*1 say that mental respondent’s we conduct is so as to constitute offensive cruelty they considering the circumstances under occurred.
Petitioner also relies on McGowan v. McGowan at bar. factually inapposite which is to the case The record in mere between “bickering” McGowan indicated more than communication, frigid parties. Plaintiff-husband testified to a lack ity in their his relationships, disparaging regarding intimate comments children, ability jealousy desire and another to have and defendant’s skin plaintiff developed weight woman. Due to loss and a foregoing, The proved grounds rash. trial court divorce found had bar, appellate many which was of the affirmed court. In the case at Further, factors us. present McGowan the court are before at bar petitioner case found that carried her had not burden. County. affirm
We of the of St. Clair Circuit Court Affirmed. KASSERMAN, JJ„ concur.
JONES INC., STILES, LANES, EILEEN Plaintiff-Appellant, v. PANORAMA Defendant-Appellee.
Fifth District No. 81-222 Opinion July filed 1982.
HARRISON, J., dissenting. Belleville, appellant. Heiligenstein Badgley,
C. E. L. of for and Brad both Rabbitt, Brown, Frazier, James, Phillip L. McMullin and M. both of John Pitzer, Louis, Missouri, Whaley, appellee. & for McMullin of St. opinion of the court: delivered the JUSTICE JONES resulting ridges and ruts question icy Presented here is the whether of solely unnatural accumula- ordinary from vehicular traffic constitute an purposes. tion for business upon parking of snow and ice a lot used $25,000 Plaintiff, Stiles, for in the amount of sought damages Eileen defendant, Pano- personal of injuries parking suffered in a fall in the lot Lanes, part of negligence on the complaint alleged rama Inc. In her she uneven rough and permitting parking defendant for the lot “to become snow,” “ruts to permitting anwith unnatural accumulation of ice and remove, salt or failing exist ice in “to parking the lot area” and for lot.” upon parking its icy otherwise treat an or snow covered condition summary judgment, granted The trial court defendant’s motion finding respect to the duties genuine any no issue as fact with to material summary was contending of defendant. that appeals Plaintiff a issue of improper depositions raised pleadings the and of an product “the parking material that the condition the lot was customers unnatural defendant’s accumulation of ice and snow negligent in and its was snow removal effort” that whether defendant and the of fact. question snow removal effort it undertook was a deposition plaintiff p.m. her at stated that about 7:30 on
26, 1979, she walked defendant’s lot in order to attend dance building. defendant’s She that the said at time she could see in lot “ice ruts” caused the and that as a tires consequence in.” very carefully she “trod those over when walked [she] During evening the course of “very badly.” snowed When emerged from the a few at building hours later about 12:40 a.m. her toe “caught” in building snow-covered rut feet from the and about fracturing she fell her wrist. She said but that well lit that she was unable rut to see the beneath the snow.
According Behrmann, to the an deposition Roger defendant had oral agreement Roger with him to remove from the lot. snow Booker, Behrmann stated that he had been instructed Frank defend- president can, ant’s general you manager, remove “what [snow] know.” per To “[n]inety remove the snow he used a backhoe cent of time.” “[y]ou He can’t explained only that removed the snow because he ice,” there, get stating you just get top packed it’s can “[i]f layer.” why explained He further he could remove the snow but not the ice:
“Well, you if got packed and it’s on there with cars it, that’s run over they pack there, it on and then turntto [sic] on, ice later and say, you Okay. then get layer another of snow. Then you you come try layer remove of snow. You *3 don’t have no it get traction with under that to under the ice snow off, peel to it you know.”
The witness said that one get Frank Booker to cinders at “going was some time, but I don’t know if it date or after plaintiff’s was before of fall] [the that.”
In his if and deposition parking Frank Booker that lot is stated the marks, rutted attempt of tire he that ice to does not to remove or said, there, have it Ac- removed. He “If it is remove it.” frozen can’t salt, cording witness, cinders, to the parking spread the lot with was any ashes or other material that of kind.
It is injury well a liable for property settled that owner is not by sustained in lot any icy parking a business a fall sidewalk or invitee maintained the the by property owner for use of his customers where the is the aggravated by accumulation a natural one and not one caused or 36, 430 v. property App. 3d Turski (1981), owner. 103 Ill. 1135; 217, 188 N.E.2d v. Zide Tea Co. App. N.E.2d 39 Ill. 2d (1963), Jewel 383.) hand, injury On sus may the other be property a owner liable and tained a result of snow injured business falls is as a invitee who ice that as of did not a causes but the result accumulate as result of natural the ac- in or artificial property creating owner’s an unnatural conduct Bank (1982), v. La Salle National (Smalling cumulation snow ice. Co. v. National Tea 894, 713; Fitzsimons App. 104 Ill. 3d 433 N.E.2d 306, 173 duty is no to (1961), 534.) Although 29 Ill. there App. 2d N.E.2d premises, one’s remove natural snow and ice from accumulations of may be the basis voluntary undertaking to remove such snow and ice Sears, (DeMario v. Roebuck if liability performed negligently. the is removal However, 46, & Co. mere (1972), App. 6 Ill. 3d 284 N.E.2d remaining on may removal of which leave a natural ice formation Timmons; McCann premises, negligence. the does not of itself constitute v. Bakeman 16; Hospital Bethesda App. 80 Ill. 3d N.E.2d Sears, 449; v. Roebuck & 307 N.E.2d Co. App. 3d 55, 241 Anderson Davis Ill. Development Corp. N.E.2d 222. anything the case at but ordi nothing suggest bar there is that
nary complains. vehicular There plaintiff traffic caused the ruts of which is, example, upon plaintiff which fell suggestion no that the ice frozen, resulted from later as drainage of melted snow Fitzsimons, happened upon plaintiff There the defendant relies. plowed it had large piles, snow on his into two alternately thawing remained for about during period three weeks melting and freezing weather. from the There was evidence that water snow had run frozen across the defendant’s lot and had been later into a sheet of ice that wheels of “ridges” was “rutted” with made plaintiff upon plaintiff’s where the fell. We find reliance Zide, Fitzsimons misplaced. plaintiff As was where the likewise said upon was, however, relied Fitzsimons and where there no evidence plaintiff, lot, who had fallen on ice upon fell the defendant’s formed from snow that had melted and so drained: case,
“In the Fitz fell was Simons which the the ice dark,’ ice, ‘rough ‘ridges’ described as made ‘rutted’ with likewise, bar, wheels plaintiff, of automobiles. In the case at thick, ‘heavy, ridged described at ice.’ the ice she fell as Beyond similarity descriptive the use of exists no these terms there 217, 224, 188 (39 the two cases.” So, too, bar, in the and Fitzsimons ends similarity case at between with the use of that the descriptive these In the instant case all terms. may defendant accumulation be said to have done cause an unnatural of snow and is snow ice to suffer its to use its lot while customers *4 was upon ordinary ground. only vehicular view of the fact traffic in for complains caused the ruts of which intended vehicles, use such such use resulting we do not think that the ruts from may be ice said to snow and have been an unnatural accumulation of defendant. said,
As we have already may leave a removal of not, more, natural ice formation remaining premises on the does without constitute negligence. in Nothing suggests this record that defendant did natural, more than remove snow and leave what deemed be a we have to unnatural, rather than an prior ice formation at some time to the snowfall Thus, on the evening 1979. in leaving defendant’s conduct this and, ice formation did negligence, contrary plain- not constitute here, tiff’s assertion question there was no of fact this record as to whether negligent defendant was in it the snow removal effort undertook.
A motion summary judgment granted only should be pleadings, depositions, affidavits and other documents demonstrate there is no genuine issue of material fact that the is entitled to movant judgment as a (Erasmus Chicago Housing Authority matter of law. 407 N.E.2d Because defendant created no unnatural by permitting accumulation of snow and ice its business operate invitees to provided motor vehicles in the for their use therefore, may, because defendant in its said snow removal effort be formation, to have left only a natural ice there remains no issue of material properly granted the trial court defendant’s motion summary judgment.
Affirmed.
KASSERMAN, J., concurs. HARRISON, dissenting: JUSTICE
I must respectfully dissent.
As
stated,
the majority opinion
obligation
landowner is under no
remove natural accumulations of snow and
property. (Hankla
ice from his
v. Burger
Systems,
Inc.
Likewise,
Chef
the mere removal of snow and
exposing
of a natural
ice surface
beneath does not itself
v. Turski
constitute negligence.
103 Ill. App.
Nevertheless,
3d 36.)
property
charged with
owners are
negligence when
the ice
which plaintiff falls accumulates either as a
result of the owner’s aggravating a natural condition or
of his
engaging
new,
gives
conduct which
rise .to a
unnatural or artificial
condition.
example,
For
plowed
cases where fallen snow was
into
melted, drained,
refroze,
formations which
and then
the new frozen ac
cumulation was termed unnatural. See Fitzsimons v. National Tea Co.
(1961),
However, it is always clear which accumulations are natural and which are unnatural. As the Hankla when Fourth District observed impose refused to liability on the in a fall injuries landowner for sustained *5 cited, we nor have parties from snow-covered curb: “The have not found, an the differences between Illinois court which has detailed Systems, natural (Hankla Burger and unnatural accumulations.” v. Chef Timmons, App. Inc. Ill. 3d Likewise case, factually specifically case declined to “de present similar to the we a natural termine constitutes compaction by whether such motor vehicles * * *." instead, court, plain or an unnatural This set aside accumulation $20,000 showing that tiff’s verdict because he failed to introduce evidence defendant and ice at the caused an unnatural accumulation of snow 36, 38, 430 where fell. v. 103Ill. Turski determination, Therefore, 1135, 1137.) presented the issue for our unaddressed, previously formation on a business type is whether this icy owner’s The lot could constitute an unnatural accumulation. ridges and ruts allegedly on the lot surface were formed driving traffic the lot after a snowfall. The automobile occurred because of onto the implied defendant’s invitation to enter premises Thus, purposes. business character of the initial natural changed accumulation con as a result of defendant’s use of the area circumstances, cerned. ridges Under such ruts in the lot would constitute unnatural accumulations ice and effect defendant. Summary judgment depo granted only pleadings, should be sitions, affidavits, is no and other documents demonstrate that there genuine issue of material as a fact and that movant is entitled to matter (Erasmus of law. Chicago Housing Authority 142, I auto ridges Because feel that frozen ruts and caused accumulation, mobile traffic would an unnatural I believe there constitute remain issues of this condition existed material fact as to whether on the parking lot the condition evening surface on the how whether, developed, plaintiff’s proximate cause of alleged injuries. Consequently, judge’s grant decision to defendant’s summary motion for court’s judgment was in error. would reverse the order and this proceedings. remand cause for further