ 13, 964 N.E.2d 124. We note that Pikovsky

is factually dissimilar to the present case as the unnatural accumulation of snow and ice in

Pikovsky was allegedly due to the defendants’ snow removal efforts. Such allegations of

snow removal efforts are notably absent here. Further, to the extent Pikovsky holds that an

owner’s contracting for snow and ice removal equates to snow and ice removal efforts under

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the Act, we decline to adopt this holding. Pikovsky, 2011 IL App (1st) 103742, ¶ 13, 964

N.E.2d 124. We conclude the plain language of the statute so constrains us.

¶ 22 In Gallagher, the defendants plowed snow from the plaintiff’s driveway causing

unnatural accumulations of snow and ice. Gallagher, 397 Ill. App. 3d at 1039, 922 N.E.2d

at 1204. The plaintiff fell while walking on the plowed path on his driveway, sustaining

serious injuries. Gallagher, 397 Ill. App. 3d at 1039, 922 N.E.2d at 1204. The plaintiff

alleged that the defendants were negligent in creating an unnatural accumulation of snow and

ice on the plaintiff’s driveway. Gallagher, 397 Ill. App. 3d at 1039, 922 N.E.2d at 1204.

However, the appellate court found the plain language of the Act did not provide immunity

for injuries sustained on a driveway; it only applied to snow removal efforts on sidewalks.

Gallagher, 397 Ill. App. 3d at 1047, 922 N.E.2d at 1210.

¶ 23 In sum, we conclude that the plain language of the Act does not provide immunity for

injuries if the unnatural accumulation of ice was caused by defective construction or

improper or insufficient maintenance of the premises, and not by snow and ice removal

efforts. Accordingly, the trial court erred when it dismissed plaintiff’s second amended

complaint on the basis that her negligence allegations were barred by the Act.

¶ 24 Plaintiff next argues the trial court erred by dismissing counts II, IV, VI, and VIII of her

second amended complaint alleging willful and wanton misconduct. To plead willful and

wanton misconduct, a plaintiff must allege duty, breach of duty, proximate cause, and “either

a deliberate intention to harm or a conscious disregard for the plaintiff’s welfare.” Doe-3 v.

McLean County Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 19, 973 N.E.2d

880. Here, the trial court granted defendants’ motion to dismiss after finding plaintiff’s

second amended complaint failed to sufficiently allege defendants’ conduct was willful and

wanton. We agree. The factual allegations made by plaintiff do not demonstrate “either a

deliberate intention to harm or a conscious disregard for the plaintiff’s welfare” as outlined

by our supreme court. Doe-3, 2012 IL 112479, ¶ 19, 973 N.E.2d 880. Thus, the trial court

did not err by dismissing counts II, IV, VI, and VIII of plaintiff’s second amended complaint.

¶ 25 Plaintiff next argues the trial court erred by denying her request for additional time to

locate individuals to aid in providing factual support for her claims. “A trial court is given

great latitude in determining the scope of discovery, and discovery orders will not be

disturbed absent an abuse of discretion.” Manns v. Briell, 349 Ill. App. 3d 358, 361, 811

N.E.2d 349, 352 (2004). Plaintiff filed her initial complaint in this case on January 23, 2012,

and the trial court dismissed her second amended complaint on December 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 her request for additional time.

¶ 26 We express no opinion regarding the factual sufficiency of the negligence counts (counts

I, III, V, and VII) of plaintiff’s second amended complaint. Although the trial court dismissed

the negligence counts in plaintiff’s second amended complaint based on defendants’ section

2-615 motion to dismiss, the dismissal was actually pursuant to section 2-619. The case is

ordered remanded to the trial court with directions that counts I, III, V, and VII of plaintiff’s

second amended complaint be reinstated and that defendants answer or otherwise plead to

these counts.

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¶ 27 III. CONCLUSION

¶ 28 For the foregoing reasons, we affirm the trial court’s (1) dismissal of plaintiff’s willful

and wanton claims and (2) denial of plaintiff’s request for additional time for discovery.

However, we reverse the trial court’s dismissal of plaintiff’s negligence claims based on the

Snow and Ice Removal Act, and we remand with directions.

¶ 29 Affirmed in part and reversed in part; cause remanded with directions.

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