Russell v. Village of Lake Villa

Case Date: 12/30/2002
Court: 2nd District Appellate
Docket No: 2-01-1002 Rel

No. 2--01--1002


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


RICHARD RUSSELL, ) Appeal from the Circuit Court
) of Lake County.
              Plaintiff-Appellant, )
)
v.

No. 00--L--34

)
THE VILLAGE OF LAKE VILLA, ) Honorable
) John R. Goshgarian,
             Defendant-Appellee. ) Judge, Presiding.

JUSTICE KAPALA delivered the opinion of the court:

Plaintiff, Richard Russell, appeals from an order of thecircuit court of Lake County granting summary judgment to thedefendant, the Village of Lake Villa (the Village). For thereasons that follow, we reverse the judgment of the circuit courtand remand the cause for further proceedings.

FACTS

At 7 a.m. on January 18, 1999, plaintiff, Richard Russell, wasrushing to catch the Metra commuter train that left from Lake Villaen route to Chicago when he slipped on a patch of ice in thatportion of the train station that was owned and maintained by thedefendant Village. His slip on the ice caused him to fall andbecome injured. At the place where he slipped on the ice, thesurface consisted of brick pavers under an overhang. A parking lotwith handicapped spaces was adjacent. Employees of the Village hadplowed snow in the parking lot and piled it over the curbing forthe handicapped slots. Photographs show the snow pile to be inclose proximity to the brick pavers, with some of it actually onthe pavers and with ice having formed in the parking lot and on thepavers around the base of the snow mound. Employees of the Villagewere supposed to keep the pavers and walkways free from snow andice and were instructed to salt the pavers whenever they saw acondition of ice or snow. Glen McCollum, the Village's director ofpublic works, inspected the train station every day, inside andoutside, most likely including the day plaintiff fell and wasinjured. McCollum himself also plowed the parking lot near thehandicapped spaces. According to McCollum, the Village owned thearea covered by the pavers where plaintiff slipped on the ice,while Metra owned and maintained a concrete platform from whichpeople boarded and exited the trains. He also testified that the snow pile depicted in the photographs could have been a "combinedeffort" between the Village and Metra because Metra needed to cleanits platform and he did not know where Metra put its snow, althoughMcCollum ususally was the one who plowed where the mound of snowwas piled. That Metra may have blown its snow onto the pile was an"assumption" on his part.

According to plaintiff, at the time he slipped on the ice, themorning was "pretty cold." He did not recall any recent snows. Hedid not remember whether any water was dripping or whether therewas any water on the ground where he slipped. He knew he slippedon a patch of ice on the pavers where the ice formed an apron atthe base of the mound of snow that had been plowed and piled overthe handicapped parking curbings. Although plaintiff did not seesnow melting from that mound, in looking at a photograph taken theday after his injury, he testified at his deposition that it seemed"clear" to him that "the ice got there as a result of the snowmelting in liquid form and then being frozen as the temperaturelowered." He testified that the days were warm and the nights werebelow freezing. McCollum, at his deposition, looked at thephotograph and testified that the mound was not from a new snowevent and that it appeared as though the ice had formed from snowmelting off that mound. He also testified that, as a generalproposition, he was aware that snow could melt and form ice when itrefroze and could, therefore, cause a dangerous condition in thewalkways.

The Village brought a motion for summary judgment on the sole basis that the accumulation of ice upon which plaintiff slipped andwhich caused him to be injured was a natural accumulation. Thetrial court granted the Village's motion and denied plaintiff'smotion to reconsider. Plaintiff timely appeals from the denial ofhis motion to reconsider.

DISCUSSION

Plaintiff first contends on appeal that the trial court erredin granting summary judgment because, he asserts, the trial courtwas presented with a genuine issue of material fact as to whetherthe accumulation of ice was an unnatural condition, which wouldfoist liability on the Village. We agree with plaintiff.

We review de novo a grant of summary judgment. County of Lakev. Board of Education of Lake Bluff School District No. 65, 325Ill. App. 3d 694, 698 (2001). Summary judgment is appropriate whenthe pleadings, depositions, and affidavits show that there is nogenuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Grobe v. HollywoodCasino--Aurora, Inc., 325 Ill. App. 3d 710, 715 (2001). If fair-minded people could draw different inferences from the undisputedfacts, summary judgment should not be granted. Grobe, 325 Ill.App. 3d at 715. Summary judgment is a drastic means of resolvinglitigation and should be allowed only when the moving party's rightto judgment is clear and free from doubt. Elizondo v. Ramirez, 324Ill. App. 3d 67, 71 (2001). The aim of summary judgment is not totry issues, but to determine whether any triable issues of factexist. Aetna Casualty & Surety Company of Illinois v. James J.Benes & Associates, Inc., 229 Ill. App. 3d 413, 416 (1992).

We point out that the Village does not dispute that the icepatch was the proximate cause of plaintiff's injuries. The Villagecasts the issue as follows: what caused the ice? The Villagemaintains that plaintiff has presented an insufficient factualbasis in the record to establish a material issue of fact thatwould entitle him to a judgment in his favor, namely, that there isa nexus between the snow and the ice. See Romano v. Morrisroe, 326Ill. App. 3d 26, 28 (2001). In ruling on a motion for summaryjudgment, the court is required to construe all evidentiarymaterial strictly against the movant and liberally in favor of thenonmovant. Tolve v. Ogden Chrysler Plymouth, Inc., 324 Ill. App.3d 485, 489 (2001). Plaintiff insists that he has established thatthere is a nexus between the pile of snow that the Village plowedand the ice upon which he slipped. See Crane v. Triangle Plaza,Inc., 228 Ill. App. 3d 325, 331 (1992). He, therefore, argues thatthe ice was an unnatural accumulation.

Before we get to this analysis, we will set forth a propertyowner's duty generally. A property owner has no duty to remove a natural accumulation of snow and ice from his property; however, aproperty owner who voluntarily undertakes the removal of snow andice can be subjected to liability where the removal results in an unnatural accumulation of snow or ice that causes injury to aplaintiff. Nowak v. Coghill, 296 Ill. App. 3d 886, 893 (1998). Inthe present case, the Village of Lake Villa owned the property where plaintiff slipped, and it undertook to remove snow and icefrom that property.

A mound of snow created by a municipality's snow-removalefforts is properly considered an unnatural accumulation. Ziencinav. County of Cook, 188 Ill. 2d 1, 13 (1999). McCollum testified inhis deposition that he and other Village employees plowed theparking lot and piled the snow on the curbings. The photographs depict some of the piled snow on the pavers. We determine thatplaintiff has raised a genuine issue of material fact as to whetherthe snow pile was an unnatural accumulation. It is plaintiff'scontention that the logical inferences to be drawn from hisevidence are that snow melted off the mound, puddled, and refroze,forming the ice patch that caused plaintiff to slip. Theseinferences are buttressed by McCollum's testimony that he was awarethat snow could melt and form ice when it refroze. Plaintiffreasons that, since the mound of snow was an unnatural accumulationput there by employees of the Village, the ice was an unnaturalaccumulation as well. In response, defendant argues that plaintiffdid not establish the ice's origin.

Plaintiff relies on the Appellate Court, Fifth District, caseof Johnson v. National Super Markets, Inc., 257 Ill. App. 3d 1011(1994). In that case the plaintiff was injured when she fell on anice-encrusted puddle of water in a grocery store parking lot. Theevidence presented to the jury was that snow in the parking lot hadbeen plowed and piled 10 to 15 feet high around the light posts. When the plaintiff got out of her car to go into the store, she sawthat water in the puddle was coming from a mound of snow heapedagainst a nearby light post. Johnson, 257 Ill. App. 3d at 1012. By the time she left the store and returned to her car, the ice hadformed over the puddle. The plaintiff's mother testified thatwater was streaming from the snow into the puddle. Johnson, 257Ill. App. 3d at 1013. The private contractor who plowed the snowtestified that the grade of the parking lot sloped down toward thebuilding and the safest place to pile the snow would have been atthe sides of the building, where it would drain into the back ofthe property rather than collecting in the parking lot. The storeowner, however, instructed him not to pile the snow at the sides ofthe building. Johnson, 257 Ill. App. 3d at 1014. The juryreturned a verdict in the plaintiff's favor, and the defendantappealed from the trial court's denial of its motion for judgmentnotwithstanding the verdict and its motion for a new trial. Theappellate court held that the jury properly could have determinedthat the icy puddle in which the plaintiff fell was the product ofan unnatural accumulation of ice caused by water running off snowfrom the banks onto the parking lot and refreezing. Johnson, 257Ill. App. 3d at 1016.

Plaintiff in the present case contends that his own depositiontestimony, the deposition testimony of Glen McCollum, and thephotographs of the scene bring this case within the rule announcedin Johnson.

Defendant attempts to distinguish Johnson and relies insteadon Crane v. Triangle Plaza, Inc., 228 Ill. App. 3d 325 (1992), and Gilberg v. Toys "R" Us, Inc., 126 Ill. App. 3d 554 (1984). InCrane, the plaintiff fell on an ice patch in the commuter parkinglot of the West Chicago train station and was injured. It was agravel parking lot with depressions containing ice. The day before her fall there were areas of packed snow, melted snow, and puddles of water in the parking lot. The snow was an unnaturalaccumulation caused by plowing. The only evidence in the recordregarding a connection between the snow and the ice in thedepression in which the plaintiff fell was her deposition testimony that she was "99 and 99/100%" sure that the snow melted, collected in the depression area, and froze. Crane, 228 Ill. App. 3d at 330. There, the trial court granted summary judgment in favor of thedefendant. On appeal we held that the plaintiff's testimony wasnot enough to raise a genuine issue of material fact as to whetherthe ice was created by the unnatural accumulation of snow. Crane,228 Ill. App. 3d at 331.

Gilberg rose to the appellate court from the trial court'sgrant of summary judgment to the defendant parking lot owner. Theplaintiff there fell on ice in a depression in the lot. The otherevidence showed that it had not snowed in the previous 24 hours and that there was a natural accumulation of snow; there was, however, nothing in the record to connect the natural accumulation of snowto the ice. The appellate court held that the plaintiff had theburden at the summary judgment stage to present facts indicatingthat the ice patch was other than a natural accumulation. Gilberg,126 Ill. App. 3d at 558.

All of the above cases acknowledge that (1) where the snowmound is an unnatural accumulation and (2) water melts from such asnow mound and refreezes, the resulting ice is also an unnaturalaccumulation.

To the extent that defendant relies on Riccitelli v. Sternfeld,1 Ill. 2d 133 (1953), and Ziencina v. County of Cook, 188 Ill. 2d1 (1999), for the opposite conclusion, its reliance is misplaced. In Riccitelli, the landowners were absolved from liability becausethe plaintiff could not prove that the lump of ice that caused herto fall was formed from snow they had banked in their snow-removalefforts; and Ziencina did not involve a slip on ice, but a snowmound that obstructed the plaintiff's view of an intersection.

It is the plaintiff's burden to present facts indicating a"direct link" between the snow pile and the ice. See Madeo v. Tri-Land Properties, Inc., 239 Ill. App. 3d 288, 294 (1992). Webelieve that plaintiff in the present case has presented facts thatindicate such a direct link. The ice surrounded the base of thesnow pile and was contiguous with it and appeared to have come fromwater that melted off the snow. Plaintiff testified that the dayswere warm and the nights were below freezing. He described the icewhere he slipped as clear, smooth, and transparent. He recalled norecent precipitation. McCollum stated that the snow mound was notfrom a new snow event and it appeared to have melted and refrozen,causing the ice patch.

Defendant now objects that the photographs do not accuratelydepict the scene because they were taken the day after plaintiff'sinjury. Defendant did not move to strike the photographs fromplaintiff's response to the motion for summary judgment. Moreover,plaintiff testified that the ice patch upon which he slipped wasthe same approximate size as that depicted in the photographs. Defendant characterizes the testimony as assumptions and opinions. However, the court in Johnson emphasized that it is within thecommon knowledge of a person to know what the temperature is on aparticular day and that water can melt, freeze, or refreezedepending on the temperature at any given time. Johnson, 257 Ill.App. 3d at 1016. Thus, McCollum was not speculating when he described what he saw in the photograph and when he testified tohis general knowledge that piled snow could melt and refreeze. Itis true that in Johnson there was eyewitness testimony to themelting snow running along the pavement to the puddle and in thiscase there are no eyewitnesses. At this stage plaintiff isrequired to show only facts that indicate a nexus between the snowand the ice. This he has done.

Defendant suggests that the evidence was that Metra might havecaused the snow pile. When asked if the snow mound could be acombination of the Village's snow plowing activities and Metra's, McCollum replied, "It could be because I don't watch Metra do their job so I don't know." McCollum's response was complete speculation based upon no evidence and did not refute plaintiff's evidence thatthe Village plowed the snow and placed it in the pile over thecurbings.

Plaintiff next contends that, in the alternative, if the mound of snow was a natural accumulation, the Village voluntarilyundertook a duty to keep the walkways free from ice and snow. Because we hold that the snow pile was an unnatural accumulation,we need not consider this argument.

To support its motion for summary judgment, defendant raisesfor the first time in this appeal the argument that the Village hadno notice of the condition and cites section 3--102 of the LocalGovernmental and Governmental Employees Tort Immunity Act (745ILCS 10/3--102 (West 2000)). Plaintiff urges that defendant haswaived this issue. As a general rule, questions not raised in thetrial court are deemed waived and may not be raised for the firsttime on appeal. In re Marriage of Webb, 331 Ill. App. 3d 1104,1107 (2002). While this is the rule insofar as the appellant isconcerned, the appellee may defend the judgment on appeal, or urgeany point in support of said judgment, so long as the factual basisfor the determination of such point was before the trial court. Jensen Disposal Co. v. Town of Warren, 218 Ill. App. 3d 483, 487(1991). Defendant raised this issue as its second affirmativedefense in its answer to the complaint. The issue was thereforebefore the trial court.

It is the plaintiff's burden to prove that the Village hadnotice of the defect. Rios v. City of Chicago, 331 Ill. App. 3d763, 769. In support of its position, the Village relies onsubsection (b)(2) of the above-cited statute (745 ILCS 10/3--102(b)(2) (West 2000)), which provides as follows:

"(b) A public entity does not have constructive notice ofa condition of its property that is not reasonably safe within the meaning of Section 3--102 (a) if it establishes ***

(2) The public entity maintained and operated such an inspection system with due care and did not discover the condition."

Without citation to any authority, defendant argues that itdid not have constructive notice of the ice because McColluminspected the train station every morning and did not discover theice. Failure to cite relevant authority is in violation of SupremeCourt Rule 341 and results in waiver of the issue on appeal. 188Ill. 2d R. 341(e)(7). However, because we remand this cause to thecircuit court for further proceedings, this issue is likely to beaddressed to the trial court again. For that reason we willdiscuss it on its merits.

Plaintiff replies that whether defendant had notice is aquestion of fact for a jury to determine. We agree. See Coultas v. City of Winchester, 208 Ill. App. 3d 238, 240-41 (1991). McCollum testified that he was aware of the hazard posed by plowedsnow melting and refreezing. Given this awareness, plaintiff haspresented sufficient evidence to raise a genuine issue of materialfact as to whether the Village had constructive notice, and theissue is one for a jury to decide.

For the foregoing reasons, the judgment of the circuit courtof Lake County is reversed, and the cause is remanded for furtherproceedings consistent with this opinion.

Reversed and remanded.

McLAREN and BYRNE, JJ., concur.