Written and reviewed by Peter Zneimer, Zneimer & Zneimer P.C.
You go to Jimmy’s Market to buy some groceries at 3:00 pm in the afternoon. That morning it had snowed 5 inches and then began to melt. You park your car and when you near the entrance of the store you slip on ice and snow on the walk way that had not been cleared and fall on the ground and break your arm. Pete’s Market had a contract with Frank’s Snow Removal company to promptly clear ice and snow for Pete’s Market after any snow storm. Frank’s Snow Removal Service failed to show up that day to remove the snow. Under these facts, is there any possible liability against Pete’s Market and/or Frank’s Snow Removal Service? This is a common fact pattern that the personal injury lawyers of Zneimer & Zneimer P.C. encounter.
Under the “natural accumulation rule” in Illinois, property owners have no duty to remove natural accumulations of snow and ice from their property. The rational is that since winters in Chicago can be harsh, especially in Chicago, imposing a duty on property owners to remove natural accumulations of of snow and ice would be unreasonable and unpractical. To win a slip-and-fall case involving ice or snow, the plaintiff typically must show that (1) the accumulation of snow and ice was unnatural and (2) the defendant had actual or constructive notice of the condition.
Applying this rule to our above example, Jimmy’s Market most likely has no liability. But what about Frank’s Snow Removal Service? Can Frank’s Snow Removal Service be held liable for the broken arm if it had a contract with Jimmy’s Market to clear the ice and snow and failed to do so? Two recent Illinois cases considered this exact issue and two Illinois Appellate Court Judges reached opposite conclusions. In the 2018 case of Jordan v. The Kroger Co. and Pete’s Lawn Care, Inc. the Appellate Court was asked to decide whether a plaintiff who slips and falls on ice and snow can bring an action against the snow removal company as a third party beneficiary of the contract between the snow removal company and the property owner. In Jordan, the Plaintiff argued that the snow removal company voluntarily assumed a contractual duty to remove natural accumulations of ice, and therefore, maybe held liable in tort to third parties for negligently performing on the contract. In support of this position the Plaintiff cited Section 324 A of the Restatement (Second) of Torts which states:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person for physical harm resulting from the failure to exercise reasonable care to protect his undertaking if …(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
The Jordan Court was not persuaded by the Plaintiff’s arguments and after reviewing the relevant case law ruled that entering into a snow removal contract does not create in the parties to the contract a duty to protect third parties from natural accumulations of snow and ice. Thus, the “natural accumulation” rule still applies and snow removal company was found to have no liability.
Only a year later, in the case of Mickens v. CPS Chicago Parking, LLC, Illinois Appellate Court was again faced with the issue of whether a snow removal company can be held liable for injuries to a third party as a result of a fall on ice and snow that wasn’t cleaned. However, in this case, the Appellate Court reached the opposite conclusion. In finding that the snow removal company in this case could be liable for the Plaintiff’s injuries, the court reasoned a voluntary undertaking is based on a contractual promise and the scope of the duty is defined by the language of the contract. In the Mickens Court’s view, Section 324A imposes liability for a voluntary promises to perform services that should be inferred to be for the protection of third parties, i.e., people who are walking on the property. The Court ruled that the snow removal company’s duty to the plaintiff is defined by the terms of the snow removal contract with the property owner. Further, the “natural accumulation” rule has no application where there is a contract that defines the scope of the snow removal company’s duty to the plaintiff.
The answer to the question as to whether a snow removal company can be held liable for a slip and fall on ice and snow is there is no clear answer. The Illinois Supreme Court will need to address this issue at some point given the clear split in case authority in Illinois.
If you slip and fall on ice, call the experienced slip and fall lawyers of Zneimer & Zneimer P.C. for a free consultation.