Another Victory for Snow Removal Contractors

Jordan v. Kroger Co., 2018 IL App (1st) 180582

June 2019

By: William F. Moore

On December 18, 2018, snow removal contractors in Illinois scored another victory in their never ending battle against slip-and-fall claims. The First District of Illinois Appellate Court affirmed summary judgment in favor a snow removal contractor finding that business invitees are not third-party beneficiaries of snow and ice removal contracts.

In Jordan v. Kroger Co., 2018 IL App (1st) 180582, the Plaintiff slipped and fell on a formation of black ice outside of a grocery store. Without any evidence to establish that the black ice was an unnatural accumulation caused or created by the landowner or snow removal contractor, the Plaintiff turned to the contract between the landowner and a local snow removal contractor in an attempt to create a question of fact and survive summary judgment. Relying on Section 324A of the Restatement (Second) of Torts, the Plaintiff argued that both the landowner and the snow removal contractor voluntarily undertook a duty to remove both natural and unnatural accumulations of snow and ice on the property and, therefore, they both may be held liable in tort to third parties for negligently failing to fulfill their assumed duties and allowing black ice to form in the parking lot.

Relying on Wells v. Great Atlantic & Pacific Tea Co., 171 Ill.App.3d 1012 (1st Dist 1988), where the injured party was similarly unable to present any evidence that the ice she slipped on was an unnatural accumulation, but argued nonetheless that the snow removal contractor could still be held liable based on its failure to completely remove all snow from the premises as required under its contract with the landowner, the Court restated its long held position that merely entering into a snow removal contract does not create a duty on the part of the contracting parties to protect third parties from natural accumulations of snow and ice where the third party does not actually rely on the contract.

The Court rejected the Plaintiff's argument that the facts and circumstances of her case are analogous to those discussed in both Schoondyke v. Heil, Heil, Smart & Golee, Inc., 89 Ill.App.3d 640 (1st Dist. 1980) and Tressler v. Winfield Village Cooperative, Inc., 134 Ill.App.3d 578 (4th Dist. 1985). Specifically, the Court noted that in both Schoondyke and Tressler, the injured parties were not business invitees like Plaintiff but, rather, were condominium residents that brought lawsuits against their respective condominium associations after they slipped and fell on snow or ice that was allowed to form on the common areas of their respective condominium properties. The residents argued that their associations assumed a duty in the condominium association bylaws to remove all snow from the common areas of the condominium property. The Court found that based on the condominium associations' agreement in the bylaws to remove snow from the common areas of the condominium properties, the residents could reasonably rely on the fact that the services would in fact be provided for them. The Court further noted that unlike the instant scenario involving a business invitee at a store or commercial establishment, policy and social requirements specific to the condominium community dictate that a duty is created in that type of situation.

Although it may seem clear, the number of plaintiff's attorneys who fail (or refuse) to recognize the distinction the Court has drawn between business invitees and condominium residents in snow removal slip and fall cases is staggering. Jordan should serve as additional support for landowners and snow removal contractors when replying to responses to motions for summary judgment that erroneously argue that a duty was created on the part of the snow removal contract based on the mere existence of a contract with the landowner.

UPDATE: Mickens v. CPS Chi. Parking, LLC, 2019 IL App (1st) 180156

On June 26, 2019, the First District of the Illinois Appellate Court promptly removed all of the wind from the sails of snow removal contractors (not to mention their insurers and defense counsel) when it reversed summary judgment in favor of a snow removal contractor finding that it is not entitled to the protections of the natural accumulation rule and that a question of fact exists as to whether it performed its snow removal obligations with reasonable care, which precluded summary judgment. In Mickens, the plaintiff slipped and fell on ice that formed on a ramp at a train station. The Court ruled that summary judgment as to both the landowner and snow removal contractor was in error. As to the landowner, the Court reversed summary judgment after finding that a question of fact existed as to whether the snow and ice that plaintiff slipped and fell upon was a natural accumulation. More importantly, however, in reversing summary judgment in favor of the snow removal contractor, the Court noted its belief that the public policy arguments that support application of the natural accumulation rule as to landowners do not apply to snow removal contractors. Specifically, the Court noted that Section 324A of the Restatement (Second) of Torts, which deals with tort liability for voluntary undertakings, does not incorporate the natural accumulation rule. Rather, it says that if one promises to perform a service that is intended for the safety of third parties, and they do not perform that service with reasonable care, they can and should be held liable to the third party for any injuries or damages that result therefrom. The Court noted that although the winter weather in Illinois is unpredictable and that the constantly changing weather conditions would undoubtedly expose them to additional liability, snow removal contractors exist for the sole purpose of removing snow and generating income from doing so. Departing from the long established rule that landowners and snow removal contractors cannot be liable to third-parties for injuries caused by natural accumulations of snow and ice, the Court held that a snow removal contractor’s duty should be determined based on its contract with the landowner and its liability should be determined based on whether it performed its contractually obligated duties with reasonable care. The Court found that there is no reason to continue insulating snow removal contractors from liability by lumping them in with landowners

The impact of the Court’s decision in Mickens will undoubtedly be far-reaching. For example, snow removal contractors with “zero tolerance” contracts are no longer protected from liability if a third-party slips and falls on a natural accumulation of snow or ice before they are able to respond. Rather, a fact question will exist whether the contractor’s response was reasonable. This ruling will also require snow removal contractors to be more conscious and aware of the actual services that they have contractually agreed to perform. A snow removal contractor that uses multiple different contracts, will need to be more cognizant of what services it tells its workers to perform for each different customer. In the litigation context, as noted above, the Court’s ruling in Mickens will undoubtedly make it much more difficult for snow removal contractors to obtain summary judgment because the question of whether a snow removal contractor used reasonable care will almost always be a question of fact.