Premises Owner Cannot Be Indemnified for Its Own Negligence in a Snow Removal Contract

January 2025

Jeffrey F. Clement

Illinois courts have recognized a distinction between the concepts of contribution and indemnity. Contribution arises under the Contribution Act, 740 ILCS 100/2(a) which is based on a party’s relative culpability. Conversely, indemnity shifts the “entire loss” from one tortfeasor to another. It follows that a claim for full indemnity must be premised on an agreement to assume “full indemnity” for a loss, including a loss caused in whole or in part by the indemnitee.

In the case of Broadway v. Walmart, Inc., et al., No. 23 C 1896, a United States District Court for the Northern District of Illinois was asked to apply these concepts to an indemnification provision in an agreement between a premises owner/manager and a snow removal contractor. The provision at issue required the snow removal contractor to defend and indemnify the owner/manager from and against “all liabilities … arising out of or in connection with … any alleged or actual personal injuries, including death or property damage resulting from [snow removal contractor’s work or presence on the Facilities … including but not limited to any negligent acts, errors or omissions, intentional misconduct or fraud of [snow removal contractor].”

The Plaintiff, Antonio Broadway, allegedly slipped and fell on snow and ice. Broadway sued the premises owner/manager. The owner/manager filed a third-party complaint against the snow removal contractor, which included a claim seeking contractual indemnity from the snow removal based upon the aforementioned indemnification provision.

The snow removal company filed a motion to dismiss the indemnity count based on the anti-indemnity provision of the Snow Removal Service Liability Limitation Act. 815 ILCS 675/10(1). The Act renders void a clause in a “snow removal and ice control services contract . . . if it [requires the] service provider to indemnify a service receiver for damages resulting from the acts or omissions of the service receiver.”

The Federal District Judge ruled that the indemnity claim could be pursued, but only to the extent it was consistent with the Illinois Contribution Act. The Court referred to case law interpreting the anti-indemnity provision in Illinois Construction Contract Indemnification for Negligence Act, 740 ILCS 35/1. Under that Act, contracts that require a contractor to indemnify another contractor for the original contractor’s own negligence are void as against public policy. However, parties are presumed to know existing law at the time they enter into a contract, and an interpretation of a contract that renders the agreement enforceable is preferable to an interpretation that renders it void. Pierre Condominium Association v. Lincoln Park West Associates, LLC, 378 Ill. App. 3d 770, 775, (1st Dist. 2007), citing Braye v. Archer Daniels Midland Co., 175 Ill. 2d 201 (1997). Therefore, in Illinois, such indemnity provisions are read as requiring contribution, rather than indemnification. Pierre Condominium Association, 378 Ill. App. 3d at 775.

Therefore, to the extent it was the owner/manager’s intent to seek “indemnification” only for the snow removal contractor’s share of liability, that claim is not barred by the Snow Removal Service Liability Limitation Act because it was consistent with the concept of contribution under the Contribution Act. However, if the owner/manager sought indemnification for liability based on their own conduct, such a claim would be barred as inconsistent with both the Anti-indemnity provision and the Contribution Act. In essence, the Court interpreted the owner/manager’s claim as seeking only “partial contractual contribution” and not full indemnification.

The decision of Broadway v. Walmart, Inc. is significant as it brings the anti-indemnity provision of the Snow Removal Service Liability Limitation Act in line with similar provisions contained within the Illinois Construction Contract Indemnification for Negligence Act. In cases where there is an applicable statutory provision against indemnification, a contractual provision calling for indemnification will be interpreted as seeking the same relief as common law contribution.