                                    Illinois Official Reports

                                            Appellate Court



                             Ryan v. Glen Ellyn Raintree Condominium Ass’n,
                                        2014 IL App (2d) 130682




Appellate Court                MARY RYAN, Plaintiff-Appellant, v. GLEN ELLYN RAINTREE
Caption                        CONDOMINIUM ASSOCIATION, GLEN ELLYN RAINTREE
                               CONDOMINIUM-ASHFIELD HOUSE OWNERS ASSOCIATION,
                               and CDH PROPERTIES, INC., Defendants-Appellees.


District & No.                 Second District
                               Docket No. 2-13-0682


Filed                          April 11, 2014


Held                           An action for the injuries plaintiff suffered when she slipped on an ice
(Note: This syllabus           patch on a sidewalk in the condominium complex where she lived was
constitutes no part of the     barred by section 2 of the Snow and Ice Removal Act, which negates
opinion of the court but       liability for injuries arising from a residential property owner’s acts or
has been prepared by the       omissions in attempting to remove snow or ice from sidewalks
Reporter of Decisions          abutting the property “unless the alleged misconduct was willful or
for the convenience of         wanton,” since plaintiff initially attributed her fall to the failed snow
the reader.)                   and ice removal efforts of defendants, thereby raising a prima facie
                               case for the application of the Act, and her attempt to assert a new
                               claim in her reply brief by arguing that the ice patch on which she fell
                               was caused by a design defect in an awning that allowed water to drip
                               onto the sidewalk and freeze was improper.



Decision Under                 Appeal from the Circuit Court of Du Page County, No. 10-L-83; the
Review                         Hon. Ronald D. Sutter, Judge, presiding.



Judgment                       Affirmed.
     Counsel on              Bradley N. Pollock and Adam C. Kruse, both of Walsh, Knippen,
     Appeal                  Pollock & Cetina, Chtrd., of Wheaton, for appellant.

                             James D. Komsthoeft, of Abramson, Murtaugh & Coghlan, of
                             Chicago, for appellees.




     Panel                   JUSTICE BIRKETT delivered the judgment of the court, with
                             opinion.
                             Justices Hutchinson and Spence concurred in the judgment and
                             opinion.




                                             OPINION

¶1        Plaintiff, Mary Ryan, appeals the trial court’s summary judgment in favor of defendants,
       Glen Ellyn Raintree Condominium Association, Glen Ellyn Raintree Condominium-Ashfield
       House Owners Association, and CDH Properties, Inc., on plaintiff’s negligence complaint
       against them. For the following reasons, we hold that, as a matter of law, the Snow and Ice
       Removal Act (Act) (745 ILCS 75/1 et seq. (West 2012)) bars plaintiff’s negligence suit.
       Thus, we affirm.

¶2                                         I. BACKGROUND
¶3         Defendants Glen Ellyn Raintree Condominium Association and Glen Ellyn Raintree
       Condominium-Ashfield House Owners Association (collectively, Raintree) own and control
       the common areas of a condominium complex in Glen Ellyn. In February 2008, plaintiff was
       injured when she slipped and fell within one of the common areas of the complex. Her fall
       occurred just outside the entrance of a building within the complex. At the time of the
       accident, Raintree had ongoing contracts with defendant CDH Properties, Inc. (CDH), to
       maintain the premises, and with Building Maintenance Systems, Inc. (BMS), to remove snow
       and ice. Plaintiff brought suit against Raintree, CDH, and BMS. BMS was later dismissed
       from the lawsuit, and so we address plaintiff’s complaint only as it relates to Raintree and
       CDH. Plaintiff alleged in her complaint that she slipped on a patch of ice that had formed
       because of water dripping from an overhead awning and then freezing on the walkway
       below. Defendants were negligent, plaintiff claimed, because they (1) failed to correct a
       design flaw in the awning that directed melted snow and rainwater onto the walkway below;
       and (2) voluntarily undertook to remove snow and ice from the premises but failed to clear
       the particular patch of ice on which she slipped.
¶4         Defendants moved for summary judgment on two principal grounds. First, defendants
       invoked the common-law rule that landowners have no duty to remove natural accumulations
       of snow or ice (see, e.g., Greene v. Wood River Trust, 2013 IL App (4th) 130036, ¶ 14), and

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       claimed that the ice on which plaintiff slipped was entirely a natural accumulation. Second,
       and alternatively, defendants maintained that plaintiff’s suit was barred by section 2 of the
       Act (745 ILCS 75/2 (West 2012)), which eliminates liability for injuries resulting from a
       residential property owner’s acts or omissions in attempting to remove snow or ice from
       sidewalks abutting the property, “unless the alleged misconduct was willful or wanton.” In
       this connection, defendants contended, first, that plaintiff’s claim fell within the scope of
       section 2 because she was alleging that the ice patch on which she slipped resulted from
       defendants’ failed snow removal efforts. Defendants pointed to deposition testimony that
       such removal efforts were ongoing in February 2008. Specifically, defendant had retained
       BMS to remove snow and ice, and CDH not only inspected the premises weekly for snow
       and ice hazards but also inspected the premises after each visit by BMS, to ensure that it had
       performed its work properly. Defendants further contended that there was no evidence of
       willful or wanton omissions in their removal efforts.
¶5         In response, plaintiff disagreed with defendants’ construal of her claim. She maintained
       that her complaint alleged liability based on an architectural feature of the premises and not
       on any omission by defendants in their snow and ice removal efforts. According to plaintiff,
       the Act did not eliminate liability for injuries resulting from design defects. To support her
       claim of a design defect, plaintiff attached the deposition of Steven Weiss, an architect, who
       opined that the ice patch on which plaintiff slipped resulted not from ordinary precipitation
       but from an awning that directed water onto the walkway.
¶6         The trial court agreed with defendants that, no matter how the ice patch was formed,
       defendants’ immediate or proximate negligence, as alleged by plaintiff, was in failing to
       remove the patch despite their general snow and ice removal efforts. Hence, plaintiff was
       indeed alleging “acts or omissions” by defendants in their snow and ice removal efforts, and
       so her claim fell squarely within section 2 of the Act. Accordingly, the trial court entered
       summary judgment for defendants on all counts of plaintiff’s complaint.
¶7         Plaintiff filed this timely appeal.

¶8                                            II. ANALYSIS
¶9         In assessing plaintiff’s challenge to the summary judgment, we first set forth the
       principles governing our review of such a judgment. The purpose of summary judgment is
       not to adjudicate a question of fact, but to determine if one exists. Adams v. Northern Illinois
       Gas Co., 211 Ill. 2d 32, 42-43 (2004). Summary judgment should be granted only where the
       pleadings, depositions, admissions, and affidavits on file, when viewed in the light most
       favorable to the nonmoving party, show that there is no genuine issue as to any material fact
       and that the moving party is clearly entitled to a judgment as a matter of law. 735 ILCS
       5/2-1005(c) (West 2012); Adams, 211 Ill. 2d at 43. The interpretation of a statute, which our
       resolution of this appeal entails, presents a question of law suitable for resolution by
       summary judgment. Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 330 (2006). We review
       de novo the grant or denial of summary judgment. Adams, 211 Ill. 2d at 43.
¶ 10       As has been recognized, the Act is in derogation of the common law. Greene, 2013 IL
       App (4th) 130036, ¶ 16. According to plaintiff, the Act abrogated only in part the
       common-law bases on which a property owner could be liable for injuries due to
       accumulated snow or ice on the property, and she asserts that her lawsuit is premised on
       those unaffected bases for liability.

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¶ 11       To understand and assess this argument, we first set forth the common-law duties of a
       landowner with respect to accumulated snow or ice. Webb v. Morgan, 176 Ill. App. 3d 378,
       382-83 (1988), cited by plaintiff, accurately states the common law on the issue:
                     “The general rule in Illinois is that a property owner owes no common law duty to
                remove natural accumulations of ice and snow from common areas which remain
                under his control and thus cannot be found liable for injuries resulting from a natural
                accumulation of ice and snow. [Citation.] However, when the property owner chooses
                to remove ice and snow, he is charged with the duty of exercising ordinary care in the
                accomplishment of that task. [Citation.] The property owner, then, has no duty to
                remedy a natural accumulation of ice and snow. His duty is to prevent an unnatural
                accumulation on his property, whether that accumulation is the direct result of the
                owner’s clearing of the ice and snow, or is caused by design deficiencies that promote
                unnatural accumulations of ice and snow. [Citation.] The plaintiff has the burden of
                affirmatively proving that the ice and snow on which she fell was an unnatural
                accumulation caused by the defendant. [Citation.]”
       The essence here is that, under the common law, only unnatural accumulations of snow or
       ice, i.e., accumulations caused by the property owner or his agents, can be a ground for
       liability. Plaintiff emphasizes the Webb court’s twofold catalogue of the man-made causes of
       unnatural accumulations: (1) snow and ice removal efforts; and (2) design deficiencies.
       According to plaintiff, the Act abrogates liability for only theory (1), not theory (2).
¶ 12       Before moving on to the Act, we take pains to be precise about what the common law
       holds. Liability theory (1) concerns snow and ice removal efforts that themselves create
       unnatural accumulations. See, e.g., Fitzsimons v. National Tea Co., 29 Ill. App. 2d 306,
       311-12 (1961) (snow plowed into large mounds melted, creating an incline of ice on which
       the plaintiff slipped). Theory (2) is based ultimately on a design or construction defect. See,
       e.g., Lapidus v. Hahn, 115 Ill. App. 3d 795, 800-01 (1983) (plaintiff slipped on “ice [that]
       was caused by the defective nature and construction of the roof,” from which “water
       repeatedly dripped in torrents”). We say “ultimately” because theory (2) also presupposes
       more immediate negligence. Liability under theory (2) is based on a design or construction
       defect coupled with passivity by the owner–specifically, nonexistent or ineffective efforts at
       removing the accumulation resulting from the defect. Thus, this basis for liability always
       assumes (barring a reason for strict liability) the more immediate negligence consisting of the
       defendant’s failure to clear the particular unnatural accumulation of snow or ice that led to
       the plaintiff’s injury. After all, an owner of property with myriad defects that promote
       unnatural accumulations of snow or ice can avoid liability as long as the owner clears or
       neutralizes such accumulations before they cause injury.
¶ 13       We turn to the text of the Act. Section 1 (745 ILCS 75/1 (West 2012)) sets forth the
       legislative findings behind, and purpose for, the Act:
                “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.”
       Section 2 (745 ILCS 75/2 (West 2012)) is the operative provision:

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               “Any owner, lessor, occupant or other person in charge of any residential 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.”
¶ 14       We now turn to plaintiff’s proposed interpretation of sections 1 and 2. “[A] statute in
       derogation of the common law cannot be construed as changing the common law beyond
       what the statutory language expresses or is necessarily implied from what is expressed.”
       Williams v. Manchester, 228 Ill. 2d 404, 419 (2008). Plaintiff argues that the Act, read with
       the appropriate strictness, does not apply to defendants. Quoting language from sections 1
       and 2, plaintiff reasons:
               “[T]he plain language of the Act does not support an interpretation that the legislature
               intended immunity to attach in situations where the personal injuries were alleged to
               be caused by ‘the snowy or icy condition of the sidewalk resulting from’ something
               other than the property’s owner’s removing or attempting to remove snow or ice from
               sidewalks, such as a construction defect that causes an unnatural accumulation of
               snow or ice. In the latter situation, the property owner’s potential liability would not
               be ‘due to his or her efforts in the removal of snow or ice from such sidewalks.’ It
               would be ‘due to’ his or her creating or maintaining a construction defect that caused
               an unnatural accumulation of ice or snow on the property.
                                                    ***
                   *** Extending the statute to provide immunity for icy conditions resulting from
               construction defects *** would effect the most–rather than the least–change in the
               common law. It would amount to a repeal or preemption of a common-law remedy by
               implication. And it would amount to a presumption by this Court that the legislature
               intended to abrogate the common law, where such intent was not clearly or plainly
               expressed.”
       Plaintiff submits that the Act does not apply here because she is “not alleging *** that the ice
       [that caused her fall] was due to [d]efendants’ efforts at snow removal,” but rather that “the
       unnatural accumulation of ice was due to the defective awning structure that existed at the
       premises.” Thus, according to plaintiff, the Act eliminated common-law theory (1) alone, and
       consequently, because she is not alleging that defendants positively created the ice
       accumulation through their snow and ice removal efforts, the Act does not apply.
¶ 15       We disagree. The text of the Act, accorded its plain and ordinary meaning, is our primary
       resource for determining the legislature’s intent (see Metropolitan Life Insurance Co. v.
       Hamer, 2013 IL 114234, ¶ 18), and that text leaves no doubt as to the legislature’s intent.
       Section 1 expresses the public policy that residential property owners be encouraged to make
       efforts at removing snow and ice accumulations from their sidewalks. 745 ILCS 75/1 (West
       2012). Consistent with this policy, the legislature declares it “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.” 745 ILCS 75/1 (West 2012). Section 2 clarifies that the phrase, “due to *** efforts
       in removal of snow or ice,” is not limited to occasions falling under common-law theory (1),
       where snow and ice removal efforts positively create the accumulation leading to the

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       plaintiff’s injury. Instead, section 2 eliminates (subject to the “willful or wanton” qualifier)
       liability for “acts or omissions” in snow and ice removal efforts, i.e., for activity or passivity
       in such efforts. An example of an “act” leading to an ice accumulation would be a property
       owner’s clearing a sidewalk by shoveling snow into banks alongside the walk, with the snow
       subsequently melting and forming ice across the surface. See Fitzsimons, 29 Ill. App. 2d at
       311-12 (similar mechanism for a slip-and-fall in a parking lot). An example of an “omission”
       leading to an ice accumulation would be a property owner’s failure to clear ice formed by
       water dripping from a defective roof. See Lapidus, 115 Ill. App. 3d at 800-01. (Of course,
       both scenarios contain elements of act and omission, and the division is based on what
       elements are predominant for purposes of section 2.) In the first scenario, the efforts at snow
       and ice removal are both the alleged basis for liability and the grounds for immunity. In the
       second scenario, where liability is based on omission, immunity is available only where the
       property owner “remove[d] or attempt[ed] to remove snow or ice from [the] sidewalks” (745
       ILCS 75/2 (West 2012)), but, nonetheless, an accumulation occurred and injured the plaintiff.
       A property owner who remains entirely inactive in the face of a snow or ice accumulation
       cannot avail himself of the Act for an injury caused by that accumulation. Our resolution of
       this appeal does not, however, require us to decide the extent to which the owner must have
       removed or attempted to remove snow and ice for the Act to apply. We restrict ourselves to
       plaintiff’s contention on appeal, which is that immunity under the Act extends only to
       situations where the accumulation that injured the plaintiff was positively created by the
       owner’s snow and ice removal efforts.
¶ 16       We recognize, again, that a statute’s derogation of the common law must not be held to
       extend beyond what is expressed or necessarily implied. Section 2 plainly conveys an intent
       to insulate from liability (barring willful or wanton conduct) attempted snow and ice removal
       efforts that, by either commission or omission, lead to the snow or ice accumulations that
       cause the plaintiff’s injury. Contrary to plaintiff’s interpretation, section 2 neither expresses
       nor necessarily implies an intent to exclude “acts or omissions” in snow and ice removal
       where the accumulation did not stem from the property owner’s positive efforts at snow and
       ice removal. The source of the accumulation might figure into whether the defendant’s
       conduct was willful or wanton, but there is no categorical exclusion of immunity based on
       the accumulation’s source. Not only is plaintiff’s proposed construction far from compulsory,
       it runs squarely against the canon that prohibits reading into an enactment exceptions,
       limitations, or conditions that the legislature did not express. See Metropolitan Life, 2013 IL
       114234, ¶ 18.
¶ 17       In support of her interpretation of the Act, plaintiff cites the Fourth District Appellate
       Court’s decision in Greene. The plaintiff in Greene sued after she slipped on ice outside a
       residence she leased from the defendants. She alleged that the ice stemmed from the
       defendants’ defective or improperly maintained roof, gutters, and downspouts. The plaintiff
       did not allege any efforts by the defendants to clear snow and ice from the property. The
       defendants moved to dismiss the complaint, based on the affirmative defense that they were
       immune under the Act. In support of the motion, the defendants submitted a contract, in
       effect at the time of the accident, with a third party for snow and ice removal services at the
       property. The trial court dismissed the complaint, but the appellate court reversed, holding
       that the Act did not apply to bar the lawsuit:



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                    “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 ice or snow, causing an unnatural accumulation.
               We presume the legislature was familiar with the aforementioned common law cause
               of action. [Citation.] 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).
                    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.
                    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.” (Emphasis added.) Greene, 2013 IL App (4th) 130036, ¶¶ 17-19.
¶ 18       This passage, particularly the italicized portion, seems to suggest that the court was
       finding the Act inapplicable because the plaintiff did not allege failed snow removal efforts.
       Later in its analysis, distinguishing a case from the First District Appellate Court (Pikovsky v.
       8440-8460 North Skokie Boulevard Condominium Ass’n, 2011 IL App (1st) 103742), the
       court again noted that “allegations of snow removal efforts are notably absent here” (Greene,
       2013 IL App (4th) 130036, ¶ 21). As mentioned (supra ¶ 15), we agree that immunity under
       the Act requires an attempt at snow and ice removal. The Greene court, however, added a
       further comment about Pikovsky:
               “Further, to the extent Pikovsky holds that an owner’s contracting for snow and ice
               removal equates to snow and ice removal efforts under the Act, we decline to adopt
               this holding. [Citation.] We conclude the plain language of the statute so constrains
               us.” Id.
¶ 19       The Greene court did not indicate what language in the Act it believed compelled the
       conclusion that a contract for snow and ice removal does not constitute removal efforts under
       the Act. Our own review of the Act finds nothing to support that position. As a decision of a
       sister district, Greene does not bind us. See In re Marriage of Dann, 2012 IL App (2d)
       100343, ¶ 83. Greene is unpersuasive as well.
¶ 20       We note that, strictly speaking, plaintiff is not concerned in this appeal with whether
       defendants made efforts to remove the ice accumulating from another source (namely, the
       allegedly defective awning), for plaintiff’s position is that such efforts would be immaterial

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under the Act because they would not have positively created the accumulation. We have
rejected the proposed statutory construction upon which plaintiff bases that contention. We
now proceed to note that plaintiff’s allegations of defendants’ snow and ice removal efforts
bring this case within the scope of the Act as we have interpreted it. Plaintiff alleges that
defendants undertook to remove snow and ice on the premises and that their acts or
omissions in that general effort led to her fall. First, plaintiff alleges that defendants
“voluntarily undertook to remove snow/ice and/or apply de-icing agents to the sidewalk in
front of the building.” Plaintiff proceeds to allege that defendants are “guilty of one or more
of the following negligent acts and/or omissions”:
             “(a) Carelessly and negligently failed to take reasonable precautions to ensure that
         an unnatural accumulation of ice did not accumulate on the sidewalk/walkway of the
         premises; or
             (b) Carelessly and negligently installed, designed, constructed and located the
         entrance/exit structure or overhang/awning, such that it created a dangerous and
         defective condition by causing an unnatural accumulation of ice on the
         sidewalk/walkway of the premises; or
             (c) Carelessly and negligently allowed the entrance/exit structure or
         overhang/awning on the premises to exist in such a way that it created a dangerous
         and defective condition by causing an unnatural accumulation of ice on the
         sidewalk/walkway of the premises; or
             (d) Carelessly and negligently failed to warn people lawfully on the premises[ ] of
         the dangerous and defective condition existing on the premises; or
             (e) Carelessly and negligently allowed an unnatural accumulation of ice to exist
         on the sidewalk/walkway of the premises such that it presented a dangerous and
         defective condition; or
             (f) Carelessly and negligently failed to properly remove the unnatural
         accumulation of ice from the sidewalk/walkway of the premises; or
             (g) Carelessly and negligently failed to guide pedestrian traffic away from the
         snow/ice that existed on the sidewalk/walkway of the premises; or
             (h) Was [sic] careless and negligent in the ownership, occupation, operation,
         management, maintenance and/or control of the premises[,] resulting in Plaintiff
         slipping and falling.” (Emphasis added.)
Here, the ultimate cause that plaintiff alleges is a defect in the awning, while the more
immediate cause she alleges is a lapse in defendants’ voluntarily undertaken snow and ice
removal efforts. As plaintiff attributes her fall to the consequences of defendants’ failed snow
and ice removal efforts, the Act has prima facie application to her claim. As noted
(supra ¶ 15), we do not address whether defendants’ attempts at snow and ice removal were
sufficient to trigger the Act’s immunity. We also do not address whether defendants’ conduct
was willful or wanton as contemplated by section 2. In her reply brief, plaintiff contends, for
the first time on appeal, that defendants are subject to liability because they knew or should
have known about the defective structure of the awning. The sole thrust of plaintiff’s opening
brief, however, is that the Act is inapplicable because the ice accumulation on which plaintiff
slipped was created by a design defect, not by defendants’ positive snow and ice removal
efforts. Plaintiff’s attempt to bring a new contention in her reply brief is improper. See Ill. S.


                                            -8-
       Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (“Points not argued [in the opening brief] are waived and
       shall not be raised in the reply brief ***.”); Franciscan Communities, Inc. v. Hamer, 2012 IL
       App (2d) 110431, ¶ 19 (“[A]rguments may not be raised for the first time in reply briefs.”).
¶ 21       Consequently, we find no error in the trial court’s holding that the Act applies to bar
       plaintiff’s suit.

¶ 22                                  III. CONCLUSION
¶ 23      For the foregoing reasons, we affirm the judgment of the circuit court of Du Page
       County.

¶ 24      Affirmed.




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