Tag Archives: Snow and Ice

Egan v. McCullough – Trial court did not err in refusing an instruction that at least one of the drivers was negligent in death of passengers

Egan v. McCullough, 2013 IL App (1st) 122475 (Hyman)

Facts:  The executors of the estates of three women killed when they were passengers in a car that collided with a truck on an icy road filed wrongful death claims against both the driver of the vehicle and the driver of the truck (and his employer and affiliates) alleging that both drivers were traveling too fast for conditions and that the truck driver should have not have veered to the right prior to the collision.  Prior to trial, the plaintiff presented a motion in limine that sought to bar any argument or reference that anything other than the alleged negligence of the defendants caused or contributed to cause plaintiffs’ injuries, which was not objected to by the defendants and granted.  At trial, the evidence revealed that the roads were “icy, slushy, slippery, treacherous” and both of the drivers were traveling below the posted speed limit.  The driver of the car lost control of her vehicle on the ice and began to fishtail and cross over the center line and into the truck’s path of travel.  In response to this, the truck driver began to slow his vehicle in a controlled braking and also veered to the right into a field.  The car continued to cross into the oncoming lanes and also veered into the field where the car and truck ultimately collided.  The three passengers in the vehicle were killed as a result of injuries sustained in the collision.  The plaintiff presented an expert witness that was critical of the truck driver for traveling too fast for conditions and opined that had he been traveling 30 mph, which was 25 mph below the posted speed limit, he would have been able to stop his truck without colliding with the plaintiff.  The plaintiff also presented 3 animations showing various fact patterns, including a theory that if the truck driver had stayed in his lane and not veered to the right, the truck would have just missed colliding with the vehicle as it crossed over the oncoming lanes.  The plaintiff’s expert conceded on cross examination that the vehicle code does not require trucks to travel 25 mph below the speed limit, that he would not advise a driver to stay in its lane if a vehicle is crossing into its path of travel and that once the car crossed the center line the truck driver had 1.5 seconds to perceive the situation, decide on an action plan and react.  After the close of evidence, the plaintiff submitted a modified IPI 3.06 jury instruction that advised the jury that the court had determined that the collision is not one that occurred in the absence of negligence and that one or more of the defendants is liable.  The trial court ruled that it would be improper for the jury to be instructed that it had determined that the collision was a result of negligence because no motion for directed verdict had been presented or granted by the court and neither of the defendants had conceded negligence.  The trial court refused the instruction and the jury found in favor of both defendants.

Holding:  Trial court did not abuse its discretion in refusing to give an instruction that at least one of the drivers was negligent since there was substantial disputed evidence as to whether either driver was negligent and the jury was free to find that both drivers acted reasonably under the circumstances.

Filed in Trial Book:  Standard of Review – Jury Instructions, Absence of Negligence, Snow and Ice, Directed Verdict, New Trial

Commentary:  This is the kind of result that keeps plaintiff’s lawyers up late into the night.  Typically, representing a passenger in a motor vehicle collision is a great case for the attorney because you file suit against both defendants and let the jury sort out the degrees of fault between the drivers.  But this case was far from typical and demonstrates that the mere existence of a collision does not always mean that you can establish negligence against the defendant drivers.  The plaintiff argued on appeal the finding from Millette v. Radosta, 84 Ill.App. 3d 5 (1980), which held that “an automobile properly operated does not, under normal conditions, collide with another automobile or strike a building. Where two automobiles collide under normal conditions, it will be presumed that the collision occurred from the negligent operation of one or both colliding automobiles.”   But the appellate court distinguished this case and found that the accident did not occur under “normal conditions” and because of the icy road conditions the collision could have occurred in the absence of negligent driving.  This conclusion is a bit troubling because snow and ice is not unusual on Illinois roads in the winter (or fall and spring) and drivers need to be accountable for how they operate their vehicles in these conditions.  In my opinion, ice is a normal condition that drivers find in the winter, and if you lose control of the vehicle while driving on an icy road, it seems to follow that this loss of control occurred because you were traveling too fast for the conditions present on the road.  Adding typical and predictable snow and ice conditions on a roadway to the “act of god” defense seems to have the potential for unjust outcomes.

I don’t know what the policy limits were on the car, but I suspect that the likelihood of collecting  on a substantial verdict was much greater if the truck’s responsibility for the collision was at least 25%, and as a result the plaintiff tried to steer as much evidence of negligence onto the truck drier as they reasonably could.  From the facts presented in the opinion, it appears that the majority of any potential liability was on the driver of the vehicle who set the collision in motion when she lost control of her vehicle on ice and veered over the center line and into the path of the truck.  At that time, the truck driver was driving below the speed limit and, importantly, there was no evidence that he lost control of the truck on the ice.  Instead, he deliberately veered to the right to avoid the collision.  I think that the plaintiffs theory that the collision could have been avoided had the driver not veered to the right and stayed straight on his original path is a really tough argument to sell to a jury.  It’s hard to criticize a driver for instinctively veering away when suddenly presented with a vehicle crossing over the center line into its path of travel, and the plaintiffs’ retained expert conceded on cross-examination that he would not advise drivers to continue driving straight when a car crosses the center line into their lane of travel. Clearly, if the plaintiffs had received the jury instruction that they tendered regarding fault, the jury would have had to find one of the drivers responsible.  But based upon the evidence presented to the jury, the trial court refused the instruction because there was disputed evidence on whether any of the acts of the drivers were unreasonable under the circumstances.

Again, this is a heartbreaking result.  The plaintiffs were represented by a very good attorney with a track record for very successful results at trial, and with the expert testimony and three animations presented to the jury in support of the plaintiffs theory, it’s clear that no expense was spared in preparing the case for trial.  Yet, at the end of the day it seems as if the jury identified with the plight of the drivers on the snowy and slick road.

Useful Rules/Language from the Opinion:

Standard of Review – Jury Instructions:  A trial court has discretion to determine which instructions to give the jury and that determination will not be disturbed absent an abuse of that discretion. Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273-74 (2002).  A circuit court does not abuse its discretion regarding jury instructions if the instructions in their entirety “fairly, fully, and comprehensively apprise[ ] the jury of the relevant legal principles.” Id. A reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless they plainly misled the jury and resulted in prejudice to the appellant. Id. at 274.

Absence of Negligence:  ‘[W]e believe a presumption of negligence does arise when the occurrence is shown to proceed from a performance of acts of such character, that when due care is taken, no injury ordinarily results from it. An automobile properly operated does not, under normal conditions, collide with another automobile or strike a building. Where two automobiles collide under normal conditions, it will be presumed that the collision occurred from the negligent operation of one or both colliding automobiles.’ Millette v. Radosta, 84 Ill. App. 3d 5, 27 (quoting Krump v. Highlander Ice Cream Co., 30 Ill. App. 2d 103, 105-07 (1961))….That the accident did not occur under “normal conditions” constitutes another characteristic distinguishing this case from Millette.  As plaintiffs tried to establish throughout the trial, snow covered Peace Road when the accident occurred, and witnesses offered differing opinions about the condition of the road and the effect it may have had on driving conditions. Therefore, unlike in Millette, it cannot be said that under the conditions present on Peace Road on December 1, 2008, an accident could not have happened unless one or both of the parties were negligent.

Directed Verdict:  Where a substantial factual dispute is disclosed by the evidence, the question of plaintiff’s due care or defendant’s negligence should be given to the jury for determination. Korpalski v. Lyman, 114 Ill. App. 3d 563, 566 (1983)

New Trial:  A court of review will not reverse a circuit court’s decision with respect to a motion for a new trial unless it finds the circuit court abused its discretion, and the reviewing court must be “mindful that credibility determinations and the resolution of inconsistencies and conflicts in testimony are for the jury.” York, 222 Ill. 2d at 179. An abuse of discretion occurs only if “no reasonable person would take the view adopted by the trial court.” Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003).

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Filed under Automobile, Negligence, Trial

Barber v. GJ Partners, Inc. – Accumulation of Snow & Ice In A Convenience Store Parking Lot Not An Unnatural Accumulation Despite The Fact That Area Had Been Plowed and Salted

Barber v. G.J. Partners, Inc. – 4-11-0992 (Turner)

Facts:  Plaintiff was injured in the parking lot of a convenience store.  The defendant would plow the parking lot and put down salt.  Near the entrance there were two metal plates that were not level with the ground and therefore when the plows would go over the lot they would fill and pack the plates with snow.  After the plows were done, employees would try to scrape the plates with a shovel and put salt or chemicals down, however, the salt would have little or no effect when temperatures dropped below 28 degrees.  The defendant admitted that the plates were slick in the winter and that other customers had complained and that they were “troublesome” as they “were always covered in ice and snow and very slippery.”  On the date of the occurrence, the Plaintiff exited her truck and stepped down on one of the metal plates and slipped and broke her foot.  Prior to trial, the defendant moved for summary judgment which was denied.  At trial, the defendant moved for a directed verdict which was denied.  The jury found in favor of the Plaintiff and the Defendant appealed.  The Appellate court found in favor of the Defendant and reversed the trial court, holding that the condition was a natural accumulation of ice and therefore not actionable.

Holding:  The accumulation of snow on the metal plates was a natural accumulation and the mere sprinkling of salt, causing the ice to melt, although it may later refreeze, does not aggravate a natural accumulation so as to form a basis for liability on the part of the property owner.

Filed in Trial Book Under:  Premises Liability – Natural Accumulation ; Snow and Ice

Commentary:  This is yet another case in the roller coaster ride that we’ve been seeing with snow and ice cases and the court’s interpretation of the natural accumulation rule.  This is a pretty narrow case from a factual standpoint in that the metal plates were approximately 2 inches lower than the rest of the lot and created and area the original snowfall was being packed down by snow plowing efforts rather than removed.  The employees made efforts to eliminate the risk by salting and shoveling, but due to temperature variations and the continued presence of vehicles going over the plates throughout the winter it seems as if it was difficult task.   The court relies upon the rule that “the mere sprinkling of salt, causing the ice to melt, although it may later refreeze, does not aggravate a natural condition so as to form a basis for liability against the property owner.”  In short, they felt that the underlying snow on the plates was natural and the fact that efforts to plow the lot changed the composition of the snow on top of the recessed metal plates, it does not render that snow an unnatural accumulation.  The appellate court further discusses the policy implications of these cases and concludes, correctly, that we need to have the law develop in a way that encourages property owners to make efforts to remove snow, not to create an incentive for them to do nothing, and it is unrealistic to expect the efforts to be perfect.  This seems to be a unique set of facts and it’s too bad that the plaintiff lost her verdict in the appellate court, but the logic and rationale of the court here seems to make sense.

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Hornacek v. 5th Avenue Property Management – Summary Judgment for Landowner Reversed on Snow and Ice Accumulation Slip and Fall

Hornacek v. 5th Avenue Property Management, et.al., No. 1-10-3502 (Harris)

Facts:  Plaintiff slips and falls on ice in the parking lot of an apartment building.  Facts developed in discovery revealed that the snow contractor would pile the snow in an area next to the building where there would be run-off of water from the snow pile into the parking lot during melting temperatures which could then freeze again, creating “invisible ice.”  Trial court granted the defendants motions for summary judgment on the basis of non-liability from natural accumulations and lack of notice.

Holding:  The run off from piles of snow created as a result of  snow removal efforts are an unnatural accumulation of ice that can be actionable rendering summary judgment improper.

Filed in Trial Book Under:  Premises Liability, Landowner Liability, Snow and Ice

Commentary:  This case places a much needed dent in the knee-jerk position adopted by many that if the fall resulted from ice then there is no actionable case.  I think that this strikes a reasonable balance between scenarios where the condition is truly just a function of weather and those where had the maintenance provider exercised a bit more care there would be no condition at all.  The Plaintiff’s attorney seemed to do a pretty good job of establishing that the location chosen to place these large piles of snow had a direct causal relationship to the creation of the icy condition where the plaintiff fell.  It also reiterates that the location of the fall is very important to the appellate court.  When the dangerous condition is located where people are likely going to be walking to get in and out of the premises there is a much stronger likelihood of the court finding liability.

The opinion contains a plethora of case law and rules regarding landowner liability relative to snow and ice accumulations that will be very handy to anyone writing a brief on the subject.  Here is a recap of the important rules:

  • When a landowner elects to undertake snow and ice removal, the landowner has the duty to exercise ordinary care in doing so.  Erasmus v. CHAm 86 Ill.App.3d 142, 145 (1980)
  • A party under contract with a landowner to remove snow or ice also bears a duty of reasonable care for the customers on the property. Madeo v. Tri-Land Properties, 239 Ill.App. 288, 290 (1992)
  • Snow removal contractors have a duty not to negligently remove snow by creating or aggravating an unnatural accumulation of snow or ice.  McBride v. Taxman Corp., 327 Ill.App.3d 992, 996 (2002)
  • If the landowner or a hired contractor creates and unnatural accumulation then liability may result and the fact that snow has been cleared and that there are piles of snow present suggests that the snow piles are an unnatural accumulation.  Citing Krywin v. CTA, 238 Ill.2d 215, 227 (2010)
  • Where a defendant created the condition through its own negligence, a plaintiff does not need to show constructive or actual notice.  Reed v. Wal-Mart Stores, Inc. 298 Ill.APp.3d 712, 715 (1998)

I expect that this case will be cited quite often in snow and ice cases.  Hopefully, it will lead to a thawing of the position adopted by insurance carriers regarding their settlement positions on these types of cases.

If you or someone you know has suffered an injury resulting from a slip and fall or a dangerous condition of a property please contact Gorey Law Group at (312) 445-5859 or e-mail John Gorey at john@goreylawgroup.com for a free consultation.  

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