             NOTICE
                                      2016 IL App (5th) 150170
 Opinion filed March 21, 2016.
 Modified    upon   denial   of            NO. 5-15-0170
 rehearing June 13, 2016.

                                              IN THE

                                  APPELLATE COURT OF ILLINOIS

                            FIFTH DISTRICT
________________________________________________________________________

TERRY REED and CAROLYN REED,                      )    Appeal from the
                                                  )    Circuit Court of
      Plaintiffs-Appellants,                      )    Shelby County.
                                                  )
v.                                                )    No. 11-L-19
                                                  )
COUNTRY PLACE APARTMENTS-MOWEAQUA I, L.P.; )
COUNTRY PLACE APARTMENTS-MOWEAQUA II, L.P.; )
PROFESSIONAL PROPERTY MANAGEMENT, LLC;            )
COUNTRY PLACE GP, LLC, a/k/a Country Place        )
Apartments, GP, LLC, d/b/a Moweaqua Country Place )
Apartments I and II; and UNKNOWN OWNERS,          )
                                                  )
      Defendants-Appellees/Third-Party Plaintiffs )
      and Separate Appellants                     )
                                                  )    Honorable
(Gary Powell, d/b/a Powell Lawn Care, Third-Party )    Allen F. Bennett,
Defendant and Separate Appellee).                 )    Judge, presiding.
________________________________________________________________________

      JUSTICE MOORE delivered the judgment of the court, with opinion.
      Presiding Justice Schwarm and Justice Welch concurred in the judgment and
opinion.

                                          OPINION

¶1          The plaintiffs, Terry Reed and Carolyn Reed, appeal the order of the circuit court

of Shelby County that granted the motion for summary judgment filed by the defendants:

Country Place Apartments-Moweaqua I, L.P.; Country Place Apartments-Moweaqua II,

                                                1
L.P., Professional Property Management, LLC; Country Place GP, LLC, also known as

Country Place Apartments, GP, LLC, doing business as Moweaqua Country Place

Apartments I and II; and unknown owners. The defendants, as third-party plaintiffs and

separate appellants, appeal the portion of that order that granted the motion for summary

judgment filed by the third-party defendant, Gary Powell, 1 doing business as Powell

Lawn Care (Powell). For the following reasons, we affirm in part, reverse in part, and

remand for further proceedings.

¶2                                       FACTS

¶3     In the plaintiffs' third amended complaint (the complaint), which is the complaint

upon which summary judgment was granted, the plaintiffs allege that Terry Reed was

injured when he slipped and fell on ice on a ramp outside of an apartment building owned

and/or managed by the defendants, said ramp leading from the apartment building to its

parking lot.      The complaint alleges severe personal injuries to Terry and loss of

consortium with regard to Carolyn. According to the complaint, other pleadings, and

information adduced in discovery, the plaintiffs and other family members arrived at the

apartment building between 5:30 p.m. and 6 p.m. on December 24, 2010, to visit a

relative who was a resident of the building. At the time they entered the apartment


       1
           In his deposition, Mr. Powell indicated that his first name is "Greg," not "Gary."

To the extent he has been misidentified in the pleadings, there is no indication in the

record on appeal that he has taken steps in the trial court to correct that misidentification,

although the trial judge did note the name discrepancy in the order presently on appeal.

                                               2
building, it had been sleeting and raining for approximately two hours. While they were

inside the apartment building, the sleet and rain turned to snow. The family members

alleged that on the night in question, the gutter that hung over the passageway that led to

the ramp and the parking lot was packed with snow and was, as one family member put

it, "dripping a constant drip" onto the ramp. The plaintiffs and other family members left

the building, and Terry fell, between 10:30 p.m. and 10:45 p.m. Carolyn testified that at

the time Terry fell, the surface was completely slick. Terry testified that when he arrived

at the apartment building, he had no trouble getting up the sidewalk but that it was

slippery, and the traction was like a sheet of ice, when he left.

¶4     The complaint alleges that the ice upon which Terry slipped was underneath the

freshly fallen snow, and that, "at all times relevant, there was a leak in the down spout

and guttering system over the passage way exiting to the ramp in question, which allowed

substantial quantities of water to drip onto the sidewalk and find its way down the ramp,

under the existing snowfall." The complaint also alleges that the condition existed for a

sufficient period of time for the defendants to have knowledge of it and to correct it. The

complaint alleges that the defendants breached, in multiple ways, their duty to prevent

unnatural accumulations of ice on the property, resulting in the personal injury and loss

of consortium damages alleged.

¶5     In response to an earlier complaint, the plaintiffs' second amended complaint, the

defendants had filed a motion for summary judgment, contending that because the

location of the apartment building was residential, and because the second amended

complaint alleged, inter alia, injuries and damages resulting from negligent snow and ice
                                              3
removal efforts by the defendants, the defendants were immune from liability under the

provisions of the Illinois Snow and Ice Removal Act (the Act) (745 ILCS 75/0.01 et seq.

(West 2010)), notwithstanding the allegations of negligence with regard to a purportedly

leaking downspout and guttering system. The motion also alleged other grounds for

summary judgment. Powell, who had been added to the case as a third-party defendant

by the defendants following discovery, and who had provided gutter cleaning and snow

and ice removal services at the apartment building (including, he testified in his

deposition, snow and ice removal services on the date Terry fell), had previously filed a

motion for summary judgment in which Powell made similar contentions with regard to

the applicability of the Act and in which Powell contended he owed no duty to the

plaintiffs.

¶6     In response to the motions for summary judgment, the plaintiffs, inter alia, asked

the court for leave to file the complaint, which removed all allegations of negligence

related to snow and ice removal efforts, but maintained the other allegations, as described

above. Accordingly, the posturing of the plaintiffs' theory of the case at the time the

court ruled on the motion for summary judgment was, essentially, that the snow and ice

removal efforts undertaken hours before Terry's fall were irrelevant, because it was a

premises defect, in conjunction with the rain, sleet, and snow that fell shortly before

Terry's fall, that led to an unnatural accumulation of ice that in turn caused the fall and

the accompanying injuries. In a five-page written order entered on April 7, 2015, the trial

court granted the plaintiffs' motion for leave to file the complaint, ruling that the

complaint did not "change or alter the grounds for summary judgment which are set forth
                                            4
in the respective motions" therefor, and explicitly stating that the court would consider

the motions in the context of the allegations of the complaint, rather than those contained

in the second amended complaint. The court ruled that because the plaintiffs claimed that

Terry "fell as a consequence of an accumulation of snow and/or ice on December 24,

2010[,] after attempts to remove snow and ice" (emphasis in original), the condition

existing at the time Terry fell "was that which was created or contributed to by those

snow and ice removal efforts." Therefore, the court reasoned, the Act provided immunity

for the defendants and for Powell, because the complaint "ultimately seeks recovery from

the [defendants] for acts or omissions on their part which were caused by acts or

omissions resulting in the snow and icy conditions upon which" Terry fell. Accordingly,

the court granted both motions for summary judgment. This timely appeal followed.

¶7                                   ANALYSIS

¶8     A motion for summary judgment should be granted if the pleadings, depositions,

and admissions on file, together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a matter

of law. Murphy-Hylton v. Lieberman Management Services, Inc., 2015 IL App (1st)

142804, ¶ 24 (citing 735 ILCS 5/2-1005(c) (West 2010)). Although summary judgment

can play an important role in promoting the prompt administration of justice, it is

nevertheless a drastic measure and should be granted only where the moving party's right

is so clear as to be free from doubt. Id. We review de novo a trial court order granting

summary judgment. Id. Moreover, we review de novo the interpretation of a statute, as

that is a question of law. Id.
                                            5
¶9     On appeal, the plaintiffs contend the trial court erred when it granted the

defendants' motion for summary judgment, because once the plaintiffs filed the

complaint, which removed all the allegations that had been contained in the second

amended complaint of negligence related to snow and ice removal efforts, the Act was no

longer applicable to this case, and the plaintiffs should have been allowed to move

forward with their common-law claims that the defendants breached, in multiple ways,

their duty to prevent unnatural accumulations of ice on the property, as a result of the

alleged negligence of the defendants with regard to the purportedly leaking downspout

and guttering system. In support of this contention, the plaintiffs point out that because

the Act was passed in derogation of the common law, it must be strictly construed;

therefore, according to the plaintiffs, although the plain language of the Act immunizes

actions on residential properties that in the past would have supported a common-law

action alleging negligent snow and ice removal efforts, the Act was never intended to,

and in fact does not, immunize actions on residential properties related to allegations of

negligence with regard to premises defects that, as alleged in the case at bar, caused

unnatural accumulations of ice to form, said ice then causing injury. According to the

plaintiffs, the latter common-law actions survive the General Assembly's passage of the

Act.

¶ 10   The defendants' response to the plaintiffs' argument on appeal is twofold: (1) the

summary judgment in favor of the defendants should be upheld because, even though the

trial court did not base its order upon these grounds, the record demonstrates that the

plaintiffs did not establish facts from which a duty owed by the defendants to the
                                          6
plaintiffs could be inferred; and (2) the Act immunizes the defendants, because to the

extent Terry was injured after slipping on an unnatural, rather than natural, accumulation

of ice, the removal of all allegations of negligence related to snow and ice removal efforts

does not change the fact that Terry's injury occurred after snow and ice removal efforts

from residential property, that the plaintiffs admitted "were not willful and wanton," had

been made in the area by the defendants, said efforts fully immunizing the defendants,

notwithstanding the allegations of negligence with regard to a purportedly leaking

downspout and guttering system. In support of the latter contention, the defendants posit

in their brief on appeal that the application of the Act, in the context of a motion for

summary judgment, must be based on the underlying facts of the event in question,

"regardless of the content of [the plaintiffs'] allegations." (Emphasis in original.)

¶ 11   With regard to the issue of duty raised by the defendants, the crux of the

defendants' position is that in the case at bar, to survive summary judgment under the

standards set forth in section 2-1005 of the Code of Civil Procedure (735 ILCS 5/2-1005

(West 2010)), the plaintiffs were required to "either show a direct link between the

dripping gutter and the ice that caused [Terry] to slip, or provide circumstantial evidence

through an expert" that would demonstrate the same. Without such, according to the

defendants, there could be no "finding of an unnatural or aggravated condition," and thus

no finding of a duty on the part of the defendants to the plaintiffs, because under Illinois

law there is no duty to remove natural accumulations of snow or ice. The defendants

posit that this court must answer the question of duty before proceeding to the question of

immunity under the Act.
                                              7
¶ 12   The plaintiffs respond to this argument by contending that the duty in question in

this case relates directly to the allegations, made in the complaint, of negligence with

regard to premises defects, a common-law duty that supports a common-law claim that is

wholly independent of the Act. The plaintiffs contend the Act does nothing to negate the

longstanding common-law rule that "a business owes the public the duty of exercising

ordinary care in maintaining the premises in a reasonably safe condition." The plaintiffs

maintain that this duty exists as a matter of law, and that it is a question of fact, to be left

to a jury, whether the allegations in the complaint in this case, supported by

circumstantial evidence (including that found in the depositions that are already part of

the record on appeal), entitle the plaintiffs to recovery. Moreover, the plaintiffs contend

that because the trial court did not base its order on anything related to duty, this court

should not affirm the trial court's decision on those alternative grounds. In support of the

latter proposition, the plaintiffs cite Murphy-Hylton v. Lieberman Management Services,

Inc., 2015 IL App (1st) 142804, ¶ 45, wherein our colleagues in the First District declined

to affirm the trial court's summary judgment ruling on the basis of the alternative grounds

proposed by the appellees because the court concluded that there was "nothing in the

decision of the trial court which evidences a ruling on defendants' alternative grounds,"

and therefore the court believed it should confine its "decision to the basis of the motion

actually considered and ruled upon by the trial court."

¶ 13   For reasons discussed in much more detail below, we agree with the plaintiffs that

the duty in the case at bar relates directly to the allegations, made in the complaint, of

negligence with regard to premises defects, a common-law duty that supports a common-
                                            8
law claim that is wholly independent of the Act. We also agree that, in light of that

clarification with regard to what duty is involved herein, the plaintiffs did in fact establish

facts from which a duty owed by the defendants to the plaintiffs could be inferred, and, as

discussed in more detail below, evidence that supports their theory of the case.

Accordingly, we reject the alternative grounds upon which the defendants request that we

affirm the summary judgment in their favor.

¶ 14   We turn, therefore, to the issue of immunity under the Act. With regard to the

applicability of the Act, the parties agree that three recent Illinois decisions potentially

will assist this court in our analysis of the issues related to the Act in the case at bar:

Murphy-Hylton v. Lieberman Management Services, Inc., 2015 IL App (1st) 142804;

Ryan v. Glen Ellyn Raintree Condominium Ass'n, 2014 IL App (2d) 130682; and Greene

v. Wood River Trust, 2013 IL App (4th) 130036. The first, and most recent, of these

cases is Murphy-Hylton. Therein, our colleagues in the First District framed the issue

before them as "whether the immunity provided by the Act only applies to those who

create a danger by negligent efforts to remove natural accumulations of ice and snow or

instead applies to anyone whose defective property, whether because of factors such as

negligent landscaping design or maintenance, creates an unnatural accumulation of ice or

snow which causes injury." 2015 IL App (1st) 142804, ¶ 1.

¶ 15   In Murphy-Hylton, the plaintiff was injured when, as she walked upon a sidewalk

outside of her apartment building, "she slipped on a patch of ice about the size of an 8½

by 11 inch piece of paper." Id. ¶ 4. She testified that she knew it was ice that she had

slipped upon because as she lay on the ground waiting for paramedics to arrive, she could
                                           9
feel ice on the sidewalk. Id. She also testified that: (1) the sidewalk was clear and did

not appear to be wet; (2) there was no salt or other material present; and (3) there was no

precipitation on the day she fell, the last snowfall she remembered being "a week or so"

prior to that day. Id. Other evidence before the court indicated that the last time snow

removal efforts had been made at the location was 11 days prior to the plaintiff's fall. Id.

¶ 9.

¶ 16   The plaintiff's theory of the case in Murphy-Hylton was that on each side of the

sidewalk in question, there were areas " 'where water would settle, and it was from the

drainage from either [of] the downspout things, and it would kind of accumulate there.' "

Id. ¶ 5. She posited that at times the water would "collect and stay on the sidewalk"

rather than continuing to drain onto the parking lot. Id. Because there was no ice

anywhere else in the area, it was her belief that the ice she had slipped upon was the

result of previous draining and freezing, although she conceded there were other possible

explanations for the ice. Id. Other lay witnesses made similar observations about the

sidewalk and the alleged drainage/freezing issues. Id. ¶¶ 6-7. Accordingly, the plaintiff's

cause of action was based upon negligent maintenance of the property by the defendants,

and contained no allegations regarding snow or ice removal efforts. Id. ¶ 1.

¶ 17   The defendants in Murphy-Hylton moved for summary judgment, contending,

inter alia, that the Act applied and provided them with immunity. Id. ¶ 12. Ultimately,

the trial judge agreed with the defendants, noting that there had been "recent" snow and

ice removal efforts on the sidewalk in question, and that the plaintiff could not identify

the source of the ice upon which she fell. Id. ¶ 18. The judge stated that in his opinion,
                                           10
" 'the issue essentially is where did the unnatural accumulation come from and what was

it related to.' " Id. The judge ruled that because the Act does not by its language limit

itself only to negligent snow and ice removal, rather than an unnatural accumulation from

a building defect, or other cause, the Act could not be read so narrowly as to include

immunity only when negligent snow or ice removal was at issue. Id. ¶ 21.

¶ 18   On appeal, the Murphy-Hylton plaintiff asserted, as she had in the trial court, "that

the ice that caused her fall was the result of negligent maintenance or construction of the

premises at issue," and that therefore there could be no immunity under the Act. Id. ¶ 24.

The Murphy-Hylton court began its analysis by providing an overview of the text of the

Act itself, noting that section 1 of the Act states that because it is the public policy of the

state of Illinois that those responsible for residential units should " 'be encouraged to

clean the sidewalks abutting their residences of snow and ice,' " it would be " '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,' " with the exception of acts that were wrongful, willful,

or wanton. Id. ¶ 25 (quoting 745 ILCS 75/1 (West 2010)). The court noted that section 2

of the Act provides that a properly authorized individual " 'who removes or attempts to

remove snow or ice from sidewalks abutting [a residential] 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.' " Id. (quoting 745 ILCS 75/2 (West 2010)).

¶ 19   Before setting out to interpret the language of the Act and its scope, the Murphy-

Hylton court set forth some historical context for the Act, noting that at common law two
                                            11
distinct duties to prevent unnatural accumulations of snow and ice existed: (1) the duty to

prevent such unnatural accumulations that are " 'the direct result of the owner's clearing

of the ice and snow,' " and (2) the duty to prevent such unnatural accumulations that are

" 'caused by design deficiencies that promote unnatural accumulations of ice and snow.' "

Id. ¶ 26 (quoting Webb v. Morgan, 176 Ill. App. 3d 378, 382-83 (1988)). Because the

Act was passed in derogation of the common law, the Murphy-Hylton court concluded

that the Act must be interpreted narrowly, as evidenced by the general rule of law that

when the General Assembly intends to abrogate the common law, that intent must be

clearly and plainly expressed, and a reviewing court may not presume such an intent from

language that is ambiguous. Id. ¶ 27.

¶ 20   The Murphy-Hylton court then noted that to reach his decision, the trial judge had

considered both Ryan v. Glen Ellyn Raintree Condominium Ass'n, 2014 IL App (2d)

130682, and Greene v. Wood River Trust, 2013 IL App (4th) 130036. Id. ¶ 28. The

Murphy-Hylton court noted that in Greene, the plaintiff, who slipped and fell near the icy

entrance to her residence, alleged many theories of negligence, including those related to

an allegedly defective or improperly maintained roof, gutters, and downspout, but did not

allege negligent snow or ice removal efforts. Id. ¶ 29. The Murphy-Hylton court also

noted that the Greene court ultimately held that " 'the plain language of the Act does not

provide immunity for injuries if the unnatural accumulation of ice was caused by

defective construction or improper or insufficient maintenance of the premises, and not

by snow and ice removal efforts.' " Id. ¶ 30 (quoting Greene, 2013 IL App (4th) 130036,

¶ 23). In so doing, the Greene court recognized that to rule otherwise would be to read
                                          12
the Act to abrogate not only the common-law duty to prevent unnatural accumulations

that are the direct result of the owner's clearing of the ice and snow, but also to abrogate

the common-law duty to prevent such unnatural accumulations that are caused by design

deficiencies that promote unnatural accumulations of ice and snow. Id. ¶ 30. If the court

read the Act so broadly, it would be both "overturning a common law remedy, which is

not favorable," and "repealing a common law remedy by implication, which is not

favored" (internal quotation marks omitted). Id. ¶¶ 30-31.

¶ 21   The Murphy-Hylton court then turned to Ryan v. Glen Ellyn Raintree

Condominium Ass'n, 2014 IL App (2d) 130682, in which the plaintiff had alleged both:

(1) a failure to correct a design flaw, in an awning, that allowed water to drip and freeze,

causing the plaintiff to slip and be injured on the resulting patch of ice; and (2) ineffective

snow and ice removal efforts with regard to the patch of ice upon which the plaintiff

slipped. Id. ¶ 32. It noted that the Ryan court employed a theory of " 'immediate

negligence' " in which the Ryan court noted that when both a premises defect and

negligent snow and ice removal are alleged, the negligent snow and ice removal will

always be the immediate cause of the injury in question, because " '[a]fter 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.' " Id. ¶ 33 (quoting Ryan, 2014 IL App (2d) 130682, ¶ 12). The Ryan court

concluded that its ruling was consistent with the clear and unambiguous intent of the

General Assembly, noting that because in section 2 of the Act, the General Assembly

referred to acts or omissions in snow removal efforts, a property owner's failure to clear
                                          13
ice formed by water that dripped from a defective awning would be an example of an

omission for which immunity existed under the Act. Id. ¶¶ 34-35.

¶ 22   The Murphy-Hylton court noted that the trial judge below had relied upon Ryan,

and had stated that the plaintiff's narrow reading of the Act was contrary to the wide

breadth of immunity the General Assembly intended to create with the Act. Id. ¶ 36. The

Murphy-Hylton court disagreed, holding that "the Act does not apply to cases where the

plaintiff's complaint is silent as to negligent snow removal efforts but rather is grounded

in allegations that defendants negligently maintained or constructed their premises." Id.

¶ 39. Accordingly, the Murphy-Hylton court found no immunity "for the simple reason

that plaintiff's complaint does not contain any allegations of negligence relating to snow

or ice removal efforts." Id. The Murphy-Hylton court specifically adopted the Greene

court's interpretation of the Act, finding it "to be convincing and well-reasoned." Id.

¶ 41. The Murphy-Hylton court emphasized that section 1 of the Act provides "a clear,

concise statement of the conduct, i.e., the removal of ice and snow, that the Act intends to

promote," and that the Act as a whole "requires that the snow or ice that causes a

plaintiff's injuries must be the result of the acts or omissions in defendants' actual snow

removal efforts," rather than the result of an underlying premises defect. Id.

¶ 23   The Murphy-Hylton court took issue with Ryan for several reasons, including

because the theory of "immediate negligence" has no basis in previous Illinois decisions

and appeared to the Murphy-Hylton court to be overly broad, considering the fact that the

Act's plain and unambiguous language "makes no mention of protecting any type of

negligence outside of the ordinary negligence that results in an unnatural accumulation
                                          14
after snow removal efforts." Id. ¶ 42. To conclude otherwise would be to assume that

the General Assembly "intended to protect property owners who negligently maintain,

construct, or design their premises" and would require the court "to read into the Act

language that is not expressly stated and that we are prohibited from doing when a

statute, such as the Act, was established in derogation of the common law." Id.

¶ 24   With regard to the application of these three cases to the facts presented to us in

the case at bar, the defendants posit that the cases support their position. The defendants

contend that in Greene, not only were there no allegations in the pleadings filed by the

plaintiff regarding negligent snow and ice removal efforts, but there were also no

underlying facts in Greene with regard to snow removal. Accordingly, the defendants

contend, Greene is a much different case than is the case at bar, where the underlying

facts demonstrate that snow and ice removal efforts were undertaken on December 24,

2010, prior to Terry's fall. Moreover, the defendants encourage this court to adopt the

"immediate negligence" theory put forward in Ryan, and to conclude, pursuant thereto,

that if any human negligence was involved in this case, it was the immediate negligence

of the December 24, 2010, snow and ice removal efforts of Powell and/or other agents of

the defendants, which are immunized under the Act, rather than the alleged premises

defect. With regard to Murphy-Hylton, the defendants contend it is both "factually and

procedurally inapt," as it was decided on a complaint which contained no allegations of

snow and ice removal efforts and a factual situation in which it had been "more than a

week" since the last snowfall. The defendants contend that it is simply not plausible, in

the case at bar, to contend that the ice upon which Terry slipped was the result of a
                                          15
premises defect rather than the "pervasive" rain, sleet, and snow that fell shortly before

Terry's fall, because it is physically impossible to determine which source produced the

ice, and therefore whether it was a natural accumulation or an unnatural accumulation.

Although not put forward explicitly, it would appear that an alternative argument the

defendants attempt to advance is that even if this court were to determine that the Act

does not abrogate a common-law claim for a premises defect, under the facts of this case,

such a claim cannot survive the defendants' motion for summary judgment.

¶ 25   We begin by noting that we agree with the plaintiffs that the reasoning put forward

in both Murphy-Hylton and Greene supports the conclusion that the plain and

unambiguous language of the Act evidences the intent of the General Assembly to use the

Act to abrogate the common-law duty to prevent unnatural accumulations of ice and

snow that are the direct result of the owner's clearing of the ice and snow, and that,

simultaneously, the plain and unambiguous language of the Act provides no basis to

conclude that the General Assembly also intended to abrogate the common-law duty to

prevent such unnatural accumulations that are caused by design deficiencies that promote

unnatural accumulations of ice and snow. Because causes of action related to the latter

duty survived the General Assembly's passage of the Act, the plaintiffs in the case at bar

are correct in their assertion that the trial judge erred when he granted summary judgment

to the defendants under a broad reading of the Act. In the complaint, the plaintiffs had

removed all allegations related to negligent snow and ice removal, and expressly wished

to move forward only on their allegations of negligent maintenance of the gutter system.


                                           16
¶ 26   With regard to the defendants' alternative argument that even if, as we have

concluded, the Act does not abrogate the common-law claim for a premises defect, under

the facts of this case, such a claim cannot survive the defendants' motion for summary

judgment, we agree with the plaintiffs that this is a jury question, because genuine issues

of material fact exist with regard to this claim, particularly as to whether the

accumulation of ice was natural or unnatural. We do not conclude, as the defendants

appear to urge us to conclude, that the plaintiffs' theory of the case as postured in the

complaint (which, as described above, is essentially that the snow and ice removal efforts

undertaken hours before Terry's fall were irrelevant, because it was a premises defect, in

conjunction with the "pervasive" rain, sleet, and snow that fell shortly before Terry's fall,

that led to an unnatural accumulation of ice that in turn caused the fall and the

accompanying injuries), and as supported by the evidence adduced so far (including

testimony that water was dripping steadily from the gutter to the ramp, which contradicts

the report prepared by the defendants' retained expert), is so improbable that no

reasonable jury could find for the plaintiffs.

¶ 27   In their separate appeal, the defendants state that they filed that appeal "[o]ut of an

abundance of caution," because they believe the manner in which the trial court

proceeded in granting both motions for summary judgment created "two overlapping and

potentially inconsistent judgment orders." The defendants contend the trial court erred

when it granted Powell's motion for summary judgment, because if this court reverses the

summary judgment granted in favor of the defendants, questions of fact will remain

regarding Powell's role in the cleaning of the gutter system and his attempted removal of
                                            17
the snow and ice on the date in question. Powell responds that this court should affirm

the granting of his motion for summary judgment because: (1) he is immunized by the

Act, as per the allegations in both the complaint and the third-party complaint; and (2) in

the alternative, even if the Act does not apply in this case, because Powell claims that

Powell had no contractual obligation to maintain the gutters in question, and because the

defendants have not refuted that claim, the defendants have not demonstrated that Powell

owed a duty to them, or a duty to the plaintiffs. We agree with the defendants. Because

the Act bars claims against the defendants for negligent snow and ice removal, so too

does the Act bar such claims by the defendants against Powell. However, because the

plaintiffs may move forward against the defendants with the plaintiffs' common-law

claims related to a premises defect, so too may the defendants move forward with their

third-party complaint allegations that Powell breached his contractual duty to the

defendants.   Nevertheless, the defendants are limited to their allegation that Powell

negligently maintained the gutters in question when he cleaned them on November 30,

2010. It is clear from Powell's unrebutted testimony that other than his contractual

obligation to clean the gutters on that date, he had no other obligation to maintain or

repair the gutters in question. Of course, on remand, Powell may persist in his defense

against that allegation.

¶ 28                             CONCLUSION

¶ 29   For the foregoing reasons, we reverse the portion of the circuit court of Shelby

County's order that granted summary judgment to the defendants on the plaintiffs'

common-law premises defect claims. We affirm the portion of the circuit court's order
                                      18
that granted summary judgment to Powell with regard to all allegations in the third-party

complaint except that we reverse that portion of the order only with regard to the

allegation that Powell negligently maintained the gutters in question, which as explained

above, is limited on remand to Powell's cleaning of the gutters on November 30, 2010.

We remand for further proceedings not inconsistent with this opinion.



¶ 30   Affirmed in part and reversed in part; cause remanded.




                                           19
                                        2016 IL App (5th) 150170

                                             NO. 5-15-0170

                                                    IN THE

                                    APPELLATE COURT OF ILLINOIS

                                           FIFTH DISTRICT
_____________________________________________________________________________________________

TERRY REED and CAROLYN REED,                              )      Appeal from the
                                                          )      Circuit Court of
        Plaintiffs-Appellants,                            )      Shelby County.
                                                          )
v.                                                        )      No. 11-L-19
                                                          )
COUNTRY PLACE APARTMENTS-MOWEAQUA I, L.P.;                )
COUNTRY PLACE APARTMENTS-MOWEAQUA II, L.P.;               )
PROFESSIONAL PROPERTY MANAGEMENT, LLC;                    )
COUNTRY PLACE GP, LLC, a/k/a Country Place                )
Apartments, GP, LLC, d/b/a Moweaqua Country Place         )
Apartments I and II; and UNKNOWN OWNERS,                  )
                                                          )
        Defendants-Appellees/Third-Party Plaintiffs       )
        and Separate Appellants                           )
                                                          )      Honorable
(Gary Powell, d/b/a Powell Lawn Care, Third-Party         )      Allen F. Bennett,
Defendant and Separate Appellee).                         )      Judge, presiding.
_____________________________________________________________________________________________

Opinion Filed:                      March 21, 2016
Modified upon denial of rehearing:  June 13, 2016
_____________________________________________________________________________________________

Justices:            Honorable James R. Moore, J.

                      Honorable S. Gene Schwarm, P.J., and
                      Honorable Thomas M. Welch, J.,
                      Concur
_____________________________________________________________________________________________

Attorney              William E. Hourigan, 1632 North Union Street, Decatur, IL 62526
for                   (attorney for Terry and Carolyn Reed)
Appellants
_____________________________________________________________________________________________

Attorneys            Jennifer L. Wolfe, David B. Mueller, Caroline J. Cassidy, Cassidy &
for                  Mueller, P.C., 416 Main Street, Suite 323, Peoria, IL 61602
Appellees            (attorneys for Professional Property Management, LLC, et al.);
                     Stephen R. Kaufmann, Michael P. Murphy, HeplerBroom, LLC,
                      4340 Acer Grove Drive, Suite A, Springfield, IL 62711 (attorneys
                      for Greg Powell, d/b/a Powell Lawn Care)
_____________________________________________________________________________________________
