No. 1-17-0437

                                    2018 IL App (1st) 170437


                                                                             FOURTH DIVISION
                                                                             June 14, 2018

                                          No. 1-17-0437

______________________________________________________________________________

                                    IN THE

                        APPELLATE COURT OF ILLINOIS

                           FIRST JUDICIAL DISTRICT

______________________________________________________________________________

RITA HUSSEY,                                    )     Appeal from the
                                                )     Circuit Court of
      Plaintiff-Appellant,                      )     Cook County
                                                )
v.                                              )
                                                )     No. 15 L 876
CHASE MANOR CONDOMINIUM                         )
ASSOCIATION and CONNECTED PROPERTY              )
MANAGEMENT, LLC,                                )     Honorable
                                                )     Kathy M. Flanagan
      Defendants-Appellees,                     )     Judge Presiding.
_____________________________________________________________________________

       JUSTICE ELLIS delivered the judgment of the court, with opinion.

       Presiding Justice Burke and Justice Gordon concurred in the judgment and opinion. 


                                            OPINION

¶1     The question is whether an informal pathway behind a condominium building, through

and beyond a parking area to the rear entrance of the building, is a “sidewalk” under the Snow

and Ice Removal Act’s immunity provision for the removal of snow or ice from a “sidewalk.”

See 745 ILCS 75/2 (West 2012). We hold that it is not a sidewalk. We read the term “sidewalk”

as limited to the municipal right-of-way, the part of the public street reserved for pedestrian use

that abuts private residential property. We reverse the grant of summary judgment for defendants

and remand for further proceedings.

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¶2                                        BACKGROUND

¶3      Plaintiff Rita Hussey slipped and fell on a patch of ice in the rear of her condominium

building in Chicago. She sued the condo association, Chase Manor Condominium Association

(Chase Manor), and the property-management company. Depending on how you interpret

plaintiff’s theory of recovery (a subject of dispute), plaintiff blames her fall on either negligent

snow removal that created an unnatural, icy surface; a defect in the property—a slope in the

pavement—that allowed an unnatural icy surface to form; or both.

¶4      The rear of the building, where the accident occurred, looks not very different from a

standard alley in Chicago. There is a rear entrance to the condo building, which accesses some of

the units but also the building’s laundry room, basement, and utility room. Otherwise, the

principal function of that rear area is to allow for the condo owners in the 14-unit building to

park their cars.

¶5      The parking spaces, so to speak, are delineated by concrete parking blocks. Presumably

due to space constraints, the cars do not all park in the same direction. Some parallel-park against

the rear wall of the building (facing east-west). Others park perpendicular, in a north-south

direction. Obviously, there is a middle space between the parallel-parked cars and the north-

south parked cars—a space at least wide enough for a vehicle to travel to and from the various

parking spaces.

¶6      That middle space is also wide enough, of course, for people to walk through. And unit

owners sometimes did walk through that middle space, either to reach their cars or to access the

building’s rear entrance to do laundry or reach the basement. For some of the unit owners,

including plaintiff, the easiest way to access the laundry facilities was not to travel within the




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interior of the building but to walk outside, around to the back, through that parking area, to the

rear entrance.

¶7     That middle space, between the cars parked parallel to the rear wall and the north-south

parking spaces, is where plaintiff slipped and fell while walking to the laundry room. The condo

association president referred to that area as a “driveway” in his deposition, as cars obviously

drive through that area to and from their respective parking spaces. The person who shoveled the

snow, who once lived in that building, considered this area part of the “parking lot.” Plaintiff

also calls it a “parking lot.” So do defendants, though they hasten to add that it was a “parking

lot” that was “used as a pathway” or a “walkway” or even a “common-area walkway” for

residents to walk to the rear entrance. Indeed, plaintiff herself testified in her deposition that she

was using that area as a “pathway” to the laundry room when she slipped and fell.

¶8     Whatever characterization may be used, it is undisputed that this area where the accident

happened was part of the condo building’s private parking area and an area sometimes used by

unit owners as a walking path to the rear entrance. So without placing too much emphasis on the

precise terminology, for ease of reference, we will refer to it as defendants prefer, as the

“parking-lot pathway.”

¶9     In that area behind the building, there is a slope from the edge of the building down

across the parking-lot pathway and onto the flat surface where the north-south cars park. A day

or two before March 15, 2014, after a heavy snowfall, the condo association directed the man

they hired for snow removal to plow the snow in the rear of the building. He piled the snow up

against the wall of the building. Plaintiff estimated that the pile of snow was about 5½ feet high.

Given the downward slope of the rear area, this pile of snow against the building’s wall was

uphill of the parking-lot pathway.


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¶ 10   On March 15, plaintiff was walking through the parking-lot pathway to use the laundry

room through the rear entrance. She slipped on a patch of ice near one of the parking blocks next

to the building. She broke her ankle and required two surgeries.

¶ 11   Plaintiff filed what ended up as a three-count complaint. She alleged negligence against

Chase Manor and the management company and added a count against Chase Manor for the

alleged negligence of its agent, Jason Jackson, the man Chase Manor hired to shovel the snow.

¶ 12   Plaintiff’s theory, argued and supported by an expert’s affidavit, is that the snow pile

melted when the temperatures warmed; following gravity’s course, the melted snow travelled

downhill onto the parking-lot pathway; the temperatures dropped again, causing the water to re­

freeze; and thus ice formed on the parking-lot pathway.

¶ 13   Defendants moved for summary judgment, arguing that the Snow and Ice Removal Act

provided them immunity for “remov[ing] or attempt[ing] to remove snow or ice from sidewalks

abutting the property.” 745 ILCS 75/2 (West 2012). The trial court agreed with defendants that

the parking-lot pathway was a “sidewalk” within the Act’s meaning, entered summary judgment

for defendants, and denied a motion for reconsideration.

¶ 14                                       ANALYSIS

¶ 15                                             I

¶ 16   Summary judgment is proper when the record reveals no genuine issue of material fact,

and the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012);

Mashal v. City of Chicago, 2012 IL 112341, ¶ 49. The moving party’s right to summary

judgment must be clear and free from doubt. Id. We review de novo the trial court’s grant of a

motion for summary judgment, as well as legal questions such as the construction of a statute.

Murphy-Hylton v. Lieberman Management Services, Inc., 2016 IL 120394, ¶ 16.


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¶ 17   This case concerns the application of the Snow and Ice Removal Act. The Act is in

derogation of the common law—it immunizes certain conduct that, at the common law, would

have subjected a defendant to liability. Id. ¶ 29. So before we decide what the Act immunizes

and what it does not, we briefly review the common law as it existed before the Act, much as our

supreme court recently did in Murphy-Hylton. See id. ¶¶ 19-23.

¶ 18   It was historically true at the common law that owners or possessors of land owed no

duty to remove natural accumulations of snow and ice from their property. Id. ¶ 19. The reason is

that Illinois can have harsh, unpredictable, and rapidly-changing winter weather, and it would

thus be unreasonable to hold landowners to a duty of immediate and effective removal of snow

and ice. Id.; see Tzakis v. Dominick’s Finer Foods, Inc., 356 Ill. App. 3d 740, 748 (2005).

¶ 19   But unnatural accumulations of snow and ice were another story. Owners and possessors

of land historically did owe a duty to prevent unnatural accumulations of snow and ice, provided

they had notice of the dangerous condition. Murphy-Hylton, 2016 IL 120394, ¶ 20. That is, a

defendant could be liable if the snow or ice accumulated “ ‘by artificial causes,’ ” in an

“ ‘unnatural way,’ ” or “ ‘by defendant’s own use of the area *** and creation of the

condition.’ ” Id. (quoting Fitzsimons v. National Tea Co., 29 Ill. App. 2d 306, 318 (1961)).

¶ 20   Generally speaking, liability for unnatural accumulations of snow or ice broke down into

one of two theories of recovery. One of them was liability for a “defective condition” on the

property, often stated as a defendant’s “negligent maintenance” of the property for allowing that

condition to exist. Id. ¶ 21. For example, certain building defects, such as improper gutters or an

improperly pitched roof, could cause an unnatural accumulation of ice. See McLean v. Rockford

Country Club, 352 Ill. App. 3d 229, 238 (2004); Murphy-Hylton, 2016 IL 120394, ¶ 22 (citing

McLean for this proposition).


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¶ 21   The other theory of liability for the unnatural accumulation of snow or ice was the

voluntary-undertaking theory, premised on the idea that owners or possessors of land who

voluntarily undertake to remove natural accumulations of snow and ice must do so reasonably; if

they do so negligently, they are liable for any resulting unnatural accumulation of that snow or

ice. Murphy-Hylton, 2016 IL 120394, ¶ 22. One example, appropriate to our case, is the owner or

possessor of the land piling snow in one area of a parking lot, whereupon it melts, spreads across

the lot, and re-freezes, thus causing an unnatural sheet of ice across portions of the lot. See

Fitzsimons, 29 Ill. App. 2d at 314; Murphy-Hylton, 2016 IL 120394, ¶ 22 (citing Fitzsimons as

example of voluntary-undertaking case).

¶ 22   The Snow and Ice Removal Act was passed in 1979 (see Pub. Act 81-591 (eff. Sept. 14,

1979)) and provided the following immunity:

           “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.” (Emphasis added.) 745 ILCS 75/2 (West 2012). 1

¶ 23   The supreme court recently addressed a question that had divided the appellate courts:

While the Act clearly immunized landowners who voluntarily undertook to “remove snow or

ice” (id.), did the Act also immunize landowners for defective conditions on the property that

caused unnatural accumulations of snow?



       1
         When we discuss “immunity” under the Act, we mean immunity for negligent acts, the only acts
alleged in this case. The Act does not immunize willful and wanton conduct. 745 ILCS 75/2 (West 2012).

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¶ 24   In Murphy-Hylton, 2016 IL 120394, ¶ 29, the supreme court held that the Act did not

abrogate common-law claims of a defective condition on the property that causes an unnatural

accumulation of snow or ice. The supreme court emphasized that statutes in derogation of the

common law must be strictly construed so as not to inadvertently abrogate existing common-law

causes of action. Id. Thus, while the Act clearly abrogated the common-law claim of voluntary

undertaking, the Act did not contain language that clearly abrogated the property-defect claim of

the common law, and the supreme court would not read such language into it. Id.

¶ 25   “In keeping with our rules of statutory construction,” the court wrote, “we cannot

construe a statute that is in derogation of the common law ‘beyond what the words of the statute

express[ ] or beyond what is necessarily implied from what is expressed.’ ” Id. (quoting Adams v.

Northern Illinois Gas Co., 211 Ill. 2d 32, 69 (2004)). A statute repealing common-law claims

should be limited to its “ ‘express language, in order to effect the least—rather than the most—

change in the common law.’ ” Id. (quoting Adams, 211 Ill. 2d at 69-70). A broad reading would

have the effect of repealing common-law claims by implication, which Illinois disfavors. Id.

¶ 26   Though the direct holding of Murphy-Hylton does not govern this case, this recent

decision serves as a cautionary note about an overly broad interpretation of the Act. With that in

mind, we turn to our question.

¶ 27                                            II

¶ 28   The question is what section 2 of the Act means when it immunizes snow-removal efforts

on “sidewalks abutting the property” of a residential landowner. 745 ILCS 75/2 (West 2012).

¶ 29   The parties cite five appellate decisions that have addressed whether a certain piece of

property was a “sidewalk” under the Act. Three of them involved paved walkways on private




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property leading to a residence, while two of them concerned private driveways. All of them, in

various ways, are analogous to the facts before us. We will start with the “driveway” cases.

¶ 30                                             A

¶ 31   Defendant cites a decision from the First District of our appellate court, on which the trial

court also relied, that held that a driveway constituted a “sidewalk” under the Act. In Flight v.

American Community Management, Inc., 384 Ill. App. 3d 540, 541 (2008), the plaintiff slipped

and fell on ice while walking on the driveway to his condominium unit. The trial court granted

summary judgment to the defendants based on the Act, ruling that the driveway was a

“sidewalk” because the plaintiff was walking on it when he fell. The appellate court affirmed on

a different basis—namely, that there was nothing in the record showing any unnatural

accumulation of ice on the driveway surface on which plaintiff allegedly fell. Id. at 544-45.

Because there was no common-law duty to remove natural accumulations of snow or ice and the

record did not support an inference that the ice there was anything but natural, summary

judgment was proper on that alternative ground. Id.

¶ 32   Given this conclusion, the court chose to “address only briefly plaintiff’s contention that

the Act was improperly applied.” Id. at 544. In doing so, the court held that, because the plaintiff

was walking on the driveway toward his unit, the driveway “was sufficiently akin to a sidewalk

such that the application of the Act was proper.” Id. at 545. The court then wrote that it “need not

reach plaintiff’s related contention that the Act is in derogation of the common law.” Id.

¶ 33   Later, a decision of the Second District of this court reached the opposite conclusion and

criticized the holding in Flight. In Gallagher v. Union Square Condominium Homeowner’s

Ass’n, 397 Ill. App. 3d 1037 (2010), the court held that a condominium driveway was not a

“sidewalk” within the meaning of the Act. There, the condo association’s contractor had “plowed


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a single, narrow path up the middle of plaintiff’s driveway, causing the unnatural formation of a

snow mound in front of plaintiff’s garage door, which impeded plaintiff’s access to the garage by

foot or car.” Id. at 1039. It also caused unnatural snow mounds on each side of the path, as well

as the unnatural formation of a sheet of ice, obscured by freshly fallen snow. Id. Unable to park

his vehicle in the garage, the plaintiff parked on the street and walked along the narrow, shoveled

path toward the garage, at which point he slipped and fell, sustaining injuries. Id.

¶ 34   The appellate court held that the Act did not immunize the removal of snow on

driveways. Id. at 1042. A “sidewalk,” it reasoned, is “generally understood to be a ‘walk for foot

passengers usu[ally] at the side of a street or roadway; a foot pavement.’ ” Id. (quoting Webster’s

Third New International Dictionary 2113 (1986)). But a driveway “is commonly understood to

be a surface on which one drives motor vehicles from a street to a private building—‘a private

road giving access from a public thoroughfare to a building or buildings on abutting grounds.’ ”

Id. (quoting Webster’s Third New International Dictionary 692 (1986)).

¶ 35   The court criticized the Flight decision, writing that Flight did not engage in a strict

construction of the Act, as required for statutes in derogation of the common law. Id. at 1045.

Indeed, the court complained, the court in Flight “did not engage in any statutory interpretation,

apply any of the well-recognized principles of statutory construction, or examine the plain

language of the Act.” Id. The court also criticized Flight’s reasoning that the driveway there was

“sufficiently akin” to a sidewalk because the plaintiff had been walking on it when he fell; by

that rationale, “we would be forced to consider any paved surface on which a plaintiff might

walk, whether on a regular basis or only once, a sidewalk under the Act.” Id. at 1046.

¶ 36   Gallagher provides the more comprehensive and proper analysis. Flight, by its own

admission, only “briefly” addressed the statutory question (Flight, 384 Ill. App. 3d at 544), did


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not include that statutory analysis in the summary of its holding at the end because it was

unnecessary to its holding (id. at 545), and explicitly did not reach the argument that the statute,

in derogation of the common law, should be narrowly construed (id.)—which should have been

an indispensable part of any statutory analysis of the Act. See Murphy-Hylton, 2016 IL 120394,

¶ 29. As Gallagher held, reading the term “sidewalk” as including the term “driveway” would be

a liberal, not strict, construction of a statute in derogation of the common law.

¶ 37   Of course, we are not dealing here with a driveway. The parties agree that the area where

the accident occurred was part of the parking area. A parking area, that is, through which unit

owners routinely walked to reach the rear entrance of the building, as plaintiff was doing. Does

that additional fact make a difference?

¶ 38    We don’t see how it could. People walk in every parking lot. Sometimes by necessity—

to get from their parked car to their destination. And sometimes by choice—because it is the

most direct route from one point to another, even if no car is involved at all (as here, with

plaintiff). It is impossible to completely separate walking on foot from a parking lot. If the mere

fact that people walked through this parking area made it a “sidewalk,” then every residential

parking lot in the state of Illinois would be a “sidewalk.”

¶ 39   That would be a dubious proposition in and of itself. Just as driveways are predominantly

defined by vehicular travel (see Gallagher, 397 Ill. App. 3d at 1042), so too are parking areas

understood as involving a vehicle—for without one, there is nothing to “park.”

¶ 40   But consider further our mandate to narrowly construe statutes in derogation of the

common law. Murphy-Hylton, 2016 IL 120394, ¶ 29. The result becomes clearer still. If we read

the phrase “parking lot” into “sidewalk,” we would be engaging in a liberal, not strict

construction of the words. Without the General Assembly having ever mentioned the phrase


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“parking lot”—which it easily could have done—we would be eliminating a common-law

remedy for negligent snow removal in parking lots by implication, which is disfavored. See id.

We would be doing exactly what Murphy-Hylton directs us not to do: expanding immunity under

the statute beyond the express language of the statute and effecting the most—rather than the

least—change in the law. Id.; see Adams, 211 Ill. 2d at 69-70.

¶ 41    We cannot read the word “sidewalk” under the Act as including a condo building’s

parking lot.

¶ 42                                             B

¶ 43    Defendants insist that the Second District’s decision in Gallagher is distinguishable.

They argue that three earlier appellate decisions interpreted the word “sidewalk” under the Act

under circumstances more analogous to this case—involving private walkways leading from a

parking lot or driveway to the entrance of a residence. That, to be fair, is a reasonable description

of the property in question here. So we next consider these three cases cited by defendant and the

trial court.

¶ 44    In Yu v. Kobayashi, 281 Ill. App. 3d 489, 493 (1996), the court held that a paved area

leading from an apartment building to the parking lot, including the stoop on which plaintiff

slipped and fell, was a “sidewalk” under the Act. The complaint in that case, at times, referred to

the walkway between the parking lot and front entrance as a “sidewalk.” Id. at 491-92. The

predominant dispute between the parties was not whether the walkway, as a whole, was a

“sidewalk,” but whether the stoop—the front porch where plaintiff slipped—was part of that

same walkway. The trial court ruled that, “whether [plaintiff] fell on the stoop or the paved area

between the stoop and the parking lot, she fell on the ‘sidewalk.’ ” Id. at 493.

¶ 45    The appellate court agreed, reasoning as follows:


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       “Not only does count IV of the amended complaint itself specifically allege that the

       accident took place on an improperly plowed sidewalk, but we believe it is undeniable

       that the scene of the accident was a ‘sidewalk’ as the Act employs that term. As

       defendants argue, common sense dictates that, if part of the paved area between the stoop

       and the parking lot is the sidewalk, all of the paved strip is the sidewalk. Any distinction

       here between the stoop and the rest of the sidewalk is arbitrary. They are parts of the

       same continuous walkway. Pedestrians traverse both in quick succession to get from the

       building to the parking lot or vice-versa. Also, both are made of the same material and the

       difference in elevation is slight. Together, they form a paved path set aside primarily for

       pedestrians. Even if the path is not a ‘sidewalk’ in the traditional sense of a paved area

       that is part of a municipal street (see City of Elmhurst v. Buettgen, 394 Ill. 248, 252-53

       (1946)), it is sufficiently akin to a traditional sidewalk that to classify it otherwise would

       be unreasonable.” Yu, 281 Ill. App. 3d at 493.

¶ 46   This court next had occasion to determine the meaning of a “sidewalk abutting the

property” of a residential landowner in Kurczak v. Cornwell, 359 Ill. App. 3d 1051 (2005). The

plaintiff was injured when he slipped and fell on a paved walkway leading from the driveway to

the front porch of the defendant’s residence. Id. at 1052. The plaintiff argued that the walkway

(1) was not a “sidewalk” and (2) did not “abut the property.” Id. at 1056. This court rejected both

arguments, relying in part on the Yu decision.

¶ 47   The court noted that Webster’s Dictionary defined “sidewalk” as “ ‘a walk for foot

passengers usu[ally] at the side of a street or roadway: a foot pavement.’ ” Id. at 1057 (quoting

Webster’s Third New International Dictionary 2113 (1986)). The court reasoned that the word

“sidewalk” encompassed all of the “foot pavements” leading to and from the residence. Id. The


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court rejected the plaintiff’s contention that the word “sidewalk” as used in the Act included only

public sidewalks: “Absent a distinction drawn by the legislature that limits the term ‘sidewalk’ to

only public or municipal sidewalks, we must afford ‘sidewalk’ its plain and ordinary meaning.”

Id.

¶ 48   The court also rejected the plaintiff’s argument that the paved walkway did not “abut”

defendant’s property because it was located within, rather than at the border of, the property. Id.

at 1058. The court noted that, while section 2’s immunity provision referenced “ ‘sidewalks

abutting the property,’ ” section 1 of the Act—the statement of legislative intent—discussed

encouraging residents to clear snow and ice from the “ ‘sidewalks abutting their residences.’ ”

(Emphases in original.) Id. at 1058-59 (quoting 745 ILCS 75/1, 2 (West 2000)). The court noted

that “[a] residence is a ‘house or other fixed abode.’ ” Id. at 1059 (quoting Black’s Law

Dictionary 1310 (7th. ed. 1999)). Reading the two sections together, the court decided that

“ ‘property’ encompasses both the residence and the surrounding land.” Id. It followed that “the

Act applies to any ‘sidewalk’ that ‘abuts’ a ‘residence’ or ‘property,’ not just a sidewalk that

borders the property.” Id. Thus, the court concluded, “the paved walkway at issue [was] a

‘sidewalk abutting the property’ ” within the meaning of the Act. Id.

¶ 49   Finally, in Bremer v. Leisure Acres-Phase II Housing Corp., 363 Ill. App. 3d 581 (2006),

the plaintiff slipped and fell on ice as she was walking on a concrete walkway that was entirely

within the property lines of the apartment complex and which connected her apartment to the

defendants’ parking lot. Id. at 582. The court cited the same dictionary definition of “sidewalk”

that was cited by the court in Kurczak. Id. at 584. Citing Yu, the court reasoned:

       “The walkway in this case is a path that leads from the parking lot to the residence. It is a

       concrete walk for foot passengers. It is, in ordinary terms, a sidewalk. [Citation.] Absent


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       a clear distinction that limits the term ‘sidewalk,’ we must afford the word its plain and

       ordinary meaning.” Id.

¶ 50   The court also agreed with Kurczak that the word “abutting” did not mean that the

sidewalk had to touch only the border of the residential property. Id. at 584-85. Employing the

same analysis as in Kurczak, the court reasoned that the Act’s statement of legislative intent in

section 1, which encouraged landowners to remove snow from sidewalks “ ‘abutting their

residences,’ ” had to be harmonized with the language in section 2 that immunized snow

shoveling on “ sidewalks ‘abutting the property’ ” of residential landowners. (Emphases

omitted.) Id. (quoting 745 ILCS 75/1, 2 (West 2002)). Reading them together, section 1’s

reference to “residences” modified section 2’s reference to “property,” and thus, any walkway

that touched the border of the property, or the house itself, was a “sidewalk abutting the

property” of a residential landowner under the Act. Id.

¶ 51   These three cases, together, stand for the proposition that the Act provides immunity for

the removal of snow or ice on any private walkway on residential property that either touches the

border of the property or that touches the house on the property.

¶ 52   We cannot reconcile this line of case law with the more recent appellate decision in

Gallagher or, more importantly, with the even more recent supreme court decision in Murphy-

Hylton. We reach this conclusion for several reasons.

¶ 53   First, none of these three cases even mentioned what is probably the most important

aspect of any analysis of a statute that is in derogation of the common law—the need to interpret

it strictly, to avoid eliminating by implication a body of common-law claims. Murphy-Hylton,

2016 IL 120394, ¶ 29; Gallagher, 397 Ill. App. 3d at 1043. None of these cases cited that




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principle or mentioned the fact that the more liberally they interpreted the immunity provision,

the more common-law claims they foreclosed by judicial implication.

¶ 54   None of them applied that principle of strict construction, either. If anything, these courts

gave an expansive definition to the term “sidewalk.” The court in Yu, 281 Ill. App. 3d at 493, as

discussed, devoted most of its analysis to whether the front porch (where the plaintiff fell) was

part of the same path as the concrete walkway leading to the parking lot, presupposing that the

walkway was a “sidewalk” in doing so. It was only at the end of the discussion that the court

added, without any analysis: “Even if the path is not a ‘sidewalk’ in the traditional sense of a

paved area that is part of a municipal street (see City of Elmhurst v. Buettgen, 394 Ill. 248, 252­

53 (1946)), it is sufficiently akin to a traditional sidewalk that to classify it otherwise would be

unreasonable.” Id.

¶ 55   Suffice it to say that a narrow, strict construction of the term “sidewalk” would not

include something that is not a sidewalk, but fairly resembles one. That interpretation is more

liberal still, given that the court specifically cited a supreme court decision that defined the term

“sidewalk” (albeit in a different statute) as “part of the street which the municipal authorities

have set apart for the use of pedestrians” (Buettgen, 394 Ill. at 252)—but then proceeded to

ignore it, because doing so would be “unreasonable.” Yu, 281 Ill. App. 3d at 493.

¶ 56   The courts in Kurczak and Bremer did not strictly construe the term, either. The court in

Kurczak, 359 Ill. App. 3d at 1057, reasoned that it would construe the term “sidewalk” in the Act

to include a private walkway running from a residence to a parking area “[a]bsent a distinction

drawn by the legislature that limits the term ‘sidewalk’ to only public or municipal sidewalks.”

See also Bremer, 363 Ill. App. 3d at 584 (court would construe “sidewalk” under Act as

including private walkway “[a]bsent a clear distinction that limits the term”).


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¶ 57   In the context of a statute in derogation of the common law that requires strict

construction, that reasoning is backwards. The court’s role in that context is not to broadly

interpret a provision absent some clear textual limitation; it is to effect the least amount of

change to the common law by limiting its construction to what the statute expressly provides and

what it necessarily implies. Murphy-Hylton, 2016 IL 120394, ¶ 29; Adams, 211 Ill. 2d at 69.

¶ 58   Another quarrel with these three appellate decisions is their discussion of the word

“abutting” that modifies “sidewalk” in the Act. Recall that the Act immunizes snow-removal

efforts on “sidewalks abutting the property” of residential landowners. 745 ILCS 75/2 (West

2012). While Yu did not discuss the issue, the unsuccessful plaintiffs in Kurczak and Bremer

argued that the General Assembly must have been referring to municipal sidewalks in this

language, because they always “abut”—that is, rest along the border of—private residential

property, whereas other private walkways do not border residential property but are, in fact, part

of the residential property.

¶ 59   Those courts rejected that reasoning by examining section 2 in light of section 1 of the

Act, the statement of legislative intent, which uses different language. The General Assembly

said in section 1 that it was the public policy of the State that residential landowners “be

encouraged to clean the sidewalks abutting their residences of snow and ice.” (Emphasis added.)

745 ILCS 75/1 (West 2012). Because the word “residence” includes the physical abode

specifically, these courts reasoned that, when the legislature provided the grant of immunity in

section 2 for snow removal on sidewalks “abutting the property,” it meant to include the physical

home. Kurczak, 359 Ill. App. 3d at 1058-59; Bremer, 363 Ill. App. 3d at 584-85. Accordingly,

private walkways, though they do not “border” or “abut” the residential property, will constitute




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“sidewalks” under the Act so long as they “border” or “abut” the house. Kurczak, 359 Ill. App.

3d at 1058-59; Bremer, 363 Ill. App. 3d at 584-85.

¶ 60   We cannot agree with this reasoning, because again, it is not a strict construction of the

phrase “sidewalk abutting the property” of a residential landowner. The word “abut” means “ ‘to

join at a border or boundary; to share a common boundary with’ ” or “ ‘to border on: reach or

touch with an end.’ ” Kurczak, 359 Ill. App. 3d at 1058 (quoting Black’s Law Dictionary 10 (7th

ed. 1999), and Webster’s Third New International Dictionary 8 (1986)). Section 2, the operative

immunity statute, refers to sidewalks bordering the property. It does not refer to sidewalks

bordering the house, which is a far broader reading of the Act that permits the inclusion of all

sorts of private walkways leading from the house, not to mention front and back porches. And

under no circumstances could those private walkways and porches be considered to be

“abutting” the residential property—they are residential property.

¶ 61   Recognizing the spirit and purpose of a statute is always important in considering the

operative language of the statute. But the court goes too far if it allows a general statement of

legislative intent to materially expand the language of a specific grant of immunity in the

statute—especially if that grant of immunity is to be read strictly. See Knolls Condominium

Ass’n v. Harms, 202 Ill. 2d 450, 459 (2002) (specific statutory provision controls over general

provision on same subject). The grant of immunity in section 2, and nothing else, is the source of

relief for defendants. Had the General Assembly wished to include within its immunity

walkways that abut the house itself, it could have easily used that same language that it used

more generically in section 1. It did not.

¶ 62   These specific criticisms aside, on a more fundamental level, these three cases simply did

not accurately identify the plain meaning of the term “sidewalk” under the Act. As we explain


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below, a strict reading of the term “sidewalk” can only lead to the conclusion that the General

Assembly was referring in the Act to a municipal sidewalk, the public right-of-way reserved for

pedestrians, bordering the property of a residential landowner.

¶ 63                                              C

¶ 64   Though colloquially, one might use the word “sidewalk” to refer to a paved walkway on

private property leading to a house, the General Assembly has always referred to a “sidewalk” as

a term of art, and so have the courts interpreting that word—other than in the context of the

Snow and Ice Removal Act, as discussed above.

¶ 65   Under the Illinois Vehicle Code, for example, “sidewalk” is defined as “[t]hat portion of

a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines,

intended for use of pedestrians.” 625 ILCS 5/1-188 (West 2012). And a “street” is “[t]he entire

width between boundary lines of every way publicly maintained, when any part thereof is open

to the use of the public for purposes of vehicular travel.” 625 ILCS 5/1-201 (West 2012). In

other words, a “sidewalk” is part of the street—part of the publicly maintained right of way,

adjacent to private property, that is intended for pedestrian use.

¶ 66   That definition is consistent with a long line of supreme court decisions holding that a

sidewalk is not private property, but rather “is considered a part of the street which has been set

aside for pedestrian use.” City of Carbondale v. Brewster, 78 Ill. 2d 111, 116 (1979); see also

Lansing v. County of McLean, 69 Ill. 2d 562, 572 (1978) (“ ‘The sidewalk is simply a part of the

street which the municipal authorities have set apart for the use of pedestrians.’ ” (quoting

Buettgen, 394 Ill. at 252)); People ex rel. Herman Armanetti, Inc. v. City of Chicago, 415 Ill.

165, 167 (1953) (“ ‘Sidewalks’ have been held to be public ways within the meaning of the word

‘streets.’ ”); Topliff v. City of Chicago, 196 Ill. 215, 217-18 (1902) (noting that city has “ample


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power to designate portions of the streets of the city to be used by horsemen and vehicles and 


other portions to be used by pedestrians,” the latter of which “are not improperly known as the


sidewalks”).


¶ 67   As an appellate decision from 1965 put it:


       “[T]he basic purpose of having streets and sidewalks within a municipality is to afford a

       public way for pedestrian and vehicular traffic. The public is rightfully entitled to the use

       of such thoroughfares free of all obstructions and impediments which tend to delay or

       obstruct traffic. [Citation.] An abutting property owner, for his convenience, has a right to

       make proper and reasonable use of the sidewalk and street, but only to the extent that

       such use is not inconsistent with the paramount right of the public.” Sabath v. City of

       Chicago, 56 Ill. App. 2d 307, 319 (1965).

¶ 68   A section of the Local Governmental and Governmental Employees Tort Immunity Act

provides immunity “for an injury caused by the effect of weather conditions as such on the use of

streets, highways, alleys, sidewalks or other public ways, or places.” (Emphasis added.) 745

ILCS 10/3-105(a) (West 2012). As its title implies, that statute does not protect anything but

public entities, for injuries occurring on government-controlled—that is, public—property. See

id. § 3-101 (defining “public property”); Steinbach v. CSX Transportation, Inc., 393 Ill. App. 3d

490, 517 (2009). This law has been on the books since 1965, following the abolition of sovereign

immunity, “to protect local public entities *** from liability arising from the operation of

government.” DeSmet v. County of Rock Island, 219 Ill. 2d 497, 505 (2006).

¶ 69   In a similar vein, nearly 90 years ago in Graham v. City of Chicago, 346 Ill. 638, 641

(1931), the supreme court considered the question of “[w]hat, if any, duty devolves upon a city

to remove ice from its sidewalks.” under the common law. The court answered it:


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       “[T]here is one rule which is almost universal. That is, a city is not liable for injuries

       resulting from the general slipperiness of its streets and sidewalks due to the presence of

       ice and snow which have accumulated as a result of natural causes. [Citations.] A

       municipality is bound only to use reasonable care to keep its sidewalks reasonably safe

       for the amount and kind of travel which may fairly be expected upon them.” (Emphases

       added.) Id.

¶ 70   The tort-immunity statute and Graham decision are unquestionably premised on the

nature of a “sidewalk” as a public right-of-way controlled by the municipality.

¶ 71   Similarly, the Revised Cities and Villages Act, for decades, has permitted cities and

villages to regulate “sidewalks.” See Ill. Rev. Stat. 1945, ch. 24, ¶ 23-20. A 1924 Elmhurst

ordinance, promulgated by authority of that law, prohibited vehicles from driving over

“sidewalks.” See Buettgen, 394 Ill. at 250. The defendant, convicted of driving his car over the

sidewalk onto his driveway, argued that the sidewalk, at least insofar as it intersected his

driveway, was part of his private driveway—it was private, not public property—and thus the

state law did not vest the municipality with the authority to regulate that private property.

¶ 72   The supreme court found it “absurd” to interpret “sidewalk” to include private property.

Id. at 252. Rather, the court wrote, “[t]he sidewalk is simply a part of the street which the

municipal authorities have set apart for the use of pedestrians.” Id. The court elaborated:

       “There can be no question but that the title to all streets and sidewalks is vested in the city

       in trust for the public, and under the above provisions of the Cities and Villages Act they

       are under the control, supervision and dominion of the corporate authorities of the city for

       the purpose of preserving them and promoting their intended use. The city is charged




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       with the duty of keeping its sidewalks, as well as its streets, in a reasonably safe condition

       for the use of the public.” Id.

¶ 73   But most notably of all, the Illinois Municipal Code grants each municipality the right to

“regulate the use of sidewalks” and to “require the owner or occupant of any premises to keep

the sidewalks abutting the premises free from snow and other obstructions.” (Emphasis added.)

65 ILCS 5/11-80-13 (West 2012). This provision had been codified in its present form,

unchanged, since 1963, long before the Snow and Ice Removal Act’s enactment in 1979.

¶ 74   The supreme court upheld a municipal ordinance adopted pursuant to this section of the

Municipal Code in Brewster, 78 Ill. 2d at 116. The court held that the state, and by delegation a

city, possessed the police power to require residents to clear snow from the “sidewalks” in front

of their homes, even though the “sidewalk” was public property, not owned by the private

landowner. Id. In so holding, the court overruled its 1884 decision in City of Chicago v. O’Brien,

111 Ill. 532, 537 (1884), which held that a private landowner could not be required to clear the

snow from the “sidewalk” fronting the landowner’s private property, as doing so would impose a

“purely public burden” on a private landowner without just compensation or some special

taxation to compensate the private landowner for cleaning that public right-of-way.

¶ 75   The court in Brewster, noting a general change over the previous century in the

understanding of the government’s police power, disagreed with O’Brien’s holding, but certainly

not its premise—that sidewalks are public property, controlled by municipalities. Indeed, the

court in Brewster noted a long line of cases holding “that the sidewalk is considered a part of the

street which has been set aside for pedestrian use.” Brewster, 78 Ill. 2d at 116.

¶ 76   Thus, since at least 1884, our supreme court has made it abundantly clear that a

“sidewalk” is public property and has interpreted that word as a statutory term accordingly.


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¶ 77   It was against this backdrop, following decades if not centuries of statutory law and

supreme court case law giving one and only meaning to the word “sidewalk,” that the General

Assembly enacted the Snow and Ice Removal Act in 1979. We simply cannot accept that when

the General Assembly enacted the Act, it intended the word “sidewalk” to mean something

materially different than what it had meant in every other statute and inconsistent with a slew of

supreme court decisions interpreting that word. And to put it mildly, any attempt to divine some

unprecedented distinction would not be an exercise in narrowly and strictly construing the Act.

¶ 78   We recognize that “[c]are must be taken when importing the definition of a term from

one statute to another, since ‘the context in which a term is used obviously bears upon its

intended meaning.’ ” Cohen v. Chicago Park District, 2017 IL 121800, ¶ 22 (quoting People

ex rel. Illinois Department of Labor v. E.R.H. Enterprises, Inc., 2013 IL 115106, ¶ 29). But we

do not think the term “sidewalk” is being used in a different context under the Act than in the

other statutes we have cited—certainly not in a different context than the provision in the

Municipal Code that allows municipalities to “require the owner or occupant of any premises to

keep the sidewalks abutting the premises free from snow and other obstructions.” 65 ILCS 5/11­

80-13 (West 2012). If “sidewalks abutting the premises” (id.) means a public right-of-way under

the Municipal Code, we cannot fathom that the General Assembly meant “sidewalks abutting the

property” to mean something different under the Snow and Ice Removal Act. 745 ILCS 75/2

(West 2012).

¶ 79   Our interpretation fits comfortably into the Act’s language, for a municipal sidewalk

always “abut[s] the property” of the residential landowner. We need not import a word from the

legislative-intent section of the Act to make the word “property” include the “residence” or

“house” to make sense of our interpretation. It has the added benefit of a bright-line rule:


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residential landowners have immunity if they shovel the part of the municipal sidewalk that

borders their property. Courts would not be endlessly debating what kinds of shoveled paths are

“akin” to a sidewalk, or whether the porch is as much of the sidewalk as the walkway or

driveway.

¶ 80   We respectfully disagree with the decisions in Yu, Kurczak, and Bremer. We do not read

the phrase “sidewalks abutting the property” of a residential landowner as including walkways

on private property. We read the phrase as limited to the municipal right-of-way, the part of the

public street reserved for pedestrian use, that abuts private residential property.

¶ 81   Thus, regardless of whether plaintiff’s accident occurred in a “parking area,” a walkway

or pathway on private property, or a hybrid of both, it did not occur on a “sidewalk” within the

meaning of the Snow and Ice Removal Act. We find the Act inapplicable to this case. We

reverse the grant of summary judgment in favor of defendants and remand for further

proceedings.

¶ 82   Reversed and remanded.




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