                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                     Greene v. Wood River Trust, 2013 IL App (4th) 130036




Appellate Court            MITZI O. GREENE, Plaintiff-Appellant, v. WOOD RIVER TRUST;
Caption                    TAYLOR REALTY, INC., d/b/a WOOD RIVER TRUST; RICHARD
                           W. TAYLOR, d/b/a WOOD RIVER TRUST; and RUSSELL H.
                           TAYLOR, d/b/a WOOD RIVER TRUST, Defendants-Appellees, and
                           RE/MAX REALTY ASSOCIATES, d/b/a WOOD RIVER TRUST;
                           RENEE TAYLOR, d/b/a WOOD RIVER TRUST; and JASON W.
                           OAKES, Respondents in Discovery.



District & No.             Fourth District
                           Docket No. 4-13-0036


Filed                      October 25, 2013


Held                       In an action for the injuries plaintiff sustained when she slipped and fell
(Note: This syllabus       on an icy walkway at her leased residence, the trial court properly
constitutes no part of     dismissed her willful and wanton claims and her request for additional
the opinion of the court   time to locate individuals who could support her claims, since plaintiff’s
but has been prepared      allegations did not show a deliberate intention to harm or a conscious
by the Reporter of         disregard for plaintiff’s welfare and she had 11 months to find supporting
Decisions for the          witnesses, but the dismissal of her negligence claims pursuant to the
convenience of the         Snow and Ice Removal Act was reversed, since the Act does not provide
reader.)
                           immunity for claims based on an icy condition caused by defective
                           construction or improper or insufficient maintenance.


Decision Under             Appeal from the Circuit Court of Champaign County, No. 12-L-14; the
Review                     Hon. Michael Q. Jones, Judge, presiding.
Judgment                   Affirmed in part and reversed in part; cause remanded with directions.


Counsel on                 Miranda L. Soucie (argued), of Spiros Law, P.C., of Danville, for
Appeal                     appellant.

                           Michael E. Raub (argued), of Heyl, Royster, Voelker & Allen, of Urbana,
                           for appellees.


Panel                      JUSTICE HARRIS delivered the judgment of the court, with opinion.
                           Presiding Justice Steigmann and Justice Holder White concurred in the
                           judgment and opinion.




                                             OPINION

¶1          On February 12, 2010, plaintiff, Mitzi O. Greene, slipped and fell on an icy walkway near
        the entrance of a residence she leased from defendants, Wood River Trust; Taylor Realty,
        Inc., d/b/a/ Wood River Trust; Richard W. Taylor, d/b/a Wood River Trust; and Russell H.
        Taylor, d/b/a Wood River Trust. After plaintiff filed a complaint alleging negligence,
        defendants moved to dismiss plaintiff’s complaint pursuant to section 2-619 of the Code of
        Civil Procedure (Code) (735 ILCS 5/2-619 (West 2010)), arguing plaintiff’s negligence
        claims were barred by the Snow and Ice Removal Act (Act) (745 ILCS 75/1 et seq. (West
        2010)). The trial court dismissed plaintiff’s complaint but allowed plaintiff to amend to
        allege willful and wanton misconduct, an exception to the immunities otherwise provided
        by the Act. Defendants moved to dismiss plaintiff’s first amended complaint pursuant to
        section 2-615 of the Code (735 ILCS 5/2-619 (West 2010)), which the court granted. In
        addition, the court allowed plaintiff to further amend her complaint to allege willful and
        wanton misconduct. Defendants moved to dismiss plaintiff’s second amended complaint
        pursuant to section 2-615 of the Code, which the court granted.
¶2          Plaintiff appeals, arguing the trial court erred in (1) determining that the Act barred her
        negligence claims against defendants, (2) dismissing her second amended complaint because
        she properly pled a willful and wanton exception to the immunity otherwise provided by the
        Act (745 ILCS 75/2 (West 2010)), and (3) denying her request for additional time to locate
        individuals to aid in providing factual support for her claims. We affirm in part, reverse in
        part, and remand for further proceedings.

¶3                                    I. BACKGROUND
¶4         On January 23, 2012, plaintiff filed a complaint in negligence alleging that she slipped

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     and fell near the entrance of a residence she leased from defendants due to the icy condition
     of defendants’ walkway. Plaintiff alleged several theories of negligence concerning the
     walkway, including that defendants negligently failed to (1) provide a safe walkway in
     violation of the Premises Liability Act (740 ILCS 130/1 to 5 (West 2010)); (2) maintain and
     provide a properly pitched overhang roof; (3) provide properly hung and sized gutters; (4)
     provide properly hung and sized downspouts; (5) provide an adequate number of
     downspouts; (6) allow proper drainage to occur from the overhang roof onto the walkway;
     (7) correct or repair the gutters, downspouts, and overhang; (8) keep the gutters and
     downspouts “free and clear at all times of stored materials”; (9) keep the gutters and
     downspouts “free and clear at all times of ice”; and (10) keep the gutters and downspouts
     “free and clear at all times of mud and refuse.” As a proximate result, plaintiff alleged,
     defendants’ negligence resulted in an unnatural accumulation of water on a walkway which
     froze and caused plaintiff to slip and fall, suffering “serious and permanent injuries to her
     shoulder.”
¶5       On March 2, 2012, defendants filed a motion to dismiss under section 2-619(a)(9) of the
     Code, arguing defendants were immune from liability under the Snow and Ice Removal Act.
     Defendants attached to their motion a contract, in effect at the time of plaintiff’s fall, with
     Jason Oakes for snow and ice removal at multiple locations, including the residence plaintiff
     leased from defendants. Following a hearing, the trial court granted defendants’ motion and
     dismissed plaintiff’s complaint, finding the negligence claim was barred by the Act. Plaintiff
     sought leave to file an amended complaint to allege willful and wanton misconduct, an
     exception to the immunities otherwise provided by the Act. The court granted plaintiff’s
     motion.
¶6       On May 22, 2012, plaintiff filed her first amended complaint alleging defendants engaged
     in willful and wanton misconduct. Plaintiff’s willful and wanton claim reiterated the
     negligence claim allegations, adding that defendants acted with “utter indifference to or
     conscious disregard” and “with a reckless disregard for the safety” of plaintiff. Defendants
     moved to dismiss plaintiff’s first amended complaint pursuant to section 2-615 of the Code
     (735 ILCS 5/2-615 (West 2010)), arguing plaintiff’s allegations that defendants failed to
     perform routine maintenance of gutters and downspouts did not constitute willful and wanton
     misconduct. Following a hearing, the trial court granted defendants’ motion and dismissed
     the first amended complaint. The court allowed plaintiff’s motion to further amend her
     complaint to allege willful and wanton misconduct.
¶7       On August 30, 2012, plaintiff filed her second amended complaint. This time, plaintiff
     reasserted her original negligence claims in counts I, III, V, and VII, and reiterated her willful
     and wanton allegations in counts II, IV, VI, and VIII. Defendants moved to dismiss plaintiff’s
     second amended complaint pursuant to section 2-615 of the Code, arguing (1) the trial court
     had already found plaintiff’s negligence claims barred by the Act and (2) plaintiff’s
     allegations of willful and wanton misconduct were still not sufficient to state a cause of
     action. Plaintiff stated that she incorporated her “prior arguments made before the court.”
     The court granted defendants’ motion and dismissed the second amended complaint with
     prejudice.
¶8       This appeal followed.

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¶9                                            II. ANALYSIS
¶ 10       On appeal, plaintiff argues the trial court erred in determining that the Act barred her
       negligence claims against defendants. Specifically, plaintiff argues the Act does not apply
       where 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.
¶ 11       After plaintiff filed her initial complaint alleging negligence, defendants filed a motion
       to dismiss under section 2-619(a)(9) of the Code, arguing that plaintiff’s complaint was
       barred by the Act. Section 2-619 allows for the involuntary dismissal of a cause of action
       based on certain defects and defenses, including on the ground “the claim asserted against
       defendant is barred by other affirmative matter avoiding the legal effect of or defeating the
       claim.” 735 ILCS 5/2-619(a)(9) (West 2010). The dismissal of a complaint pursuant to
       section 2-619(a)(9) is reviewed de novo. Lacey v. Village of Palatine, 232 Ill. 2d 349, 359,
       904 N.E.2d 18, 24 (2009).
¶ 12       The Snow and Ice Removal Act contains two relevant parts, which state:
                “§ 1. It is declared to be the public policy of this State that owners and others residing
           in residential units be encouraged to clean the sidewalks abutting their residences of
           snow and ice. The General Assembly, therefore, determines that it is undesirable for any
           person to be found liable for damages due to his or her efforts in the removal of snow or
           ice from such sidewalks, except for acts which amount to clear wrongdoing, as described
           in Section 2 of this Act.
                § 2. Any owner, lessor, occupant or other person in charge of any residential property,
           or any agent of or other person engaged by any such party, who removes or attempts to
           remove snow or ice from sidewalks abutting the property shall not be liable for any
           personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting
           from his or her acts or omissions unless the alleged misconduct was willful or wanton.”
           745 ILCS 75/1, 2 (West 2010).
¶ 13       The Illinois legislature enacted the Snow and Ice Removal Act to provide immunities and
       defenses to “owners and others residing in residential units.” 745 ILCS 75/1 (West 2010).
       By shielding residential owners from negligence claims under the Act, the Illinois legislature
       sought to encourage the cleaning of snow and ice from sidewalks abutting residences. 745
       ILCS 75/1 (West 2010). In interpreting a provision of the Act, as with any statute, our
       primary goal is to ascertain and give effect to the intention of the legislature. Ries v. City of
       Chicago, 242 Ill. 2d 205, 215-16, 950 N.E.2d 631, 637 (2011). We seek that intent first from
       the plain language used in the statute, and if that language is clear and unambiguous, we are
       not at liberty to depart from its plain meaning. Ries, 242 Ill. 2d at 216, 950 N.E.2d at 637.
       We review de novo the interpretation of a statute as a question of law. Abruzzo v. City of
       Park Ridge, 231 Ill. 2d 324, 332, 898 N.E.2d 631, 636 (2008).
¶ 14       Under the common law, a landowner has no duty to remove natural accumulations of
       snow or ice (Claimsone v. Professional Property Management, LLC, 2011 IL App (2d)
       101115, ¶ 18, 956 N.E.2d 1065), but exceptions have been made where some other act of
       negligence contributes to the condition.

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                “One is generally not liable for injuries caused by natural accumulations of ice or
            snow, and there is no [common law] duty to remove natural accumulations of ice or
            snow. [Citation.] However, a [common law] duty may arise on the part of the
            defendant-premises owner, if the defendant voluntarily undertook the task of removing
            natural accumulations of ice or snow and did so negligently or if the defendant was
            responsible for an unnatural accumulation of ice or snow. Liability will be imposed on
            a defendant where the plaintiff shows an injury that was caused by such an unnatural
            accumulation of ice or snow. [Citation.]” Ordman v. Dacon Management Corp., 261 Ill.
            App. 3d 275, 279, 633 N.E.2d 1307, 1310 (1994).
¶ 15        Further, an exception to the common law “no duty” rule is made where “the
       accumulation of ice or snow becomes unnatural due to the design and construction of the
       premises.” McLean v. Rockford Country Club, 352 Ill. App. 3d 229, 233-34, 816 N.E.2d 403,
       408 (2004).
            “The construction and maintenance of a landowner’s property are matters within the
            landowner’s control. [Citation.] Therefore, Illinois courts have noted that ‘[i]t is not
            imposing an undue burden on [the landowner] to require him not to add to the difficulties
            facing Illinois residents from natural accumulations of ice and snow by permitting
            unnatural accumulations due to defective construction or improper or insufficient
            maintenance of the premises.’ ” McLean, 352 Ill. App. 3d at 234, 816 N.E.2d at 408
            (quoting Bloom v. Bistro Restaurant Ltd. Partnership, 304 Ill. App. 3d 707, 711, 710
            N.E.2d 121, 123 (1999)).
¶ 16        The Snow and Ice Removal Act was enacted in derogation of the common law. See
       Gallagher v. Union Square Condominium Homeowner’s Ass’n, 397 Ill. App. 3d 1037, 1043,
       922 N.E.2d 1201, 1207 (2010) (“The Act is in derogation of this common law in that it
       provides immunity for injuries sustained by a person as a result of the attempted clearing of
       sidewalks abutting the property.”). “[A] court cannot construe a statute in derogation of the
       common law beyond what the words of the statute expresses [sic] or beyond what is
       necessarily implied from what is expressed.” Adams v. Northern Illinois Gas Co., 211 Ill. 2d
       32, 69, 809 N.E.2d 1248, 1271 (2004). “Any legislative intent to abrogate the common law
       must be clearly and plainly expressed, and we will not presume from ambiguous language
       an intent to abrogate the common law.” Heider v. Knautz, 396 Ill. App. 3d 553, 561, 919
       N.E.2d 1058, 1065 (2009). The repeal or preemption of a common law remedy by
       implication is not favored. Callahan v. Edgewater Care & Rehabilitation Center, Inc., 374
       Ill. App. 3d 630, 634, 872 N.E.2d 551, 553 (2007). An act in derogation of the common law
       must be construed strictly against the entity claiming immunity. Van Meter v. Darien Park
       District, 207 Ill. 2d 359, 368, 799 N.E.2d 273, 279 (2003).
¶ 17        Here, the Act provides owners, lessors, occupants, or other persons in charge of
       residential property immunity for injuries caused by snow and ice removal efforts, unless
       their acts or omissions constitute willful and wanton misconduct. 745 ILCS 75/2 (West
       2010). The legislature intended for such persons to be immune from liability where they
       negligently remove or attempt to remove snow or ice from a residential walkway. This
       represents a clear conflict with common law negligence claims, where liability may be
       imposed on an owner for injuries caused by an owner’s voluntary and negligent removal of

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       ice or snow, causing an unnatural accumulation. We presume the legislature was familiar
       with the aforementioned common law cause of action. See People v. Hickman, 163 Ill. 2d
       250, 262, 644 N.E.2d 1147, 1153 (1994) (“it must be presumed that the legislature acted with
       knowledge of the prevailing case law”). It is apparent then the Act was intended to modify
       common law liability for owners and others residing in residential units who negligently
       remove or attempt to remove snow or ice from sidewalks abutting their property. 745 ILCS
       75/2 (West 2010).
¶ 18        Here, plaintiff alleges her injuries were not the result of any efforts to remove snow or
       ice from a walkway, but instead resulted from an icy condition caused by the defective
       condition of the building adjacent to the walkway. Therefore, the Act does not apply to bar
       her negligence claim. The plain language of the Act indicates it does not apply to negligence
       actions for injuries caused by defective construction or improper or insufficient maintenance
       of the premises. Instead, the Act applies only to immunize an owner’s negligent efforts to
       remove snow and ice from residential sidewalks.
¶ 19        Were we to hold that the Act also applied where an unnatural accumulation of ice was
       caused by defective construction or improper or insufficient maintenance of the premises,
       we would be repealing a common law remedy by implication, which is not favored. See
       Callahan, 374 Ill. App. 3d at 634, 872 N.E.2d at 553. Accordingly, we conclude 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 snow and ice removal efforts.
¶ 20        Defendants cite Pikovsky v. 8440-8460 North Skokie Boulevard Condominium Ass’n,
       2011 IL App (1st) 103742, 964 N.E.2d 124, and Gallagher in support of their argument that
       the Act applies. However, these cases are clearly distinguishable. The plaintiffs in Pikovsky
       and Gallagher alleged they fell on unnatural accumulations caused by snow removal efforts,
       and not unnatural accumulations caused by defective construction or improper or insufficient
       maintenance of the premises.
¶ 21        In Pikovsky, the defendants entered into contracts for snow removal that included a
       parking lot and sidewalk, but did not include a rear entrance sidewalk. Pikovsky, 2011 IL
       App (1st) 103742, ¶ 3, 964 N.E.2d 124. The plaintiff fell due to icy snow mounds formed by
       snow that was plowed from the parking lot onto the rear entrance sidewalk. Pikovsky, 2011
       IL App (1st) 103742, ¶ 4, 964 N.E.2d 124. The plaintiff filed a negligence complaint alleging
       the defendants failed to exercise reasonable care by creating an unsafe and dangerous
       condition of unnatural accumulation of snow and ice on the rear entrance sidewalk. Pikovsky,
       2011 IL App (1st) 103742, ¶ 5, 964 N.E.2d 124. The appellate court found the Act barred the
       plaintiff’s negligence claim where the contracting for snow and ice removal constituted “a
       conscious effort to clear snow and ice,” and the defendants’ failure to remove the snow and
       ice mounds from the rear entrance sidewalk was an omission in their overall snow removal
       efforts. Pikovsky, 2011 IL App (1st) 103742, ¶ 13, 964 N.E.2d 124. We note that Pikovsky
       is factually dissimilar to the present case as the unnatural accumulation of snow and ice in
       Pikovsky was allegedly due to the defendants’ snow removal efforts. Such allegations of
       snow removal efforts are notably absent here. Further, to the extent Pikovsky holds that an
       owner’s contracting for snow and ice removal equates to snow and ice removal efforts under

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       the Act, we decline to adopt this holding. Pikovsky, 2011 IL App (1st) 103742, ¶ 13, 964
       N.E.2d 124. We conclude the plain language of the statute so constrains us.
¶ 22         In Gallagher, the defendants plowed snow from the plaintiff’s driveway causing
       unnatural accumulations of snow and ice. Gallagher, 397 Ill. App. 3d at 1039, 922 N.E.2d
       at 1204. The plaintiff fell while walking on the plowed path on his driveway, sustaining
       serious injuries. Gallagher, 397 Ill. App. 3d at 1039, 922 N.E.2d at 1204. The plaintiff
       alleged that the defendants were negligent in creating an unnatural accumulation of snow and
       ice on the plaintiff’s driveway. Gallagher, 397 Ill. App. 3d at 1039, 922 N.E.2d at 1204.
       However, the appellate court found the plain language of the Act did not provide immunity
       for injuries sustained on a driveway; it only applied to snow removal efforts on sidewalks.
       Gallagher, 397 Ill. App. 3d at 1047, 922 N.E.2d at 1210.
¶ 23         In sum, we conclude 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. Accordingly, the trial court erred when it dismissed plaintiff’s second amended
       complaint on the basis that her negligence allegations were barred by the Act.
¶ 24         Plaintiff next argues the trial court erred by dismissing counts II, IV, VI, and VIII of her
       second amended complaint alleging willful and wanton misconduct. To plead willful and
       wanton misconduct, a plaintiff must allege duty, breach of duty, proximate cause, and “either
       a deliberate intention to harm or a conscious disregard for the plaintiff’s welfare.” Doe-3 v.
       McLean County Unit District No. 5 Board of Directors, 2012 IL 112479, ¶ 19, 973 N.E.2d
       880. Here, the trial court granted defendants’ motion to dismiss after finding plaintiff’s
       second amended complaint failed to sufficiently allege defendants’ conduct was willful and
       wanton. We agree. The factual allegations made by plaintiff do not demonstrate “either a
       deliberate intention to harm or a conscious disregard for the plaintiff’s welfare” as outlined
       by our supreme court. Doe-3, 2012 IL 112479, ¶ 19, 973 N.E.2d 880. Thus, the trial court
       did not err by dismissing counts II, IV, VI, and VIII of plaintiff’s second amended complaint.
¶ 25         Plaintiff next argues the trial court erred by denying her request for additional time to
       locate individuals to aid in providing factual support for her claims. “A trial court is given
       great latitude in determining the scope of discovery, and discovery orders will not be
       disturbed absent an abuse of discretion.” Manns v. Briell, 349 Ill. App. 3d 358, 361, 811
       N.E.2d 349, 352 (2004). Plaintiff filed her initial complaint in this case on January 23, 2012,
       and the trial court dismissed her second amended complaint on December 21, 2012. The trial
       court provided claimant approximately 11 months to locate individuals for purposes of this
       case and, thus, did not abuse its discretion by denying her request for additional time.
¶ 26         We express no opinion regarding the factual sufficiency of the negligence counts (counts
       I, III, V, and VII) of plaintiff’s second amended complaint. Although the trial court dismissed
       the negligence counts in plaintiff’s second amended complaint based on defendants’ section
       2-615 motion to dismiss, the dismissal was actually pursuant to section 2-619. The case is
       ordered remanded to the trial court with directions that counts I, III, V, and VII of plaintiff’s
       second amended complaint be reinstated and that defendants answer or otherwise plead to
       these counts.


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¶ 27                                   III. CONCLUSION
¶ 28      For the foregoing reasons, we affirm the trial court’s (1) dismissal of plaintiff’s willful
       and wanton claims and (2) denial of plaintiff’s request for additional time for discovery.
       However, we reverse the trial court’s dismissal of plaintiff’s negligence claims based on the
       Snow and Ice Removal Act, and we remand with directions.

¶ 29      Affirmed in part and reversed in part; cause remanded with directions.




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