2011 IL App (1st) 103502
Ill. App. Ct.2011Background
- Hornacek sued for injuries from a fall on ice in 5th Avenue’s parking lot; Rice performed snow removal under contract with 5th Avenue.
- Plaintiff alleged 5th Avenue was negligent in maintaining the lot and creating or allowing an unnatural ice accumulation.
- Rice, contracted by 5th Avenue, moved for summary judgment arguing he complied with the contract and did not create an unnatural condition.
- The circuit court granted Rice’s summary judgment and then granted 5th Avenue’s summary judgment; Hornacek appealed.
- Court held there are genuine issues of material fact as to whether Rice created the unnatural accumulation and whether 5th Avenue had actual or constructive notice; judgment reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rice created the ice that caused Hornacek’s fall | Hornacek shows Rice created the condition | Rice did not breach contract and did not create the condition | Summary judgment improper; triable issue |
| Whether 5th Avenue had actual or constructive notice of the condition | 5th Avenue knew or should have known of the ice | No notice shown | Issue for the trier of fact; not entitled to summary judgment |
| Whether the ice was an unnatural accumulation and thus recoverable | Ice accumulation was unnatural due to snow piles and plowing | Cannot establish unnatural origin | Question for a jury; not decided at summary judgment |
Key Cases Cited
- Krywin v. Chicago Transit Authority, 238 Ill. 2d 215 (Illinois Supreme Court 2010) (landowner liability for natural vs. unnatural accumulations; contractor duty to avoid creating abnormal conditions)
- Branson v. R&L Investment, Inc., 196 Ill. App. 3d 1088 (Ill. App. 1st Dist. 1990) (duty of landowner and contractor for snow and ice; must avoid creating abnormal conditions)
- Reed v. Wal-Mart Stores, Inc., 298 Ill. App. 3d 712 (Ill. App. 4th Dist. 1998) (no notice required when defendant negligent in creating condition)
- Handy v. Sears, Roebuck & Co., 182 Ill. App. 3d 969 (Ill. App. 1st Dist. 1989) (summary-judgment standards in negligence and notice context)
- Bloom v. Bistro Restaurant Ltd. Partnership, 304 Ill. App. 3d 707 (Ill. App. 1st Dist. 1999) (scope of constructive notice and evidence required at summary judgment)
- Smolek v. K.W. Landscaping, 266 Ill. App. 3d 226 (Ill. App. 2d Dist. 1994) (constructive notice; duration or conspicuousness of hazard)