by Michael Castaldo, III (Fall 2019)

When a patron slips on ice in a parking lot, they cannot typically turn to the plow vendor for recovery even when the lot owner is not held liable.

In Jordan v. Kroger Co., 2018 IL App (1st) 180582, plaintiff Sharon Jordan was injured when she slipped and fell on “black ice” when approaching a grocery store owned by defendant Food 4 Less.    Food 4 Less had a contract with Cherry Logistics which in turn had a contract with Pete’s Lawn Care to provide snow and ice removal on the premises. Jordan was not aware of either contract at the time of her fall and admitted that she had never heard of either company prior to the incident.

Food 4 Less’s contract with Cherry Logistics provided that Cherry would monitor weather conditions and “act reasonably” in determining when to apply de-icer to the store’s property. In turn, Cherry’s contract with Pete’s Lawn Care provided part that “[s]alting will commence once ice builds up or slippery conditions exist on pavement” and “[Pete’s Lawn Care] shall monitor the location for any patches of ice, any thaw and re-freeze, and shall apply ice melting agent in sufficient quantities to keep all Areas clear and safe.”

According to weather reports submitted by Jordan, there was light precipitation on the day before the accident. The morning of the accident it began to rain, which turned to a light snow as temperatures dropped. It was undisputed that Pete’s Lawn Care did not actually perform any snow or ice removal services for Food 4 Less in the days prior to the event.

Jordan brought suit against both Food 4 Less and Pere’s Lawn Care. In her amended complaint, she alleged that defendants were negligent in monitoring weather conditions to determine whether snow and ice removal services were required, and they were also negligent in removing snow and ice from access ramps on the property.

Defendants both moved for summary judgment, arguing that: (i) since Pete’s Lawn Care provided no ice removal services prior to Jordan’s fall, it could not have created or aggravated unnatural accumulation of ice; (ii) as a matter of law, defendants had no duty to remove natural accumulations of ice from the property; and (iii) defendants did not have actual or constructive notice of the ice prior to Jordan’s fall.

In her response, Jordan argued that “the contract between the Defendants created a duty to remove ALL ice in the parking lot consistent with the language of the contract.”

The trial court granted defendants’ motion for summary judgment, finding that defendants had no actual or constructive notice of snow or ice; nor had they breached any contractual duty.

Jordan then appealed, arguing that the trial court erred in granting summary judgment to defendants because defendants voluntarily undertook a duty to remove natural accumulations of ice outside the Food 4 Less store.

On appeal, the reviewing court reiterated that a defendant who undertakes to remove natural accumulations of snow and ice is subject to the reasonable care standard. The court noted that in such a case, the defendant’s tort liability to third parties is governed by Section 324A of the Restatement (Second) of Torts, which provides:

“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 his failure to exercise reasonable care to protect his undertaking, if

a) His failure to exercise reasonable care increases the risk of such harm, or

b) He has undertaken to perform a duty owed by the other to the third person,  or

c) The harm is suffered because of reliance of the other or the third person    upon the undertaking.” Restatement (Second) of Torts §324A (1965).).

The appellate court found that subsection (a) did not apply because Jordan did not claim that defendants increased the risk of harm from slip-and-fall accidents; nor did subsection (b) apply because there is no general duty to remove natural accumulations of snow. This left only subsection (c): reliance; but Jordan did not claim that she personally relied on the set of snow removal contracts. On the contrary, she admitted in her deposition that she had never heard of either Cherry Logistics or Pete’s Lawn Care.

The court then wrestled with the question of whether a party who contracts to remove snow and ice, and then fails to do so, could be held liable under Section 324A(c) to third parties who are injured by natural accumulations of snow and ice.

When looking to other cases for guidance, the court noted that Illinois courts are split as to whether the natural accumulation rule should preclude recovery. However, despite a few distinct instances, Illinois courts typically reject the argument that the existence of a snow removal contract overrides the natural accumulation rule. In fact, the Illinois Supreme Court reaffirmed the importance of the natural accumulation rule in a recent case, Krywin v. Chicago Transit Authority, 238 Ill.2d 215, 233 (2010) (imposing an obligation to remove natural accumulations of snow and ice would be “unreasonable and impractical”).

In light of this, the court was persuaded by the previous rulings which found that merely entering into a snow removal contract does not create in the contracting parties a duty to protect third parties from natural accumulations of snow and ice, at least where the third parties did not personally rely on the contract.

In this case, Jordan did not present evidence that the ice on which she fell was an unnatural accumulation which would be required to recover under her theory of negligence. Jordan also did not present any evidence that she relied upon snow removal contracts. As such, the court found the trial court properly granted summary judgement to defendants.

In conclusion, the court stressed that allowing injured visitors to sue third-party snow removal contractors would serve to discourage: (i) landowners from arranging for the removal of natural accumulations of snow and ice; and (ii) contractors from agreeing to provide such services. Neither are desirable.