The Illinois Snow and Ice Removal Act – Should you shovel your sidewalks?
By Dexter J. Evans
As we set to embark on another Chicago winter, one of the most misunderstood concepts is whether a residential property owner has a duty to remove natural or unnatural accumulations of ice and/or snow from their sidewalks, driveways, and stoops. This article will attempt to clear the air regarding what duties, if any, an owner of residential property has to remove snow and ice from their property. This article will not address the question of what duties a commercial property owner has to remove natural and unnatural accumulations of ice and/or snow as that area of the law can encompass an entire article on its own.
Does a residential property owner have a duty to remove snow and/or ice from their property? It may come as a surprise to some that generally the answer is no. Owners of residential property do not have a duty to remove snow and ice from their premises. In fact, Illinois law goes even further. Not only does a residential property owner not have a duty to remove snow and ice from their property, they also are immune from negligently attempting to do so.
The Illinois Snow and Ice Removal Act
The Illinois Snow and Ice Removal Act governs to what extent a residential property owner has a duty to remove snow and/or ice from their property and states as follows:
It is declared to be the public policy of this State that owners and others residing in residential units be encouraged to clean the sidewalks abutting their residences of snow and ice. The General Assembly, therefore, determines that it is undesirable for any person to be found liable for damages due to his or her efforts in the removal of snow or ice from such sidewalks, except for acts which amount to clear wrongdoing, as described in Section 2 of this Act.1
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.2
In essence, if a residential property owner fails to remove snow and ice from the sidewalk (or does so negligently), a person who slips and falls on the sidewalk cannot prevail against the residential property owner unless he or she can prove willful and wanton misconduct. How difficult is it to show willful and wanton misconduct in the removal or failure to remove snow and ice? This author could not locate one appellate court case where such behavior was found.
The Act does not just speak to single family homes. It applies to apartment buildings, townhomes, and condominiums as well. Additionally, the Act does not just protect the “owners” of residential property. Indeed, the Act also provides the same immunity to any “lessor, occupant or other person engaged by any such party who removes or attempts to remove snow and ice…”3 Furthermore, the Act also protects “agents” of the property owner. Naturally, this would seem to include the friendly neighbor who decided to clear your sidewalk of snow and ice. By extension, it would also include the snow and ice removal contractor you hired to clear your property.
Why enact a law so protective of residential property owners? The declared reason in the statue offers guidance. The state of Illinois wanted to encourage residential property owners to clear sidewalks abutting their property. If there was a possibility of being held liable for an injury that occurred because the owner did not completely clear the sidewalk of snow or ice, it is a fair presumption that most people would simply do nothing. In looking at the cost-benefit analysis under such a system, more people would conceivably be hurt by a property owner’s failure to do anything versus just not doing a good enough job. It is akin to the reason why a post-remedial measure is not admissible to prove negligent conduct. If you could, no one would ever fix a defect on their premises. This author also is not naïve and realizes that it’s a pretty good bet that the persons responsible for enacting the law were owners of residential property themselves.
What is considered a “sidewalk abutting the property” under the Act?
This may seem like an odd question, but exactly what is the definition of a “sidewalk” under the Act? Perhaps unsurprisingly, most of the relevant case law comes out of the Second District.
In Yu v. Kobayashi,4 the Second District was confronted with the question of whether a paved area (stoop) between the door to an apartment building and parking lot was considered a “sidewalk abutting the property” under the Act.5 The court held that it was, noting that:
[C]ommon sense dictates that, if part of the paved area between the stoop and the parking lot is the sidewalk, all of the paved strip is the sidewalk. Any distinction here between the stoop and the rest of the sidewalk is arbitrary.6
The Second District further clarified whether a “stoop” was a sidewalk under the Act almost ten years later in Kurczak v. Cornwell.7 In Kurczak, plaintiff was injured when he slipped on ice present on the stoop of defendant’s home.8 Plaintiff contended that the ice had formed due to a defective gutter that had leaked onto the stoop.9 In finding that a stoop fit into the definition of a sidewalk abutting the property under the Act, the court looked into the literal definition of sidewalk which was “a walk for foot passengers usually at the side of a street or roadway; a foot pavement.”10 Defining sidewalk broadly under the Act, the court stated:
We note that it is common for a residence to have a paved walkway or “sidewalk” that leads from a driveway and/or public sidewalk to the residence. The word “sidewalk,” taken in its ordinary meaning, encompasses all of these “foot pavements” leading to and from the residence. Absent a distinction drawn by the legislature that limits the term “sidewalk” to only public or municipal sidewalks, we must afford “sidewalk” its plain and ordinary meaning.11
The court also held that defendant’s conduct did not rise to the level of willful and wanton misconduct as required by the Act. First, there was evidence that defendant had at least tried to remove the snow and ice by shoveling and throwing salt down prior to plaintiff’s fall.12 Additionally, there was no evidence that defendant’s gutter system was defective or that it even was the cause of the ice in question.13 Regardless, it is questionable whether the court would have found such behavior to rise above mere negligence if any of that were true.
As one would expect, driveways became the next topic of discussion amongst both the First District and Second District in determining whether they too were “sidewalks” under the Act, albeit with different outcomes.
The First District was the first to tackle the question in Flight v. American Community Management, Inc.14 In Flight, the plaintiff slipped and fell on ice present on the driveway of his condominium.15 He alleged that defendants allowed a snowy and/or icy area to exist on his only pathway to his residence and also failed to apply any de-icing agent to keep the area from freezing.16 Plaintiff contended that the Act did not apply to his driveway since it is defined as a road “for driving on” whereas a sidewalk is defined as a “paved walkway” or “path for pedestrians”.17 The court was unpersuaded by plaintiff’s argument primarily because he was using the driveway as a walkway when he fell.18 Citing the Second District’s decisions in Yu and Kurczak, the court determined that the driveway was “sufficiently akin” to a “traditional sidewalk” under the Act.19
Conversely, the Second District took the opposite approach when confronted with the question of whether a driveway was a sidewalk in Gallagher v. Union Square Condo. Homeowner’s Ass’n.20 Finding the First District’s holding in Flight to be “contrary to the plain language of the Act,” the court held that a driveway was not akin to a sidewalk.21 First, the court scrutinized the two very different definitions of a sidewalk and driveway.22 Utilizing the definition of a sidewalk used in Kurczak, the court distinguished it from a driveway which was “commonly understood to be a surface on which one drives motor vehicles from a street to a private building…”23 Furthermore, because the Act was in derogation of common law liability for the creation of unnatural accumulations, the court felt compelled to strictly construe the definition of sidewalk under the Act.24 The court also did not find its decision in conflict with its prior decisions in Yu and Kurczak because, in those cases, the court did not conclude that stoops and paved walkways were “sufficiently akin” to a sidewalk.25 Rather, the court determined that the walking surfaces in those cases were “actual sidewalks under the plain meaning of the term.”26
Applying the same principles as the Second District in Gallagher, the First District recently held that a parking area or lot was not a “sidewalk” that abuts residential property under the Act. In Hussey v. Chase Manor Condo. Ass’n,27 plaintiff was injured when she slipped and fell on ice in the rear parking area of her condominium.28 Like the court in Gallagher, the court in Hussey criticized the Flight court’s failure to engage in a strict construction of the Act.29 The court found the fact that unit owners would customarily walk to reach the rear of the condominium building to be unpersuasive.30 If simply walking on a surface turned it into a sidewalk, “then every residential parking lot in the state of Illinois would be a ‘sidewalk.’”31
The Exceptions
If a slip and fall on snow or ice occurs on a sidewalk which abuts the property, the question then becomes whether there are any exceptions to the general immunity provided by the Act. Other than by showing defendant’s conduct was willful and wanton (an almost impossible standard to meet), the First District’s decision in Murphy-Hylton v. Lieberman Management Services, Inc.32 offers some guidance. In Murphy-Hylton, plaintiff was injured when she slipped and fell on a sidewalk outside of her apartment building.33 Plaintiff’s complaint was premised on a design defect of the property wherein drainage from the downspouts ended up placing water onto the sidewalk.34 Her complaint was absent any allegation regarding snow or ice removal efforts.35
In determining that the Act did not apply, the court looked at two cases with very different results for direction. In Greene v. Wood River Trust,36 plaintiff slipped and fell near an icy entrance to her residence.37 She alleged that her fall was due to a defective and improperly maintained roof, overhang, gutters, and downspouts.38 Like the plaintiff in Murpy-Hylton, plaintiff did not allege negligent snow or ice removal efforts.39 The Second District held that the plain language of the Act did not provide immunity for injuries suffered due to design defects or improper maintenance of the premises.40 The court came to this conclusion because to bar such an action would abrogate the common-law duty to prevent unnatural accumulations of ice and/or snow due to design deficiencies.41
The Second District reached the opposite result a year later in Ryan v. Glen Ellyn Raintree Condominium Ass’n.42 In Ryan, plaintiff alleged injury from a slip and fall due to both a defective design and ineffective snow and ice removal efforts.43 The Second District surprisingly concluded that “an owner or property with a myriad of defects that promote unnatural accumulations of snow or ice can avoid liability as long as the owner clears or neutralizes such accumulations before they cause injury.”44 In essence, because the last act or omission, what the court characterized as “immediate negligence,” was the negligent snow and ice removal efforts, plaintiff’s claim was barred by the Act.45
The First District found the plaintiff’s injury in Murphy-Hylton to be more akin to the Greene case since plaintiff did not allege negligent snow and ice removal efforts which would trigger the immunity afforded by the Act.46 Furthermore, the court took exception with the Second District’s “immediate negligence” standard created by it in Ryan, stating:
We disagree with the Ryan decision for numerous reasons. First, we question the Ryan’s [sic] use of the term “immediate negligence” because we can find no basis in Illinois law for such a concept…[t]he court reasoned that an owner whose defective property caused an unnatural accumulation could always avoid liability “as long as the owner clears or neutralizes accumulations before they cause injury.” However, we do not find this proposition to be sound logic or consistent with the legislature’s intent…[w]e find it contrary to the spirit of the Act to assume that it was intended to protect property owners who negligently maintain, construct, or design their premises.47
Conclusion
It is clear that the Act bars any claims due to slip and falls on a natural accumulation of snow or ice which occur on sidewalks, stoops, and walkways which abut residential property. Additionally, the Act also bars a slip and fall due to an unnatural accumulation on said walkways due to negligent snow and ice removal efforts. Whether the Act extends to driveways currently depends on which district your case is in. For personal injury practitioners trying to avoid the immunity provided by the Act, you must find some design defect on the property that created an unnatural accumulation of snow and/or ice. Furthermore, using the Murphy-Hylton court’s reasoning as guidance, it is probably a good idea to omit any allegations vis a vis negligent snow and/or ice removal.
1. 745 ILCS 75/1.
2. 745 ILCS 75/2.
3. Id.
4. 281 Ill.App.3d 489 (2d Dist. 1996).
5. Id. at 491.
6. Id. at 493.
7. 359 Ill.App.3d 1051 (2005).
8. Id. at 1055.
9. Id. at 1053.
10. Id. at 1057.
11. Id.
12. Id. at 1061.
13. Id. at 1061-62.
14. 384 Ill.App.3d 540 (2008).
15. Id. at 541.
16. Id. at 542.
17. Id. at 544.
18. Id.
19. Id. at 545.
20. 397 Ill.App.3d 1037 (2d Dist. 2010).
21. Id. at 1045.
22. Id. at 1042.
23. Id.
24. Id. at 1043-44.
25. Id. at 1046.
26. Id.
27. 2018 IL App (1st) 170437.
28. Id. ¶ 37.
29. Id. ¶ 35.
30. Id. ¶ 37-38.
31. Id. ¶ 38.
32. 2015 IL App (1st) 142804.
33. Id. ¶ 4.
34. Id. ¶ 5.
35. Id. ¶ 1.
36. 2013 IL App (4th) 130036.
37. Id. ¶ 4.
38. Id.
39. Id.
40. Id. ¶ 23.
41. Id. ¶ 19.
42. 2014 IL App (2d) 130682.
43. Id. ¶ 3.
44. Id. ¶ 12.
45. Id. ¶ 43.
46. Id. ¶ 43.
47. Id. ¶ 44.
Dexter Evans is an equity partner at Woodruff Johnson & Evans where he focuses his practice on personal injury litigation. He is a member of the Million Dollar Advocates Forum. He is a current member of the DCBA Brief Editorial Board and earned his J.D. from Northern Illinois College of Law where he graduated magna cum laude in 2005.