It’s the question that is sure to surface at every cocktail party you attend this holiday season. People won’t ask you if Martha Stewart’s conviction will be reversed on appeal, or why we have an electoral college. No, the question on everyone’s lips is this: Isn’t it true that if I don’t shovel, I can’t get sued – so aren’t I better off not shoveling?
It is true in general that landowners, public and private, are not liable for failure to remove natural accumulations of snow and ice from their property.1 But the facts and holdings of the cases arising from injuries on snow and ice are as myriad as the shapes of the snowflakes in the winter’s first snowfall, so read on to ensure that the free legal advice you give at all those holiday parties is sound.
The Threshold Inquiry: What Type of Property Is It?
The Snow and Ice Removal Act2 ["Act"] offers qualified immunity to owners or occupants of residential property and their agents who make efforts to clear the sidewalks adjacent to the property. Section 2 of the Act provides:
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 sidewalks abutting the property shall not be liable for any personal injuries allegedly caused by the snowy or icy condition of the sidewalk resulting from his or her acts or omissions unless the alleged misconduct was willful or wanton.3
The Act stems from the declared public policy of the state that owners and residents be encouraged to clean the sidewalks abutting their residences, and the determination of the General Assembly that it is undesirable for any person to be found liable for damages resulting from efforts to clear the sidewalks, unless those acts amount to clear wrongdoing.4 Thus, it is unlikely that a homeowner will place himself in a worse position by shoveling his walks.
What if your town has an ordinance requiring owners to remove snow or ice from the public sidewalks in front of their property? Such an ordinance is a valid exercise of a municipality’s police power5, but the ordinance does not impose a legal duty on the property owner to clear snow and ice, and violation of the ordinance is not evidence of an owner’s negligence.6
While a property owner generally has no duty to remove a natural accumulation of snow or ice, if he voluntarily undertakes to do so, he can be subjected to liability where the removal results in an unnatural accumulation of snow or ice that causes injury to a plaintiff7, or where he aggravated a natural condition.8 The plaintiff must show that the property owner had actual or constructive notice of the condition.9 Liability can also arise if the property owner undertakes to remove snow and ice from his property and does so negligently.10
The Second District Appellate Court considered the scope of a homeowner’s duty when shoveling her driveway in Nowak v. Coghill.11 The plaintiff, a tow truck driver, alleged that he slipped and fell on an unnatural accumulation of snow which resulted from the defendant piling shoveled snow along the edge of her driveway. The plaintiff parked his tow truck in the defendant’s driveway when he went to her home to get the keys to her car, which had stalled several miles from the house. When he got out of his truck, leaving it running, he stepped in a pile of snow. As he took the keys from the defendant, the tow truck started to roll down the driveway. The plaintiff was injured in his attempt the re-enter the truck and stop it. Plaintiff argued on appeal that the defendant owed him a duty to properly remove snow and ice on the driveway, contending that the duty arose from the defendant’s voluntary undertaking to shovel the driveway and from the more general duty to provide a reasonably safe means of ingress and egress to the property.
The Appellate Court rejected the plaintiff’s theory that the defendant’s voluntary undertaking to shovel the driveway gave rise to a duty to do so in a way that the driver of any vehicle that subsequently parked on the driveway could exit the vehicle without stepping in the shoveled snow. The court held that, as a matter of public policy, it would be inappropriate to hold that a residential property owner who voluntarily undertakes to shovel his driveway must do so in a manner such that the cleared surface is wide enough so that the driver of any vehicle that parks on the driveway will not step in the shoveled snow. The court observed that such a standard would surely discourage residential property owners from shoveling their own driveways for their own purposes. The court also held that, for the same reasons, the duty to provide a safe means of ingress and egress did not extend to the limits urged by the plaintiff.
Many of the cases concerning accumulations of snow and ice arise from injuries sustained by tenants in common areas of rental properties. A landlord has no duty to remove natural accumulations of snow and ice.12 Further, a landlord’s custom of gratuitous snow removal does not give rise to a duty to continue to remove natural accumulations of snow or ice.13 However, liability may arise where the landlord has assumed a duty to remove snow and ice by contract with the tenant.14 Even where a contract exists, however, it has been held that a duty cannot be imposed where the precipitation is recent or continuous.15
The natural accumulation rule extends indoors as well. A landowner has no duty to remove snow or water tracked inside a building from natural accumulations of snow, water or ice outside.16 Nor is a business obligated to lay down additional safety mats when the floor is wet, even if it voluntarily undertook to do so in the past.17
Despite the heightened duty of care a common carrier owes to its passengers, the natural accumulation rule applies to common carriers. A common carrier has no duty to clean up natural accumulations of snow, ice and water in its stations or platforms.18 Nor are common carriers obligated to remove natural accumulations tracked into vehicles of conveyance. Requiring bus drivers to remove the slush tracked onto bus stairs by passengers would cause public transportation to come to a halt.19 Like other property owners, common carriers have no duty to warn of natural accumulations.20
Natural vs. Unnatural Accumulations
The absence of a duty to remove natural accumulations of ice and snow is not because the conditions presented by these accumulations are safe, but rather because the imposition of a duty to remedy those conditions would be unreasonable and impractical.21 This logic appears to inform many of the decisions discussing natural and unnatural accumulations.
In 1931, the Illinois Supreme Court considered the natural accumulation rule, holding that municipalities are not liable for failure to remove naturally occurring ice and snow, but that a municipality could be liable for a fall on ice formed on a public sidewalk when water overflowed from a skating rink.22 The court reasoned that the ice had formed in an artificial and unnatural way, and the city had neglected to make the condition reasonably safe.23
In Harkins v. System Parking, Inc.24, the plaintiff filed suit against the owner of the parking lot where she fell on snow and ice. The plaintiff argued that the defendant created an unnatural accumulation of ice by sprinkling salt on the ice and failing to remove the melted ice before vehicles drove on it. The plaintiff alleged that she fell on a tire rut which had re-formed from the melted ice and had been covered by snow. In affirming summary judgment for the defendant, the appellate court noted that ruts and uneven surfaces created by traffic in snow and ice are not unnatural, and cannot form the basis for liability.25 A property owner does not aggravate a natural condition by merely sprinkling salt and causing ice to melt, even though the ice may later refreeze.26
Similarly, a property owner has no liability for ruts in ice and snow on a sidewalk which are created by pedestrians, even where defendant’s employee cleared newly fallen snow and exposed the thick rutted ice below.27 The icy sidewalks are a product of a natural accumulation.28 However, where a landowner directs the plaintiff and others to walk on a particular path, and the resultant heavy use combined with alternating freezing and thawing of ice and snow caused the area to become rutted and rough, the character of the initial accumulation is changed.29 Whether the ruts and ridges constitute unnatural accumulations of ice and snow or an aggravation of a natural condition is a question for the trier of fact.30
In Riccitelli v. Sternfeld31, the defendant gas station added snow cleared from its driveways and the sidewalks adjacent to its property to the piles of snow created by the city’s snow plows. After fluctuations in temperature caused the snow to melt and refreeze on the sidewalk, the defendant put down rock salt. The plaintiff fell on a lump of ice or snow on the sidewalk, and filed suit alleging that the defendant created an artificial hazard. Illinois Supreme Court held that the defendant’s acts did not create an unnatural accumulation.
In Crane v. Triangle Plaza32, the plaintiff fell on an ice patch covered by a dusting of snow in a gravel parking lot. She testified that the day before the accident, there was no ice in the lot, but there were areas of packed snow, melted snow and puddles of water. She was "99 and 99/100%" sure that the snow melted, collected in the depressions and froze. In affirming entry of summary judgment for the defendants, the Appellate Court found that the plaintiff failed to present a factual basis in support of the assertion that the ice was created by an unnatural accumulation of snow, because there was no evidence of a nexus between the snow pile on the periphery of the lot and the ice in the depressions of the lot. The plaintiff’s testimony regarding the source of the ice was complete speculation.
In contrast, summary judgment entered for the defendant was reversed in Russell v. The Village of Lake Villa.33 The plaintiff slipped on a patch of ice in the portion of the train station that was owned and maintained by the defendant. A piled of snow plowed by the defendant’s employees was in close proximity, with ice having formed around the base of the snow mound. An employee of the defendant testified at deposition that it appeared that the ice had formed from the snow melting off the mound. The court stated that where a snow mound is an unnatural accumulation and water melts from the snow mound and refreezes, the resulting ice is also an unnatural accumulation. It is the plaintiff’s burden to present facts indicating a "direct link" between the snow pile and the ice. The court found that the plaintiff had presented facts indicating such a link.
Liability for unnatural accumulations of snow or ice is not limited to that which originally fell on the ground. If a landowner maintains a building or structure in a manner which causes water runoff in an area where the landowner should know people will walk, and the water freezes for a period of time sufficient to give the landowner notice of the dangerous condition, it is not unreasonable to hold the landowner liable for injuries caused by those unnatural accumulations of ice.34 Thus, where the plaintiff alleged facts from which a jury could that the patch of ice on which plaintiff fell came from water that dripped from melting snow on the roof of a tenant’s garage and refroze in front of the garage door, or from patches of snow left behind by plows that would melt and refreeze, there was a question of fact as to whether the tenant slipped on an unnatural accumulation of ice.
The presence of large and heavy icicles resulting from unnatural accumulations of snow or ice due to defective conditions of a building may also form the basis of a premises liability action. In McLean v. Rockford Country Club35, the plaintiff was struck by a falling icicle near the entrance of the defendant’s premises. Plaintiff brought suit alleging that the defendant was negligent in failing to provide a reasonably safe means of ingress to and egress from its premises, and alleging a defective condition which allowed an unnatural accumulation of ice and icicles above the entrance. The trial court dismissed the case, based on the belief that there was no cause of action for icicles. The Second District Appellate Court reversed, noting that the operator of a business has a duty to provide a safe means of ingress to and egress from its premises. That duty is not abrogated by the presence of a natural accumulation of ice, snow or water. Further, taking into consideration the plaintiff’s allegations of specific building defects, including an improperly pitched overhand roof, improperly hung and sized gutters and downspouts, an inadequate number of downspouts and improper drainage of the overhang roof, the court found that the plaintiff could allege a set of facts that would state a cause of action based upon the presence of defective conditions on defendant’s building that caused an unnatural accumulation of ice.
With the protection offered by the Snow and Ice Removal Act, a homeowner who shovels his walks is unlikely to be in a worse position than if he did nothing. Further, because the Act makes no distinction between natural and unnatural accumulations of snow and ice, a homeowner who has an unnatural accumulation of snow or ice on his sidewalks will be better off if he attempts to clear the accumulation. So tell your fellow partygoers they can safely fire up their snowblowers and get those walks clean.
1. Ziencina v. County of Cook, 188 Ill.2d 1, 719 N.E.2d 739 (1999).
2. 745 ILCS 75/0.1 et seq.
3. 745 ILCS 75/2.
4. 745 ILCS 75/1.
5. City of Carbondale v. Brewster, 78 Ill.2d 111, 398 N.E.2d 829 (1979).
6. Klikas v. Hanover Square Condo. Ass’n., 240 Ill.App.3d 715, 608 N.E.2d 541 (1st Dist. 1992).
7. Nowak v. Coghill, 296 Ill.App.3d 886, 893, 695 N.E.2d 532 (2d Dist. 1998).
8. Ostry v. Chateau Limited Partnership, 241 Ill.App.3d 436, 608 N.E.2d 1351 (2d Dist. 1993).
9. Ostry v. Chateau Limited Partnership, 241 Ill.App.3d 436, 608 N.E.2d 1351 (2d Dist. 1993).
10. Ostry v. Chateau Limited Partnership, 241 Ill.App.3d 436, 608 N.E.2d 1351 (2d Dist. 1993).
11. 296 Ill.App.3d 886, 695 N.E.2d 532 (2d Dist. 1998).
12. Williams v. Lincoln Tower Associates, 207 Ill.App.3d 913, 566 N.E.2d 501 (2d Dist. 1991).
13. Chisolm v. Stephens, 47 Ill.App.3d 999, 365 N.E.2d 80 (1st Dist. 1977).
14. Williams v. Lincoln Tower Associates, 207 Ill.App.3d 913, 566 N.E.2d 501 (2d Dist. 1991).
15. Williams v. Lincoln Tower Associates, 207 Ill.App.3d 913, 566 N.E.2d 501 (2d Dist. 1991).
16. Lohan v. Walgreens Company, 140 Ill.App.3d 171, 488 N.E.2d 679 (1st Dist. 1986).
17. Lohan v. Walgreens Company, 140 Ill.App.3d 171, 488 N.E.2d 679 (1st Dist. 1986).
18. Trevino v. Flash Cab Co., 272 Ill.App.3d 1022, 651 N.E.2d 723 (1st Dist. 1995).
19. Serritos v. Chicago Transit Authority, 153 Ill.App.3d 265, 505 N.E.2d 1034 (1st Dist. 1987)
20. Sheffer v. Springfield Airport Authority, 261 Ill.App.3d 151, 632 N.E.2d 1069 (4th Dist. 1994).
21. Graham v. City of Chicago, 346 Ill. 638, 178 N.E. 911 (1931); Trevino v. Flash Cab Co., 272 Ill.App.3d 1022, 651 N.E.2d 723 (1st Dist. 1995).
22. Graham v. City of Chicago, 346 Ill. 638, 178 N.E. 911 (1931)
23. Graham v. City of Chicago, 346 Ill. 638, 178 N.E. 911 (1931)
24. 186 Ill.App.3d 869, 542 N.E.2d 921 (1st Dist. 1989).
25. Harkins v. System Parking, Inc., 186 Ill.App.3d 869, 542 N.E.2d 921 (1st Dist. 1989)
26. Harkins v. System Parking, Inc., 186 Ill.App.3d 869, 542 N.E.2d 921 (1st Dist. 1989)
27. Erasmus v. Chicago Housing Authority, 86 Ill.App.3d 142, 407 N.E.2d 1031 (1st Dist. 1980).
28. Erasmus v. Chicago Housing Authority, 86 Ill.App.3d 142, 407 N.E.2d 1031 (1st Dist. 1980).
29. Endsley v. Harrisburg Medical Center, 209 Ill.App.3d 908 568 N.E.2d 470 (5th Dist. 1991).
30. Endsley v. Harrisburg Medical Center, 209 Ill.App.3d 908 568 N.E.2d 470 (5th Dist. 1991).
31. 1 Ill.2d 133, 115 N.E.2d 288 (1953).
32. 228 Ill.App.3d 325, 591 N.E.2d 936 (2d Dist. 1992).
33. 335 Ill.App.3d 990, 782 N.E.2d 906 (2d Dist. 2002).
34. Ordman v. Dacon Management Corp., 261 Ill.App.3d 275, 633 N.E.2d 1307 (3d Dist. 1994).
35. __ Ill.App.3d __, __ N.E.2d __ (2d Dist. 2004).
Anne O’Brien is a 1988 graduate of the University of Illinois, Urbana-Champaign, and a 1991 graduate of Franklin Pierce Law Center, Concord, NH. She has a general practice in Naperville concentrated in civil litigation and real estate. She is fortunate to have a husband who does the shoveling.