James B. Miller
Slip and Fall on Snow and Ice
On June 28, 2011, in the case of Moore v. Chicago Park District, 2011 IL App (1st) 103325, the First District Appellate Court of Illinois issued an opinion regarding premises liability (slip and fall) law. In this case, the Court was called upon to determine the following certified question pursuant to Supreme Court Rule 308: “Does an unnatural accumulation of snow and ice constitute the ‘existence of a condition of any public property’ as used in section 3-106 of the Tort Immunity Act?”
The facts revealed that plaintiff’s decedent, Slyvia Moore, regularly attended a water aerobics class that was offered by the defendant, Chicago Park District. On the morning of January 23, 2006, Moore parked her car in the parking lot. It had snowed several inches over the previous weekend and a Park District employee shoveled the sidewalk snow by pushing it to the curb. After completing the class, Moore left the building and headed towards her car. Multiple cars were parked near the handicap parking space which blocked easy access to the parking lot and there were snow and ice between the parked cars. Moore proceeded to step between two parked cars and, while stepping over the snow, she fell and broke her leg. After undergoing an operation to repair her broken leg, Moore suffered brain damage and subsequently died.
The plaintiff, Roberta Moore, as special administrator, filed a two-count complaint alleging the Park District negligently created an unsafe unnatural accumulation of ice and snow on its property which caused the injuries and death of her decedent. The Park District’s motion for summary judgment was denied. The trial court certified the question for interlocutory appeal pursuant to Rule 308.
The First District Appellate Court started its analysis by citing previous case law that states the public entity bears the burden of proving whether it is immune from a claim under the Tort Immunity Act and that the Act is to be strictly construed against the public entity because it is in derogation of the common law.
Section 3-106 of the Tort Immunity Act provides an affirmative defense a public entity may raise and it states as follows:
- Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings, or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury. 745 ILCS 10/3-106.
- The Court held that the unnatural accumulation of snow and ice is not a “condition” under section 3-106 and, therefore, the Park District cannot rely on the immunity provided by it. The Court stated “[s]ince the Park District employee allegedly moved and stored snow negligently on the property of the Park District that was otherwise in a normal state, section 3-106 of the Act does not apply.” In its reasoning, the Court relied on the Illinois Supreme Court case of McCuen v. Peoria Park District which held “[i]f otherwise safe property is misused so that it is no longer safe, but the property itself remains unchanged, any danger presented by the property is due to the misuse of the property and not to the condition of the property.” Therefore, the Court concluded that the property itself was not unsafe, but instead, the moving of the snow and ice was an unsafe activity on the otherwise safe property. The Court stated “the temporary nature of snow and ice warrants our conclusion that the unnatural accumulation of snow and ice is not a condition of the property under section 3-106 of the Act. In Illinois, snow and ice conditions are not permanent. If left undisturbed, they melt and evaporate back into the atmosphere. They are not part of the realty or permanently affixed to it.”