2013 I LApp (4th) 130036 NO. 4-13- 0036 I N THE APPEL LATE COURT OF I L L I NOI S FOU RTH DI STRI CT MI TZ IO. GREENE,

Plaintiff-Appellant, v. WOOD RI VER TRUST; TAYL OR REAL TY, I NC., d/b/a/ WOOD RI VER TRUST; RI CHARD W. TAYL OR, d/b/a WOOD RIVER TRUST; and RUSS EL L H. TAYL OR, d/b/a WOOD RI VER TRUST,

Def endants-A

ppellees, and RE/MAX REAL TY ASSOCI ATES, d/b/a WOOD RI VER TRUST; RENEE TAYL OR, d/b/a WOOD RI VER TRUST; and J ASON W. OAKES, Respondents in Discover y . )

) ) ) ) ) ) ) ) ) ) ) ) Appea l from Circuit Court of Champaig n County No. 12L 14

Honora ble Michae l Q. J ones, J udg e Presiding

. J USTI CE HARRI S delivered the judgme nt of the cour t, with opinion. Presiding Justice Steigmann a nd J ustice Holder

Whit e conc urre d in the judgme nt and opinion. OP INION ¶ 1 On Fe bruar y 12, 2010, plaintiff, Mitz i O. Gre ene, slipped a nd fell on an ic y walkwa y near the entra nce of a re sidence she lea sed fr om defe ndants, Wood Ri ver Tr ust; Taylor Realty , Inc., d/b/a/ Wood Ri ver Tr ust; Ri char d W. Taylor, d/b/a Wood Ri ver Tr ust; and Russell H. Tay lor, d/b/a Wood Ri ver Tr

ust. After pla intiff filed a c omplaint alleg ing ne g lige nce, defe ndants moved to dismiss pl aintiff' s complaint pursuant to section 2-619 of the Code of Civil Procedur e (Code) (735 I L CS 5/ 2-619 (West 2010)), a rguing pla intiff' s neg lige nce c laims were barr ed by the Snow and I ce Re moval Act (A ct) ( 745 I L CS 75/ 1 et. seq. (West 2010)). The trial court dismissed plaintiff' s complaint but allowed plaintiff to ame nd to alleg e willful and wa nton 

## F I L E D Oct obe r 2 5, 20 13 Car la Bend er 4 Dis tr ic t Ap pel la te t h Court, ILmisconduct, an e x ception to the immunities otherwise provided by the Act. De fenda

nts moved to dismi ss plaintiff' s first amende d complaint pursuant to sec tion 2-615 of the Code (735 I L CS 5/2-619 (West 2010)), whic h the cour t gr anted. In addition, the court a llowed plaintiff to furthe r amend he r complaint to alleg e willful and wa nton misconduct. Defe ndants moved to dismiss plaintiff' s second a

mended c omplaint pursuant to section 2-615 of the Code, which the c ourt g rante d. ¶ 2 Plaintiff appea ls, arguing the trial court e rre d in (1) dete rmining that the Act barr ed her

neg lige nce c laims ag ainst defe ndants, (2) dismissing he r sec ond amende d complaint beca use she pr operly

pled a willful and w anton exception to the immunit y otherwise pr ovided by the Act ( 745 I L CS 75/ 2 (West 2010)), and ( 3) deny ing he r re quest for a dditional tim e to locate individuals to aid in providing fa ctual support for her c laims. W e af

firm in part, re verse in part, and re mand for f

urther pr ocee dings. ¶ 3 I . BA CKGROUND ¶ 4 On J anuar y 23, 2012, plaintiff filed a complaint in neg lige nce a lleg ing that she slipped and fe ll near the entra nce of a re sidence she lea sed fr om defe ndants due to the icy condition of defe ndants' walkwa y . Plaintiff alleg ed seve ral theor ies of neg lige nce c oncer ning the walkwa y , including that defe ndants 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 a nd provide a proper ly pitched over

hangroof; (3) provide prope rly hungand sized gutters; (4) pr ovide prope rly hungand sized downspouts; (5) provide a n adequate number of

downspouts; (6) allow prope r draina g e to occ ur fr om the overha ngroof onto the wa lkway ; (7) cor rec t or repa ir the gutters, downspouts, and over

hang ; (8) kee p the gutters and downspouts " fre e and c lear at all times of
- 2 -stored mater ials"; (9) keep the gutters and downspouts " fre e and c lear at all times of ice" ; and (10) ke ep the gutters and downspouts " fre e and c lear at all times of mud and re fuse." As a proxi mate re sult, plainti ff a lleg ed, def endants' neg lige nce r esulted in an unnatural ac cumulation of water on a

walkwa y which fr oze and ca

used plaintiff to slip and fa ll, suffering"se rious and perma nent injuries to her shoulder ." ¶ 5 On Marc h 2, 2012, defe ndants filed a motion to dismiss under se ction 2-619(a)(9) of the Code, a

rguing de fenda

nts were immune from liability under the Snow and I ce Re moval Act. De fenda

nts attache d to their motion a contrac t, in effe ct at the time of pla intiff' s fall, with J ason Oakes for

snow and ice remova l at multipl e locations, including the re sidence plaintiff lease d from def

endants. F ollowing a

hear ing, the trial court grante d defe ndants' motion and dismiss ed plaintiff' s complaint, finding the neg lige nce c laim was bar red by the Act. Plaintiff soug ht leave to f

ile an ame nded complaint to alleg e willful and wa nton misconduct, an exception to the immunit ies otherwise provided by the Act. The court grante d plaintiff' s motion. ¶ 6 On May

22, 2012, plaintiff filed he r first ame nded complaint alleg ing de fenda nts eng ag ed in willful and wa nton misconduct. Plainti ff' s willful and wanton cla im reiterated the neg lige nce c laim alleg ations, addingthat defe ndants ac ted with "utter indiffer ence to or conscious disreg ard" and " with a re ckless disreg ard f or the saf ety " of plaintiff. Def

endants moved to dismiss plaintiff' s first amende d complaint pursuant to sec tion 2-615 of the Code (735 I L CS 5/ 2- 615 (West 2010)), ar guing pla intiff' s alleg ations that defe ndants failed to pe rfor m routine maintenanc e of gutters and downspouts did not constitute willful and wanton misconduct. Followinga hea

ring , the trial cour

t gr anted de fenda

nts' motion and dismissed the first ame nded complaint. The c ourt allowed pla intiff' s motion t o further amend he r complaint to alleg e willful
- 3 -and wa

nton misconduct. ¶ 7 On August 30, 2012, plaintiff filed her second a mended c omplaint. This ti me, plaintiff re asser

ted her orig inal neg lige nce c laims in counts I , I I I , V, and VI I , and re iterate d her willful and wanton a lleg ations in counts I I , IV, VI , and VI I I . Def endants moved to dismiss plaintiff' s second a

mended c omplaint pursuant to section 2-615 of the Code, arguing ( 1) the trial court ha d alre ady

found plaintiff' s neg lige nce c laims barre d by the Act a nd (2) plaintiff' s alleg ations of willful and wa nton misconduct were still not sufficient to state a cause of ac tion. Plaintiff stated that she incor porate d her " prior ar guments made be fore the cour t." The court g rante d defe ndants' motion and dismi ssed the sec ond amende d complaint with prejudice

. ¶ 8 This appea l followed. ¶ 9 I I . ANALYSI S ¶ 10 On appe al, plaintiff ar gues the trial c ourt err ed in deter mining that the Ac t barre d her ne g lige nce c laims ag ainst defe ndants. Specifica lly , plaintiff argues the Ac t does not apply wher e the unnatural ac cumulation of ice was c aused by defe ctive construc tion or improper or insufficient maintena

nce of the pre mises, and not by

snow and ice remova l effor ts. ¶ 11 After

plaintiff filed he r initial complaint alleg ing ne g lige nce, de fenda nts filed a motion to di smiss under section 2-619( a)( 9) of the Code , arguing that plaintiff' s complaint was barr ed by the Act. Sec tion 2-619 allows for the involuntar y dismiss al of a

cause of ac tion based

on cer tain defe cts and de fense s, including on the g round " the claim asse rted a g ainst defe ndant is barr ed by other a ffirmative matter avoiding the le g al ef fec t of or def

eatingthe claim." 735 I L CS 5/2-619(a) (9) ( West 2010). The dismissal of a complaint pursua nt to section 2-619(a )(9) is revie wed de novo

. Lacey v . Village of Palatine , 232 I ll. 2d 349, 359, 904 N.E.2d 18, 24 (2009).
- 4 -¶ 12 The Snow and I ce Re moval Act conta ins two releva nt parts, which state : "§ 1. It is declare d to be the public policy of this State that

owner s and others r esidingin residential units be enc ourag ed to clea n the sidewa lks abutting their r esidenc es of snow a nd ice. The Gene ral Asse mbly , there fore , deter mines that it is undesirable for any person to be f

ound liable for da

mag es due to his or he r ef forts in the remova l of snow or ice from such sidew alks, except for a cts which amount to clea

r wrong doing, a s descr ibed in Section 2 of this Act. § 2. Any owner , lessor, occ upant or other person in cha

rg e of any residential pr operty , or any ag ent of or othe r per son eng ag ed by any such par ty , who re moves or attempts to remove snow or ice from sidewa lks abutting the pr operty shall not be liable for

any persona l injuries alleg edly cause d by

the snowy

or icy condition of the sidewa lk resulting f

rom his or her a cts or omissions unless the alleg ed misconduct wa s willful or wanton." 745 I L CS 75/ 1, 2 (West 2010). ¶ 13 The I llinois leg islature ena cted the Snow a nd I ce Re moval Act to provide immunit ies and de fense s to "owne rs and other s residingin residential units." 745 IL CS 75/ 1 (West 2010). By

shielding r esidential owne rs from ne g lige nce c laims under the Ac t, the I llinois leg islature soug ht to encoura g e the c leaningof snow and ic e fr om sidewalks abuttingresidenc es. 745 I L CS 75/ 1 (West 2010). In interpre ting a provision of the Ac t, as with any statute, our
- 5 -primary

g oal is to ascer

tain and g ive ef

fec t 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 se ek that intent first fr om the plain languag e used in the statute, a nd if that languag e is clea r and una mbiguous, we are not at liberty to depar t from its 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 a s 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 remove natural ac cumulations of snow or ic e (

Claimsone v. Professional Property Manage ment, LLC , 2011 I LApp (2d) 101115, ¶ 18, 956 N.E.2d 1065) , but exceptions have bee n made whe re some othe r ac t of neg lige nce c ontributes to the condition.

"O ne is g ener ally

not liable for injuries c aused by natura l

acc umulations of ice or snow, a nd there is no [ common law] duty to remove natural ac cumulations of ice or snow. [C itation.] Howeve r, a [common law] duty may arise on the part of the defe ndant-pre mises owner, if the defe ndant voluntarily undertook the task of re moving na

tural ac cumulations of ice or snow and did so neg lige ntly

or if the de fenda

nt was re sponsible for an unnatural

acc umulation of ice or snow . L iability will be imposed on a defendant wher e the plaintiff show s an injury that was c aused by

such an unnatura l acc umulation of ice or snow . [C itation.] " Ordman v. Dacon M anageme nt Corp. , 261 I ll. App. 3d 275, 279, 633 N.E.2d 1307, 1310 (1994).
- 6 -¶ 15 Fur ther, a n exception to the common law " no duty " r ule is made whe re " the

acc umulation of ice or snowbecome s unnatural due to the desig n and construc tion of the premises." McLean v . Rock ford Countr

y Club , 352 I ll. App. 3d 229, 233-34, 816 N.E.2d 403, 408 (2004). "T he construc tion and maintenanc e of a landowner ' s proper

ty are matters within the landowne r' s control. [Ci tation.] There fore , I llinois courts have noted that ' [i ]tis not imposing a n undue burde n on [t he landowne r] to require him not to add to the difficulties fac ing I llinois residents fr om natural a ccumulations of ice and snow by permitting unnatural ac cumulations due to defe ctive construction or imprope r or insuff icient maintenanc e of the premises.' " McLean , 352 I ll. App. 3d at 234, 816 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 Re moval Act wa s enac ted in derog ation of the c ommon law. See Gallagher v. Union Square Condominium Hom eowner's Ass' n , 397 I ll. App. 3d 1037, 1043, 922 N.E.2d 1201, 1207 (2010) (" The Ac t is in derog ation of this common law in that it provides immunit y for injuries sustained by

a per son as a r esult of the attempted c lear ing of sidewalks abutting the proper

ty .") . "[A] court ca

nnot construe a

statute in derog ation of the c ommon law beyond what the wor ds of the statute e x presse s [ sic ] or beyond what is nec essar ily 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 c ommon law must be clea rly and plainly

- 7 -expressed, and w e will not presume f rom ambiguous languag e an intent to abr og ate the c ommon law." Heider v . Knautz , 396 I ll. App. 3d 553, 561, 919 N.E.2d 1058, 1065 (2009). The repe al or pree mption of a common law re medy by implication is notfavor 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 c ommon law must be construed stric tly 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 Ac t provides owner s, lessors, occ upants, or other persons in cha

rg e of residential pr operty

immunit y

for injuries c aused by

snow and ice remova l effor ts, unless their acts or omissions constitute willful and wanton misconduct. 745 I L CS 75/ 2 (West 2010). The leg islature intended f

or such pe rsons to be immune from liability wher e they

neg lige ntly

remove or attempt to remove snow or ice from a r esidential wa lkway . This repre sents a cle ar c onflict with common law neg lige nce c laims, where liability may be imposed on an owner f or injuries

cause d by an owne r’s voluntary

and neg lige nt removal of ic e or snow, c ausingan unnatur al

acc umulation. W e pre sume the leg islature wa s familiar with the a fore mentioned common law

cause of ac tion. See People v . Hickm an , 163 I ll. 2d 250, 262, 644 N.E.2d 1147, 1153 (1994) (" it must be presumed that the leg islature ac ted with knowledg e of the preva iling ca se law" ). It is appar ent then the Ac t was intended to modify common law liability

for owne rs and other s residingin residential units who neg lige ntly remove or attempt to remove snow or ice from sidewalks abuttingtheir prope rty . 745 I L CS 75/ 2 (West 2010). ¶ 18 Her e, plaintiff a lleg es her injuries wer e not the re sult of any eff orts to remove snow or ice from a w alkway , but instead resulted f rom an icy

condition cause d by

the def ective condition of the building a djace nt to the walkway . There fore , the Act doe s not apply to bar he r
- 8 -neg lige nce c laim. The plain languag e of the Act indicate s it does not apply to neg lige nce a ctions for injuries c aused by

defe ctive construc tion or improper or insuff icient maintenanc e of the premises. Instead, the A ct applies only to immuni ze an owner ' s neg lige nt effor ts to remove snow and ice from re sidential sidewalks. ¶ 19 Were we to hold that the Act also applied where an unnatur al ac cumulation of ice

was c aused by

defe ctive construc tion or improper or insuff icient maintenanc e of the premises, we would be re pealinga common law r emedy by implication, which is not favore d. See Callahan, 374 I ll. App. 3d at 634, 872 N.E.2d at 553. Ac cording ly , we c onclude that the pla in languag e of the Act doe s not provide immunity for injuries if the unnatura l acc umulation of ice wa s cause d by defe ctive construc tion or improper or insuff icient maintenanc e of the premises, a nd not snow and ice remova l effor

ts. ¶ 20 Def

endants c ite Pikovsk

y v. 8440- 8460 North Skokie Blvd. Condominium Ass'n, Inc. , 2011 I LApp (1st) 103742, 964 N.E.2d 124, a nd Gallagher in support of their ar gument that the Act a pplies. Howeve r, these c ases a re c lear ly distinguishable. The plaintiffs in Pikovsk yand Gallagher

alleg ed they

fell on unnatura l acc umulations caused by snow remova l effor

ts, and not unnatura l acc umulations caused by defe ctive construc tion or improper or insufficient maintenance of the pre mises. ¶ 21 In Pikovsk y, the def endants e ntere d into contrac ts for snow re moval that included a par king lot and side walk, but did not include a r ear entra nce side walk. Pikovsk

y , 2011 I LApp (1st) 103742, ¶ 3, 964 N.E .2d 124. The plaintiff f ell due to icy

snow mounds formed by snow that was plowe d from the pa rkinglot onto the rear

entra nce side walk. Pikovsk

y , 2011 I LApp (1st) 103742, ¶ 4, 964 N.E .2d 124. The plaintiff f iled a neg lige nce c omplaint alleg ing the

- 9 -defe ndants failed to e x erc ise rea sonable c are by cre atingan unsaf

e and da ng erous c ondition of unnatura l acc umulation of snow and ice on the re ar e ntranc e sidewa lk. Pikovsk y , 2011 I LApp (1st) 103742, ¶ 5, 964 N.E .2d 124. The a ppellate c ourt found the Ac t barre d the plaintiff' s neg lige nce c laim where the contra ctingfor snow a nd ice r emoval constituted " a consc ious effor t to clear snow and ice ," a

nd the def

endants' failure to remove the snow and ice mounds from the

rea r entra nce side walk wa s an omission in t heir ove rall snow re moval eff orts. Pikovsk

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

dissimi lar to the prese nt case as the unna

tural ac cumulation of snow and ic e in Pikovsk ywas a lleg edly

due to the defe ndants' snow remova l effor ts. Such alleg ations of snow re moval eff orts are notably

absent here . Fur ther, to the e x tent Pikovsk y holds that an owner ' s contrac ting f or snow and ic e re moval equate s to snow and ice r emoval ef forts under

the Act, we decline to a dopt this hol ding. Pikovsk y , 2011 I LApp (1st) 103742, ¶ 13, 964 N .E.2d 124. We conclude the plain languag e of the statute so constra ins us. ¶ 22 In Gallagher , the def endants plowe d snow from the pla intiff' s drivewa y causing unnatura l acc umulations of snow and ice

. Gallagher , 397 I ll. App. 3d at 1039, 922 N.E.2d at 1204. The plaintiff f

ell while walkingon the plowed path on his driveway , sustaining se rious injuries. 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 creating a n 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. How ever , the appellate court found the plain languag e of the Act did not provide immunity for injuries sustained on a dr iveway ; 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.

- 10 -¶ 23 In sum, we conc lude that the plain lang uag e of the Act does not provide immunit y for injuries if the unnatura l acc umulation of ice wa s cause d by defe ctive construc tion or improper or insufficie nt maintenance of the pre mises, and not by snow and ice remova l effor ts. Acc ording ly , the trial cour t erre d when it dismissed plaintiff' s second amended c omplaint on the basis that her ne g lige nce a lleg ations were barr ed by the Act. ¶ 24 Plaintiff nextarg ues the trial c ourt err ed by dismiss ing c ounts I I , IV, VI , and VI I I of her second a mended c omplaint alleg ing w illful and wanton misconduct. To plea d willful and wanton misconduct, a

plaintiff must alleg e duty , brea ch of duty , proxi mate ca use, and " either a deliberate intention to harm or a c onscious disreg ard f or the plaintiff' s welfa

re." Doe- 3 v. McLean County Unit Dist. No. 5 Bd. of Directors , 2012 I L112479, ¶ 19, 973 N.E.2d 880. He re, the trial cour

t gr anted de fenda

nts' motion to dismis s after findingplaintiff' s second amended complaint failed to suff

iciently alleg e def

endants' conduct wa s willful and wanton. We agree . The fa ctual alleg ations made by plaintiff do not demonstrate " either a deliberate intention to harm or a conscious disreg ard f

or the plaintiff' s welfa

re" as outlined by

our supre me cour

t. Doe- 3, 2012 I L112479, ¶ 19, 973 N.E.2d 880. Thus, the tr ial court did not err by dismiss ing counts I I , IV, VI , and VI I Iof plaintiff' s second amended c omplaint. ¶ 25 Plaintiff nextarg ues the trial c ourt err ed by denying he r re quest for a dditional time to locate individuals to aid in providing f actua l support for her

claims. " A trial cour

t is g iven g reat latitude in determiningthe scope of discover y , and discove ry

order s will not be disturbed abse nt an abuse of discre tion." Manns v. Briell , 349 I ll. App. 3d 358, 361, 811 N.E.2d 349, 352 (2004). Plaintiff filed he r initial complaint in thi s case on J anuar y 23, 2012, and the trial court dismissed her se cond ame nded complaint on De cembe r 21, 2012. The tr ial court

- 11 -provided c laimant approximately 11 months to l ocate individuals for purposes of this case a

nd, thus, did not abuse its discretion by denying he r re quest for a dditional tim e. ¶ 26 We express no opinion reg ardingthe fa ctual suff iciency of the ne g lige nce c ounts (counts I , I I I , V, and VI I ) of plaintiff' s second amended c omplaint. Although the tria l court dismiss ed the ne g lige nce c ounts in plainti ff' s second amended c omplaint based on def endants' section 2-615 motion to dismi ss, the dismiss al was a ctually pursuant to sec tion 2-619. The ca se is ordere d rema

nded to the trial c ourt with directions that counts I , I I I , V, and VI Iof plaintiff' s second a mended c omplaint be reinstated a nd that defe ndants answe r or other wise plea d to these counts. ¶ 27 I I I . CONCLUSI ON ¶ 28 For

the fore g oing r easons, we aff irm the trial cour

t's ( 1) dismissal of plaintiff' s willful and wanton c laims and (2) de nial of plaintiff' s reque st for additional time for discove ry . Howeve r, we reve rse the trial court' s dismis sal of plaintiff' s neg lige nce c laims 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.

- 12 -