                                                                                SECOND DIVISION
                                                                                    March 8, 2011




No. 1-10-1794

DELOYSE WILLIAMS,                                       )       Appeal from the
                                                        )       Circuit Court of
                Plaintiff-Appellant,                    )       Cook County
                                                        )
        v.                                              )       No. 06 L 9650
                                                        )
SEBERT LANDSCAPE COMPANY,                               )       Honorable
                                                        )       Susan McDunn,
                Defendant-Appellee.                     )       Judge Presiding.



        JUSTICE HARRIS delivered the judgment of the court, with opinion.
        Presiding Justice Cunningham and Justice Karnezis concurred in the judgment.

                                              OPINION

        Plaintiff Deloyse Williams sustained personal injuries from a slip and fall on a patch of

ice in the parking lot of the building where she worked in Elk Grove Village, Illinois. On

September 13, 2006, she sued both the owner of the property and the snow removal contractor

responsible for clearing the parking lot, alleging that their negligent snow removal caused her to

slip and fall. Williams settled with the property’s owner and proceeded to trial against the snow

removal contractor, defendant Sebert Landscape Company. On defendant’s motion and over

Williams’ objection the trial court instructed the jury as to plaintiff’s burden of proof using

Illinois Pattern Instructions (IPI) Civil 125 series designated for owner-occupiers rather than

contractors. The jury found in favor of defendant, Sebert Landscape. Williams then filed the

instant appeal, arguing that the trial court erred in giving the IPI Civil 125 series instructions. For
No. 1-10-1794

the following reasons, we reverse and remand for a new trial.

                                          JURISDICTION

        The trial court entered a final judgment in the instant case on May 24, 2010, and plaintiff

filed her notice of appeal on June 23, 2010. Accordingly, this court has jurisdiction pursuant to

Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered

below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

                                          BACKGROUND

        Plaintiff Deloyse Williams worked the night shift at a United States Postal Service

facility on Busse Highway in Elk Grove Village. At approximately 3:25 a.m. on the morning of

January 7, 2005, she was leaving her place of employment to take her lunch break. As she

crossed the parking lot to reach her car, Williams slipped and fell on a patch of ice. She testified

at trial that the ice patch measured approximately 10 inches by 10 inches and was 2 inches thick.

        Snow had fallen on January 5, 2005, two days prior to Williams’ fall, and Williams had

observed Sebert Landscape trucks plowing the parking lot at approximately 5:30 a.m. on January

6, 2005. Instead of moving the snow off the parking lot, the Sebert Landscape trucks piled snow

in the center of the lot.

        Williams filed a two-count complaint against defendants Centerpoint Properties, the

owner of the Busse Highway facility, and Sebert Landscape Company which, under contract

with Centerpoint, was responsible for clearing snow from the parking lot. Williams alleged that

both defendants were liable for negligently clearing snow from the parking lot on January 5,



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2005. Williams settled with Centerpoint on December 2, 2009, and proceeded to trial against

Sebert Landscape.

        At trial, Williams testified that she believed the ice patch on which she slipped was

formed by melted runoff from the snow pile in the middle of the parking lot that had later re-

frozen. Although Williams had testified at her discovery deposition that temperatures had stayed

below the freezing point during the time period in question, she testified at trial that temperatures

had warmed up during the daytime.

        The Centerpoint- Sebert Landscape contract required Sebert Landscape to clear snow

from the parking lot at the time of plaintiff’s fall. Sebert Landscape was not responsible for

clearing any ice that may have formed there. However, when clearing the snow the contractor

was permitted to salt the lot at its discretion.

        After all of the evidence had been presented, the trial court held a jury instruction

conference. Williams submitted instructions from the IPI Civil 20 series and Sebert Landscape

submitted instructions from the IPI Civil 125 series. The details of these instructions will be

discussed further below. Over Williams’ objections, the trial court used the 125 series instructing

the jury as to the plaintiff’s burden of proof. The jury found in favor of defendant Sebert

Landscape and the trial court entered judgment on the verdict.

        Williams filed a motion for a new trial, alleging that the trial court erred in using the 125

series instructions. In denying Williams’ motion, the trial court found that Sebert Landscape

stood in the position of an owner-occupier and thus was entitled to the 125 series instructions for



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No. 1-10-1794

owner-occupiers. The court explained its reasoning as follows: “[Sebert Landscape] clearly had

possession and control with regard to snow removal operations and the condition of the lot with

regard to snow or ice.”

        This timely appeal followed.

                                             ANALYSIS

        Williams argues on appeal that the trial court erred by giving the 125 series jury

instructions instead of the 20 series instructions. We review a trial court’s decision to give or

deny a jury instruction for abuse of discretion. Clarke v. Medley Moving & Storage, Inc., 381 Ill.

App. 3d 82, 91 (2008). In making such a decision, a trial court abuses its discretion if it gives

instructions that do not form a clear and correct picture of the applicable law and relevant

principles. Bulger v. Chicago Transit Authority, 345 Ill. App. 3d 103, 122 (2003). If a trial

court’s use of improper jury instructions seriously prejudices a party’s right to a fair trial, then

we shall grant that party a new trial. Bulger, 345 Ill. App. 3d at 121; see also Esser v. McIntyre,

169 Ill. 2d 292, 302-03 (1996) (“Since the jury was instructed on the wrong standard of care, the

decision of the circuit court must be reversed and the cause remanded.”).

        We begin by determining the proper standard of care that applied to Sebert Landscape as

a snow removal contractor. What standard of care a party owes another is a question of law and,

as such, we review that issue de novo. Simich v. Edgewater Beach Apartments Corp., 368 Ill.

App. 3d 394, 407 (2006). At trial, Sebert urged that it was subject to an owner-occupier standard

of care. The trial court agreed with this argument, explaining that Sebert stood in the shoes of



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Centerpoint, the actual owner-occupier of the Busse Highway property, with respect to care and

maintenance of the parking lot where Williams fell. This is not the correct standard of care.

       The law in Illinois is that in order for a defendant to be an owner-occupier or possessor of

land, he must occupy or possess the land with the intent to control it. Esser, 169 Ill. 2d at 302;

Madden v. F.H. Paschen, S.N. Nielson, Inc., 395 Ill. App. 3d 362, 375 (2009). The concept of

“control” is closely tied with the ability to exclude people from the use of a piece of property or

to direct how that property is to be used. Madden, 395 Ill. App. 3d at 376. In the instant case, no

evidence was presented at trial that Sebert Landscape occupied the parking lot at the Busse

Highway property with the intent to control it. Quite the contrary, Sebert was merely a snow

removal contractor that had contracted with the actual owner of the property to provide snow

removal services. Sebert employees and equipment arrived at the parking lot after snow storms

and remained there only long enough to remove the snow from the parking lot. Nothing in the

record indicates that Sebert intended to exert control over the parking lot in any way. Sebert

never sought to exclude people from the parking lot while it was engaged in its snow removal

duties, nor did Sebert direct the owners of parked cars to move their vehicles to facilitate a

speedier or more effective cleanup of the lot. Indeed, Williams testified at trial that she accessed

her car and drove the vehicle while Sebert was plowing the parking lot on January 6, 2005. Thus,

Williams should not have had to establish that Sebert Landscape, a contractor, breached the duty

of care applicable to an owner-occupier.

       Instead, Williams only had to establish ordinary negligence. Madeo v. Tri-Land



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No. 1-10-1794

Properties, Inc., 239 Ill. App. 3d 288, 290 (1992) (a contractor responsible for removing snow or

ice from a property owes a duty of reasonable care to those people on the property). The scope of

a snow removal contractor’s duty of care is delineated by the terms of its contract with the

property owner. Flight v. American Community Management, Inc., 384 Ill. App. 3d 540, 544

(2008). And where the contractor has such a duty, the duty is only to not negligently remove the

snow. Flight, 384 Ill. App. 3d at 544; McBride v. Taxman Corp., 327 Ill. App. 3d 992, 996

(2002); Madeo, 239 Ill. App. 3d at 290; Crane v. Triangle Plaza, Inc., 228 Ill. App. 3d 325, 330

(1992); Wells v. Great Atlantic & Pacific Tea Co., 171 Ill. App. 3d 1012, 1019 (1988); Burke v.

City of Chicago, 160 Ill. App. 3d 953, 957 (1987).

       In the instant case, the evidence presented at trial established that Sebert Landscape had

contracted with Centerpoint to remove snow, but not ice, from the parking lot at the Busse

Highway property. Thus, Sebert had a duty to be free of negligence in removing the snow from

Centerpoint’s parking lot. Flight, 384 Ill. App. 3d at 544. “The mere removal of snow which

may leave a natural ice formation remaining on the premises does not of itself constitute

negligence.” Wells, 171 Ill. App. 3d at 1017. A snow removal contractor negligently removes

snow if it creates or aggravates an unnatural accumulation of snow or ice. McBride, 327 Ill. App.

3d at 996.

       Now that we have determined that Williams had to establish ordinary negligence and not

the heightened standard for an owner-occupier, we must consider whether the jury instructions

given by the trial court formed a clear and correct picture of the applicable law. Bulger, 345 Ill.



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No. 1-10-1794

App. 3d at 121. Here, over Williams’ objection, the trial court used IPI Civil (2006) No. 125.02

for an owner-occupier. (Illinois Pattern Jury Instructions, Civil, No. 125.02 (2006) (hereinafter,

IPI Civil (2006) No. 125.02). Unlike Williams’ proffered, and rejected, jury instruction based on

IPI Civil (2006) No. 20.01 (Illinois Pattern Jury Instructions, Civil, No. 20.01 (2006)), the given

instruction, IPI Civil (2006) No. 125.02, explicitly requires that the plaintiff, among other things,

establish:

                       “First, there was an unnatural accumulation of ice on the

                property which presented an unreasonable risk of harm to people

                on the property.

                       Second, the defendant knew or in the exercise of ordinary

                care should have known of both the condition and the risk.” IPI

                Civil (2006) No. 125.02

        The trial court, after the close of the evidence phase of the trial, forced Williams to

establish two additional elements that she should never have had to prove, i.e., the existence of

an unnatural accumulation of ice on the property, and notice of the condition and the risk it

imposed. The comments to IPI Civil (2006) No. 125.02 make clear that if, as in the case of a

snow removal contractor, the defendant had a duty to remove snow, then this instruction should

not be used. IPI Civil (2006) No. 125.02 cmt (“If a duty to remove or protect against natural

accumulations of snow or ice is created by conduct or contract, then the plaintiff need not prove

the existence of an ‘unnatural accumulation’ and this instruction is inapplicable.”). Thus, by



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using IPI Civil (2006) No. 125.02, the trial court substantially changed Williams’ burden of

proof at trial by requiring her to establish an unnatural accumulation and notice, which is part of

the liability of an owner-occupier, not for a defendant snow removal contractor to whom those

elements in the burden of proof do not apply.

        Sebert Landscape relies on this court’s decision in Wells for the proposition that a snow

removal contractor must have knowledge of a dangerous accumulation of snow or ice in order to

be liable and therefore the trial court was correct in using IPI Civil (2006) No. 125.02. This

reading of Wells is incorrect. In Wells, the plaintiff slipped and fell on a patch of ice in a parking

lot and sued both the owner of the lot and the contractor responsible for removing snow from the

lot. Wells, 171 Ill. App. 3d 1014. The trial court granted summary judgment in favor of the

property owner and this court affirmed. Id. In its analysis, this court discussed how the property

owner, which generally does not have any duty to remove snow or ice, voluntarily assumed that

duty by contracting with the snow-removal contractor. Id. at 1019. Thus, the court explained, the

contractor owed the property owner a duty to comply with the contract and the plaintiff -- a user

of the property -- a duty to “abstain from negligence.” Id. Sebert’s contentions to the contrary,

nothing in the Wells opinion suggests that a snow removal contractor must know of a dangerous

condition that later causes a plaintiff’s injury; instead, the contractor owes users of the property a

duty of ordinary care. Id.

        If Sebert had negligently plowed the parking lot at the Busse Highway property and that

negligence was the proximate cause of Williams’ injury, then Sebert is liable. That is all



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Williams should have had to prove. She should not have been required to establish that there was

an unnatural accumulation of ice on the property that presented an unreasonable risk of harm to

people on the property, and that Sebert knew or in the exercise of ordinary care should have

known of both the condition and risk. Ordinary negligence was enough.

                                         CONCLUSION

       For the foregoing reasons, we reverse the judgment of the circuit court of Cook County

and remand for a new trial.

       Reversed and remanded.




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No. 1-10-1794




         REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT


      DELOYSE WILLIAMS,

                     Plaintiff-Appellant,

                v.

      SEBERT LANDSCAPE COMPANY,

                     Defendant-Appellee.


                                            No. 1-10-1794

                                  Appellate Court of Illinois
                                First District, Second Division

                                            March 8, 2011


                     JUSTICE HARRIS delivered the opinion to the court.

             PRESIDING JUSTICE CUNNINGHAM and JUSTICE KARNEZIS
                        concurred in the judgment and opinion.


                       Appeal from the Circuit Court of Cook County.

                       The Honorable Susan McDunn, Judge Presiding.


     Dean J. Caras & Associates, 320 West Illinois Street, Suite 2216,
     Chicago, IL 60654, (Dean J. Caras, of counsel), for APPELLANT.

     Sanchez Daniels & Hoffman, LLP, 333 West Wacker Drive, Suite 500,


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No. 1-10-1794

     Chicago, IL 60606, (John J. Piegore and Edric S. Bautista, of counsel),
     for APPELLEE.




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