                                                                              FIFTH DIVISION
                                                                              July 25, 2008



No. 1-07-0819

DONALD E. FLIGHT,                                              )       Appeal from the
                                                               )       Circuit Court of
       Plaintiff-Appellant,                                    )       Cook County.
                                                               )
v.                                                             )       No. 04 L 2729
                                                               )
AMERICAN COMMUNITY MANAGEMENT, INC.,                           )
WESTGATE VALLEY TOWNHOMES                                      )
CONDOMINIUM ASSOCIATION, and HARTMAN                           )
AND SONS LANDSCAPING, INC.,                                    )       The Honorable
                                                               )       Elizabeth M. Budzinski,
       Defendants-Appellees.                                   )       Judge Presiding.

       PRESIDING JUSTICE FITZGERALD SMITH delivered the opinion of the court:

       In this slip and fall personal injury action, plaintiff Donald Flight appeals from a grant of

summary judgment in favor of defendants American Community Management, Inc., Westgate

Valley Townhomes Condominium Association, and Hartman & Sons Landscaping, Inc. On

appeal, he contends the circuit court improperly based its ruling on the Snow and Ice Removal

Act (Act) (745 ILCS 75/0.01 et seq. (West 2006)), which he claims is in derogation of the

common law. Defendant Hartman & Sons Landscaping, Inc. (Hartman), has filed one response

brief and defendants American Community Management, Inc., and Westgate Valley Townhomes

Condominium Association have filed a separate response adopting Hartman's.1 We affirm.

       Plaintiff was an owner and resident of a condominium in the Palos Heights, Illinois,

subdivision of Westgate Valley Townhomes. Defendant Westgate Valley Townhomes

Condominium Association (Association) was an organization of the condominium owners,

       1
           Accordingly, we refer to points raised in Hartman's brief as those raised by defendants.
No. 1-07-0819

defendant American Community Management, Inc. (ACM), was the management company for

the condominium complex, and defendant Hartman was the contractor hired to remove snow and

ice from the common areas of the complex.

       On January 8, 2004, at about 6 p.m., plaintiff exited his car and was walking on the

driveway to his and a neighboring unit when he allegedly slipped and fell on ice. It was dark

outside and the day had been cold and clear. At the time of the accident, plaintiff believes, the

temperature was below freezing. Plaintiff felt his right foot "give way" and he slid forward; he

believes that he slipped on ice. He did not recall seeing any snow on the driveway or seeing any

snow melting.

       Plaintiff recalled the last snowfall before his accident took place on January 3, 2004. He

believed that the day after the snowfall there had been "a slight rain."

       In March 2004, plaintiff filed a single-count action against defendants alleging they were

negligent in allowing a "snowy and/or icy area to exist on the only pathway" to his condominium

unit and in allowing the area " to remain covered with snow and/or ice," among other things. He

alleged that defendants' negligence caused him to slip and fall, and thereby suffer personal

injuries. Plaintiff subsequently amended the complaint to include a second count directed

specifically at the removal of snow by Hartman. In addition to raising essentially the same

allegations initially, in the amended complaint plaintiff also alleged that Hartman failed to apply

a de-icing agent to keep the area from freezing.

       In 2006, Hartman filed a motion for summary judgment, as did the other defendants

shortly thereafter. Among the undisputed facts were the following: plaintiff did not recall seeing


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No. 1-07-0819

any snow melting on the day of his accident, nor did he recall any snow on that day; the last

snowfall that plaintiff recalled was approximately five days before, on January 3; plaintiff did not

recall any depressions or holes in the driveway that would cause it to retain water; and he

believed that, since the snowfall on January 3, there had been "a slight rain." In its motion,

Hartman alleged that it was hired to remove snow after a snowfall of more than two inches, but it

never salted sidewalks or driveways; rather, any salting or de-icing was done only upon request

of ACM. Hartman based its motion on the absence of any duty to remove natural accumulations

of snow or ice, and the absence of any duty other than that defined by contract. Further, Hartman

urged application of provisions of the Act that remove liability for personal injuries allegedly

caused by icy conditions upon a walkway absent willful and wanton misconduct because plaintiff

was using the driveway as a walkway.

       On March 2, 2007, following a hearing, the court entered written orders granting the two

separate motions for summary judgment in favor of defendants. Plaintiff timely filed this appeal.

       On appeal, plaintiff contends that the court failed to follow rules of statutory construction

concerning strict construction of the Act, which he further claims is in derogation of the common

law and was improperly applied here.

       The purpose of a summary judgment motion is to determine whether a genuine issue of

material fact exists which should be tried. Purtill v. Hess, 111 Ill. 2d 229, 240 (1986); Crane v.

Triangle Plaza, Inc., 228 Ill. App. 3d 325, 328 (1992). Summary judgment is appropriate where

"the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to judgment


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No. 1-07-0819

as a matter of law." 735 ILCS 5/2-1005(c) (West 2006). The grant of summary judgment is

reviewed de novo. Judge-Zeit v. General Parking Corp., 376 Ill. App. 3d 573, 578 (2007);

McBride v. Taxman Corp., 327 Ill. App. 3d 992, 995 (2002).

       Under section 1 of the Act, it is declared public policy that "owners and others residing in

residential units be encouraged to clean the sidewalks abutting their residences of snow and ice."

745 ILCS 75/1 (West 2006). Section 1 provides that "[t]he 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." 745 ILCS 75/1 (West 2006). Section 2 of the

Act imposes liability for personal injuries only where there is willful or wanton conduct:

                       "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." 745 ILCS 75/2 (West 2006).

       Defendants claim that summary judgment was proper because, among other things,

plaintiff failed to provide any evidence that he slipped on anything other than a natural

accumulation of ice. We agree.

       Defendants acknowledge that the court's written order stated that the summary judgment

was based on the Act. However, they also note that review is de novo and this court may affirm


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No. 1-07-0819

the order on any basis. See Aetna Casualty & Surety Co. v. James J. Benes & Associates, Inc.,

229 Ill. App. 3d 413, 417 (1992). With that in mind, defendants assert that the order could have

been granted on plaintiff's failure to present any evidence that his fall occurred on anything other

than a natural accumulation of ice.

       At the summary judgment stage, although the plaintiff need not prove his cause, he must

present some evidentiary facts to support the elements of his cause of action. Aetna Casualty,

229 Ill. App. 3d at 416. See also Hanna v. Marshall Field & Co., 279 Ill. App. 3d 784, 790

(1996). To state a cause of action for negligence, the plaintiff must allege facts sufficient to

show the existence of a duty, a breach of that duty, and injury to the plaintiff which is

proximately caused by that breach. Mt. Zion State Bank & Trust v. Consolidated

Communications, Inc., 169 Ill. 2d 110, 116 (1995); Crane, 228 Ill. App. 3d at 328.

       The general rule is that there is no duty to remove natural accumulations of snow or ice.

McBride, 327 Ill. App. 3d at 996; Eichler v. Plitt Theatres, Inc., 167 Ill. App. 3d 685, 688 (1988).

Where a management company merely retains a snow removal contractor on behalf of the owner,

it does not have a contractual obligation to remove snow or ice. McBride, 327 Ill. App. 3d at

996-97. Further, where a contractor has entered into a contract to undertake snow removal, the

scope of the duty is determined by the terms of the contract. McBride, 327 Ill. App. 3d at 996-

97; Eichler, 167 Ill. App. 3d at 689. Where a duty has been imposed on a snow removal

contractor, the duty was only not to negligently remove snow by creating or aggravating an

unnatural accumulation of ice and snow. McBride, 327 Ill. App. 3d at 996. Rather, the plaintiff

must, to prevail in his action, show that the ice upon which he allegedly fell was an unnatural


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No. 1-07-0819

accumulation created by the defendant. Eichler, 167 Ill. App. 3d at 692.

        In the instant case, as defendants point out, according to the record, Hartman cleared the

snow that fell on or about January 3 pursuant to its contract and plaintiff failed to present any

evidence to show that Hartman did so improperly. Further, there is nothing in the record to make

the requisite showing that the ice upon which plaintiff fell was an unnatural accumulation. See

Eichler, 167 Ill. App. 3d at 692. To the contrary, the record shows that plaintiff concedes that

after the snow removal, it had rained and the rain froze. Therefore, summary judgment was

properly granted on the basis of an absence of showing of an unnatural accumulation.

        Given this conclusion, we address only briefly plaintiff's contention that the Act was

improperly applied. Plaintiff bases his contention that the Act does not apply primarily on his

insistence that a driveway is distinct from a sidewalk and, thus, the location of his accident did

not come within the purview of the Act. He asserts that a "driveway" is defined as a road "for

driving on," while a "sidewalk" is defined as a "paved walkway" or "path for pedestrians." Yet,

plaintiff alleges that he was, in essence, using the driveway as a walkway when he fell.

        This court has previously addressed contentions almost exactly the same as that raised by

plaintiff. In those instances, this court has rejected arguments, similar to plaintiff's, that the Act

did not apply to bar claims concerning a fall on a "walkway" rather than a sidewalk or that the

sidewalk must be a public sidewalk bordering the residential property rather than a walkway

entirely on private property (Bremer v. Leisure Acres-Phase II Housing Corp., 363 Ill. App. 3d

581, 584 (2006); Kurczak v. Cornwell, 359 Ill. App. 3d 1051, 1057-59 (2005)); it has also

rejected contentions that the Act did not apply where the fall took place on a "stoop" that was


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No. 1-07-0819

part of a paved walkway from the building to the parking lot (Yu v. Kobayashi, 281 Ill. App. 3d

489, 492-93 (1996)). In so deciding, the court has considered other paved surfaces upon which

the plaintiff walked and found each such walkway to be sufficiently akin to a "traditional"

sidewalk such that the Act applied. Kurczak, 359 Ill. App. 3d at 1058; Yu, 281 Ill. App. 3d at

493. Given plaintiff's allegations that he was "walking to his unit" on the driveway, under

Bremer, Kurczak, and Yu, the driveway was sufficiently akin to a sidewalk such that the

application of the Act was proper. Here, the Act was properly applied to bar plaintiff's claim.

Finding that the Act was properly applied as a basis for granting summary judgment, we need not

reach plaintiff's related contention that the Act is in derogation of the common law and, thus, we

reject plaintiff's suggestion to consider the issue as one of first impression.

       Therefore, because there is nothing in the record to show that there was any unnatural

accumulation of ice on the driveway surface upon which plaintiff allegedly fell, the court

properly granted summary judgment in favor of defendants. Accordingly, the orders granting

summary judgment are affirmed.

       Affirmed.

       GALLAGHER and O'MARA FROSSARD, JJ., concur.




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             No. 1-07-0819
__________________________________________________________________________________________________________________________
                                 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                                             (Front Sheet to be Attached to Each Case)
_________________________________________________________________________________________________________________________
Please use the following
form                     Donald E. Flight,

                                                    Plaintiff-Appellant,

                           v.

                           American Community Management, Inc., Westgate Valley Townhomes Condominium
                           Association, and Hartman and Sons Landscaping, Inc.,

                                                    Defendants-Appellees.

_____________________________________________________________________________________________
                                            No.   1-07-0819
 Docket No.
                                          Appellate Court of Illinois
COURT                                     First District, FIFTH Division
 Opinion
  Filed                                      July 25, 2008
                                         (Give month, day and year)
 __________________________________________________________________________________________
                      PRESIDING JUSTICE JAMES FITZGERALD SMITH DELIVERED THE OPINION OF THE
                   COURT:

                            JUSTICES                      GALLAGHER and O'MARA FROSSARD, JJ.                    concur.

                                     Lower Court and Trial Judge(s) in form indicated in margin:
APPEAL from the
Circuit Court of Cook                               Appeal from the Circuit Court of Cook County.
County; the Hon________
Judge Presiding.                                      The Hon. ELIZABETH M. BUDZINSKI Judge presiding.
__________________________________________________________________________________________________________________________
                         Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word r
FOR APPELLANTS                                                       NONE if not represented.
John Doe, of Chicago

For APPELLEES, :         APPELLANT: JOSEPH A. TERC, Arlington Heights, IL Joseph A. Terc.
 _________________________________                         __
Smith and Smith of
Chicago,                 APPELLEES AMERICAN COMMUNITY MANAGEMENT, INC. and WETGATE VALLEY TOWNHOMES
                         CONDOMINIUM ASSOCIATION: MICHAEL W. RATHSACK, Chicago, IL Mark W. Reinke and Michael W.
                         Rathsack.

                            APPELLEE HARTMAN AND SONS LANDSCAPING, INC.: BRUCE FARREL DORN & ASSOCIATES, Chicago, IL
                            Ellen J. O'Rourke and Kenneth E. Klimczak.
               __________________________________________________________________________________________________
(Joseph Brown, of counsel)
Add attorneys for third-
party appellants and/or
appellees.




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No. 1-07-0819




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