Illinois Appellate Court Analyzes the Definition of “Sidewalk” Under the Snow and Ice Removal Act’s Immunity Provision

June 2018

In Hussey v. Chase Manor Condominium Association, et al., (2018) IL App. 1st 170437, the First District Appellate Court reversed the trial court’s ruling that an informal pathway behind a condominium building was a sidewalk under the Snow and Ice Removal Act (“Act”) 745 ILCS 75/2 (West 2012). The appellate court held that the term “sidewalk” is limited to a municipal right-of-way, which is the portion of the public street reserved for pedestrians that abuts private residential property.

In the Hussey case, plaintiff slipped and fell on a patch of ice in the rear of her condominium building in the City of Chicago. She then filed suit against the condominium association and two other defendants. Plaintiff alleged that she slipped and fell due to negligent snow removal that created an unnatural surface.

The back of the building, where the incident occurred, looked like a normal alley in Chicago. The primary function of the rear area of the building was to allow condominium owners to park their vehicles and to enter the rear of the building. Some of the cars would be parallel parked, and others would be parked in a north-south fashion. There was a middle space between the parallel-parked cars and the north-south parked cars, which was wide enough for a vehicle to travel to and from the various parking spaces. The middle space was also wide enough for people to walk through.

This middle space is where the plaintiff slipped and fell while walking to the laundry room in her building. In its opinion, the appellate court referred to the area where plaintiff fell as the “parking lot pathway.”

Shortly before the date of the incident, the condo association for the plaintiff’s building hired a person to remove snow from the rear of the building. This individual piled up snow against the wall of the building, approximately five feet in height. On the date of the accident, the plaintiff was traversing the parking lot pathway in order to use the laundry room when she slipped on a patch of ice near one of the parking blocks next to the building. In her complaint, the plaintiff alleged that the snow pile melted when the temperatures warmed causing the melted snow to travel downhill onto the parking lot pathway. The temperatures dropped again, causing the water to refreeze and therefore, ice formed on the parking lot pathway.

The defendants moved for summary judgment, arguing that the Act provided them immunity for removing or attempting to remove snow and ice from sidewalks abutting property, such as where the plaintiff fell, because their alleged conduct was not willful or wanton. Section 2 of the Act provides 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 the sidewalks abutting the property shall not be liable for any personal injuries allegedly caused by the snowy or icy conditions of the sidewalk resulting from his or her acts or omissions unless the alleged misconduct was willful or wanton.” 745 ILCS 75/2 (West 2012).

The trial court agreed with the defendants that the parking lot pathway was a sidewalk within the meaning of the Act, and entered summary judgment in their favor. The plaintiff appealed, arguing, inter alia, that the area where she fell was not a sidewalk as defined by the Act, and therefore, the immunity provision in the Act was inapplicable.

In their appellate brief, the defendants cited several Illinois appellate cases to advance the argument that the definition of “sidewalk” should be somewhat broadly construed. In one case, on which the trial court relied, a driveway was considered to be a sidewalk under the Act. In that case, the plaintiff slipped and fell on ice while walking on the driveway to his apartment. The court in that case noted that because the plaintiff was walking on the driveway to his apartment, the driveway was similar enough to a sidewalk for the Act to apply. Therefore, the defendant was provided with immunity pursuant to Section 2 of the Act.

In the present case, the appellate court rejected the defendants’ arguments. First, the court reasoned that, pursuant to other Illinois appellate cases, which were more on point, the word “sidewalk” is to be strictly and narrowly defined. Therefore, a strict construction of “sidewalk” would not include something that is not clearly a sidewalk, even if it somewhat resembles one, such as a driveway, or as in the present case, an informal pathway behind a condominium building.

The appellate court further noted that the Illinois Supreme Court has held that the Act does not abrogate common law claims of a defective condition on the property that causes an unnatural accumulation of snow or ice. Statutes in derogation of the common law must be strictly construed so that they do not abrogate existing common law causes of action. Therefore, the Supreme Court warned against an overly-broad interpretation of the Act, including the term “sidewalk”.

The court also found that the Act, and the relevant cases construing it, mandated a strict construction of the phrase “sidewalk abutting the property” of a residential landowner. The court wrote that 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. Additionally, Section 2 of the Act, which includes the immunity provision, pertains to sidewalks bordering the property. It does not, for example, refer to sidewalks bordering a home, which is a much more expansive reading of the Act that permits the inclusion of many types of private walkways going to and from a home. The court further noted that under no circumstances could these private walkways be considered to be “abutting” the residential property. Rather, they are residential property. The court reasoned that a strict reading of the term “sidewalk” could only lead to the conclusion that the General Assembly, when it created the Act, was referring to a municipal sidewalk, which is a public right-of-way reserved for pedestrians, and bordering the property of a residential landowner.

The court further stated that since the late 1800s, the Illinois Supreme Court has made it clear in cases involving other statutory interpretations of the word “sidewalk” that a “sidewalk” is public property, and has interpreted that word as a statutory term. It was against this backdrop that the General Assembly enacted the Act. As such, the court could not accept that the General Assembly intended the word “sidewalk” to mean something different than what it had meant in other Illinois statutes which have narrowly defined “sidewalk”.

In summary, the court held that the phrase “sidewalks abutting the property” of a residential landowner did not include walkways on private property, such as the parking lot pathway where the plaintiff slipped and fell. Accordingly, regardless of whether the plaintiff’s incident occurred in a “parking area,” a “walkway on private property” or a hybrid of both, it did not occur on a “sidewalk” within the meaning of the Act. Therefore, the Act was inapplicable in this case and the defendants’ motion for summary judgment was reversed and remanded.

It is important for property owners in Illinois and their insurers to be aware of the court’s holding in the Hussey case. As noted in the court’s decision, the term “sidewalk” is to be narrowly construed under the Snow and Ice Removal Act, which potentially reduces the protections afforded by the immunity provision of the Act to property owners.