by W. Anthony Andrews (Spring 2016)

The quest for uniform judicial interpretation of the Snow and Ice Removal Act (“Act”) continues after a recent Illinois Appellate Court decision. The Snow and Ice Removal Act immunizes residential homeowners from liability for injuries caused by snow or ice the homeowner has attempted to remove. (745 ILCS 75/1)
In Murphy-Hylton v. Lieberman Management Services, Inc., 2015 IL App (1st) 142804, a condominium resident slipped and fell on ice. Rather than alleging the negligent removal of snow and ice, she alleged that the grounds and sidewalks were negligently maintained. The court concluded that the resident’s complaint did not fall under the Act. As such, the condominium and management company faced the possibility of liability.
The Act encourages owners and those residing in residential units to remove snow and ice from the sidewalk. The legislature made clear that “except for acts which amount to clear wrongdoing,” it is “undesirable” to find someone liable if efforts were taken to remove snow and ice from sidewalks. (745 ILCS 75/1) The Act clarifies that anyone who removes or attempts to remove snow and ice is not liable for injuries from his acts or omissions “unless the alleged misconduct was willful or wanton.” (745 ILCS 75/2)
In Murphy-Hylton, the First Circuit focused on whether the Act extends immunity only to those who attempt to remove natural accumulations of ice and snow “or instead applies to anyone whose defective property, whether because of factors such as negligent landscaping or design, creates an unnatural accumulation of ice or snow which causes injury.” Murphy-Hylton’s complaint focused on the fact that there were areas on the sidewalk where water from the downspouts would collect and freeze. This, she argued, allowed for an unnatural accumulation of ice, which caused her to slip and fall.
Murphy-Hylton relied on a Fourth Circuit case, Greene v. Wood River Trust, 2013 IL App (4th) 130036, where a plaintiff alleged that the lack of maintenance of various downspouts and gutters caused an unnatural accumulation of ice, which she claimed caused her fall. The court held that the “plain language of the Act does not provide immunity for injuries if the unnatural accumulation of ice was caused by defective construction or improper or insufficient maintenance of the premises, and not by snow and removal efforts.”
The condominium owner relied on a case from Illinois’ Second Circuit, Ryan v. Glen Ellyn Raintree Condominium Association, 2014 IL App (2d) 130682. The plaintiff in Ryan alleged negligence based on defective property maintenance, stating that she slipped on a patch of ice that formed when water dripped from an awning. While the plaintiff in Greene alleged negligence based on defective maintenance, the plaintiff in Ryan alleged that the defendants failed to correct a design flaw in the awning and voluntarily undertook to remove snow and ice, but failed to clear the patch upon which she slipped. The court in Ryan concluded that “as plaintiff attributes her fall to the consequences of defendants’ failed snow and ice removal efforts,” the Act applied to her claim, immunizing the condominium complex from liability.

On appeal, Murphy-Hylton recognized that there was an appearance of a split within the appellate courts. The court, however, believed that when taken together, “Greene and Ryan both reach the same conclusion, namely, that allegations of negligence in a defendant’s snow and ice removal efforts are required in order to trigger immunity under the Act.”

Ultimately the court agreed with Greene and held that the Act, and thus immunity, does not apply to cases where the plaintiff’s complaint is silent to negligent snow removal efforts but is grounded in allegations that defendants negligently maintained or constructed their premises. Additionally, the court noted that in not alleging, via act or omissions, negligent snow or ice removal, there was nothing in Murphy-Hylton’s complaint to bring the case within the scope of the Act. In fact, the court believed this issue to be dispositive.

Therefore, the court determined that the language of the Act requires that the snow or ice which causes a plaintiff’s injuries “must be the result of the acts or omissions in defendants’ actual snow removal efforts.” Further, the court noted that it was “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.”

Additionally, the court believed that Ryan was inconsistent with the Act’s language and intent when it seemed to suggest that merely contracting for snow or ice removal satisfies the requirement for immunity under the Act. The court said, “[t]he legislature did not intend to encourage people to merely contract for the cleaning of sidewalks. . . . [I]t is far more reasonable to deduce that the legislature intended immunity apply to one who engages in proactive, actual conduct as opposed to one who passively enters into a contract for snow or ice removal services.” Property owners should be on notice: entering into a contract for snow removal may not be enough to prevent liability.

Murphy-Hylton should also serve as a warning to those in charge of maintaining residential property. When someone is injured because of a natural accumulation of ice, he or she can often structure his or her complaint in a way that precludes landowner immunity. While the court in Murphy-Hylton noted that there actually was no circuit split on this issue, the Illinois Supreme Court has yet to weigh in. Until the Illinois Supreme Court does, property owners should be wary of the increased possibility of litigation stemming from snow and ice-related falls.