Opinion
Case No. 99-4274-JPG
April 11, 2001
MEMORANDUM AND ORDER
This matter comes before the Court on defendant United States of America's ("Government") Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Doc. 21). The Court has considered the entire file, including the memorandum in support of the motion (Doc. 22), plaintiff Scott R. Meyer's ("Meyer") response (Docs. 23 24) and the Government's reply (Doc. 25).
I. Background
Count I of the plaintiffs' complaint is a Federal Tort Claims Act ("FTCA") claim stemming from an incident in which Meyer slipped and fell on post office property. The Court dismissed Count II, a claim for loss of consortium by Meyer's wife, for lack of subject matter jurisdiction. The Government filed this motion arguing that there is no genuine issue of material fact regarding the duty the Government owed to Meyer and that the Government is entitled to judgment as a matter of law. Because the parties have submitted matters outside the pleadings, the Court considers this motion as one for summary judgment. Fed.R.Civ.P. 12(b).
II. Summary Judgment Standard
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath, 211 F.3d at 396.
In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). "[S]ummary judgment is proper where a plaintiff neglects to establish any factual support for a theory of recovery." Buscaglia v. United States, 25 F.3d 530, 535 (7th Cir. 1994). However, a genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; accord Michas, 209 F.3d at 692.
III. Facts
Viewed in the light most favorable to Meyer, the evidence establishes the following relevant facts.
Meyer's response refers to a "D. English depo.," and a "Bruce Maurizio depo.," which the Court has been unable to locate in the record. Nevertheless, the Court has included the alleged but unsupported facts in its statement of the facts because, even giving credit to the alleged deposition statements, the Government is entitled to summary judgment.
The Government operates and maintains the Carterville post office in southern Illinois ("post office"). Bob Maurizio ("Maurizio") is the postmaster for the post office. There is a sidewalk on the north and east sides of the building. The northeast corner of the post office building, near where the north and east sidewalks meet, is not a traditional corner. It is actually an inverted corner, which creates two protruding corners and an alcove between them. See Def.'s Br. Supp. Summ. J. Ex. 1, Meyer Dep. Ex. 1. The sidewalk does not enter the alcove, which is a fairly level grassy area. Against the west wall of the alcove is a down spout, which is designed to drain water eastward from the roof of the post office into the grassy area. Maurizio has never seen flooding in the area around the down spout, or icing either in the alcove or overflowing onto the sidewalk. Maurizio normally cleared the sidewalks of ice and snow when necessary on weekdays, and another staff member filled in for him on weekends.
On January 7 and 8, 1999, southern Illinois was hit with a winter storm. The storm brought sleet, freezing rain, snow and ice to the area. On Saturday, January 9, 1999, Meyer visited the post office at approximately 6:15 p.m. At that time, the post office parking lot, sidewalks and surrounding areas were partially covered with snow and ice from the winter storm, although someone had applied "ice melt" to the sidewalks at 10:30 a.m. that morning. Meyer parked his car on the east side of the post office building and walked inside using the east-west sidewalk on the north side of the building. He noticed patches of ice on the sidewalk and took care to avoid walking on them.
Once he completed his postal business, Meyer once again used the sidewalk to return to his car. This time, he used a portion of the north-south sidewalk on the east side of the post office that he had not used when he had entered the building. Meyer slipped and fell on a patch of ice on the sidewalk at the northeast corner of the building, near the alcove and the down spout. He got up immediately and returned to his car but suffered injuries as a result of his fall. The ice upon which he slipped was thicker than the ice on any other part of the sidewalk. There was no salt or ice melt there, although there was evidence that someone had tried to clear the sidewalk closer to the post office door.
III. The Lawsuit
Meyer brought this suit under the FTCA claiming that the Government was negligent in allowing an unnatural accumulation of ice on the sidewalk where he slipped that originated from the down spout, in failing to warn Meyer about the unnatural accumulation of ice, and in failing to maintain the sidewalks in a safe condition.
The Government filed this summary judgment motion claiming that Meyer has no direct or circumstantial evidence that the ice on the sidewalk where he fell was an unnatural accumulation that either came from the down spout or was caused or aggravated by negligent ice removal efforts. Therefore, in the Government's view, Meyer's assertion that the ice upon which he slipped was caused by the Government's negligence is pure speculation. The Government also claims that Meyer has no evidence to show that it had notice of the condition of the sidewalk at the time he fell. On the other side, Meyer maintains that there are genuine issues of material fact regarding whether the ice upon which Meyer slipped was an unnatural accumulation coming from the down spout and whether the Government exercised due care once it undertook to clear ice from portions of the post office sidewalk.
IV. Analysis
Meyer has not presented any evidence that the Government was negligent in any way. A defendant is entitled to summary judgment if a plaintiff has presented no evidence that the defendant was in any way responsible for causing or aggravating the accumulation of ice upon which the plaintiff slipped in such a way as to make it an unnatural accumulation of ice. Bloom v. Bistro Restaurant Ltd. P'ship, 710 N.E.2d 121, 123-24 (Ill.Ct.App. 1999); Madeo v. Tri-Land Prop., Inc., 606 N.E.2d 701, 702 (Ill.Ct.App. 1992); Webb v. Morgan, 531 N.E.2d 36, 39 (Ill.Ct.App. 1988). Therefore, the Government is entitled to summary judgment in this case.
A. Liability for Accumulations of Ice and Snow
FTCA lawsuits are governed by the substantive law of the state in which the injury occurred. Hess v. United States, 361 U.S. 314, 318 (1960). The parties agree that Illinois law applies in this case and that, under Illinois law, property owners have no duty to clear naturally accumulating snow and ice from their property. Ziencina v. County of Cook, 719 N.E.2d 739, 744 (Ill. 1999); Graham v. City of Chicago, 178 N.E. 911, 912 (Ill. 1931); Bloom v. Bistro Restaurant Ltd. P'ship, 710 N.E.2d 121, 123 (Ill.Ct.App. 1999); Kiel v. City of Girard, 654 N.E.2d 1101, 1104 (Ill.Ct.App. 1995). Therefore, the property owners cannot be liable for injuries caused merely by naturally accumulating snow and ice. Graham, 178 N.E. at 912; Ordman v. Dacon Mgmt. Corp., 633 N.E.2d 1307, 1311-12 (Ill.Ct.App. 1994). However, a property owner can be liable for injuries caused by an unnatural accumulation of snow or ice on his property of which he knows or should know. Graham, 178 N.E.2d at 913; Ordman, 633 N.E.2d at 1312.
Such an unnatural accumulation may occur as a result of the design of a building or other construct. Graham, 178 N.E.2d at 911 (playground/sidewalk); Ordman, 633 N.E.2d at 1312 (garage roof); see Bloom, 710 N.E.2d at 123 (protrusions from building). An unnatural accumulation may also occur as a result of a property owner's efforts at snow or ice removal. A property owner may be liable if he voluntarily takes steps to remove snow and ice from his property but does not exercise reasonable care or creates an unnatural accumulation in doing so. Madeo v. Tri-Land Prop., Inc., 606 N.E.2d 701, 702 (Ill.Ct.App. 1992) (snow pile by inclined surface); Selby v. Danville Pepsi-Cola Bottling Co., 523 N.E.2d 697, 701 (Ill.Ct.App. 1988) (same). The property owner can only be liable to the extent of his voluntary undertaking. Pippin v. Chicago Housing Authority, 399 N.E.2d 596, 599 (Ill. 1979). However, "mere removal of snow, which may leave a natural ice formation remaining on the premises does not of itself constitute negligence." Kiel, 654 N.E.2d at 1104 (quotations omitted); accord Webb v. Morgan, 531 N.E.2d 36, 39 (Ill.Ct.App. 1988). Furthermore, "the gratuitous performance of removing snow and spreading salt does not alone create a continuing duty to perform those tasks." Ordman, 633 N.E.2d at 1311; Burke v. City of Chicago, 513 N.E.2d 984, 987 (Ill.Ct.App. 1987).
Where the plaintiff alleges that an unnatural accumulation of ice led to an injury, he can survive a motion for summary judgment only if he can present some evidence that an unnatural accumulation was created or aggravated by the defendant and that the defendant had actual or constructive knowledge of the unnatural accumulation. Bloom at 123-24; Crane v. Triangle Plaza, Inc., 591 N.E.2d 936, 941-42 (Ill.Ct.App. 1992); Wells v. Great Atl. Pac. Tea Co., 525 N.E.2d 1127, 1131 (Ill.Ct.App. 1988). The mere existence of the unnatural accumulation in proximity to the location of the injury is not enough. Crane, 591 N.E.2d at 940. Furthermore, in an ice slip-and-fall case, "the plaintiff's belief as to how the ice formed [does] not constitute a sufficient `factual nexus [for the] assertion that the ice was created by an unnatural accumulation. . . .'" Madeo, 606 N.E.2d at 704 (quoting Crane, 519 N.E.2d at 942). In other words, the plaintiff must offer evidence of a nexus between the defendant and the condition that allegedly caused the accident. Crane, 591 N.E.2d at 940.
The plaintiff in Webb v. Morgan, 531 N.E.2d 36 (Ill.Ct.App. 1988), was able to produce evidence of such a nexus. In Webb, the plaintiff sued when she slipped and fell on ice in a parking area of a mobile home park owned by the defendant. Id. at 37. Prior to her fall, the defendant's son had plowed the snow from the parking area into mounds along the edge of the area. Id. at 38. Witnesses testified that on days where the temperature was above freezing, the snow mounds would melt, water would run across the parking lot, and at night it would refreeze into sheets of ice across the parking lot. Id. In addition, the plaintiff presented expert testimony that runoff from the melting snow mounds would likely have accumulated in the area where the plaintiff slipped and fell. Id. The Illinois Appellate Court found that, considering such evidence, a reasonable jury could infer that the mounds of snow created by the defendant's agents caused an unnatural accumulation of ice on which the plaintiff fell. Id. at 39. Accordingly, it upheld the verdict for the plaintiff. Id. at 40.
The plaintiff in Madeo v. Tri-Land Properties, Inc., 606 N.E.2d 701 (Ill.Ct.App. 1992), was not so fortunate. Madeo also involved a slip and fall in a parking lot on the edge of which were piled mounds of snow. Id. at 702. Like the Webb plaintiff, the Madeo plaintiff claimed that the ice upon which she slipped was caused when the mound of snow placed at the high point of the sloped lot melted, flowed onto the lot, and refroze. Id. In opposition to a summary judgment motion, the plaintiff presented evidence that the snow was piled on the edge of the parking lot and that the parking lot sloped slightly. Id. at 703-04. She also presented opinion evidence that the snow should have been piled in a different place. Id. at 704. In affirming summary judgment for the defendant, the owner of the parking lot, the Illinois Appellate Court focused on the plaintiff's lack of evidence connecting the mound of snow created by the defendant with the ice upon which she slipped. Id. at 703-04. The court stated:
Although plaintiff need not prove her case in order to defeat a motion for summary judgment, she must present some facts to show that the ice was unnatural or caused by defendant. . . . She must either show a direct link between defendants' snow piles and the ice that caused her to slip, or she must provide circumstantial evidence through an expert. . . . It is not enough that the plaintiff invites speculation as to the cause of the ice.
Id. at 705 (quotations and citations omitted). The court noted that the plaintiff had provided no evidence, direct or circumstantial, that could lead a reasonable trier of fact to conclude that the ice resulted from unnatural, rather than natural, conditions. Id. at 704-05. "Other than stating, in essence, that `water flows downhill,' plaintiff provided no evidence as to how the grade in the lot could have caused water from the snow bank to reach the spot where plaintiff slipped." Id. at 705.
B. Application to This Case
Meyer has not presented any evidence that an unnatural accumulation was created or aggravated by the Government or that the Government had actual or constructive knowledge of any unnatural accumulation. Thus, no reasonable jury could conclude that the ice on which he slipped resulted from an unnatural condition caused by or aggravated by the Government.
1. Reasonable Care in Ice Removal Efforts
Meyer claims that the Government failed to exercise reasonable care in its voluntary efforts to remove ice from the post office sidewalk. He points to the efforts to remove ice in the past to show that the Government voluntarily undertook efforts to remove ice on January 9, 1999.
However, Illinois law is clear that removing ice on one occasion does not create a continuing duty to remove ice every time it forms. Burke v. City of Chicago, 513 N.E.2d 984, 987 (Ill.Ct.App. 1987); Ordman v. Dacon Mgmt. Corp., 633 N.E.2d 1307, 1311 (Ill.Ct.App. 1994). Indeed, such a rule would be unwise because it would discourage property owners from ever removing any ice or snow for fear that they would be liable forever into the future for failing to do so.
Meyer also claims that because the sidewalk where Meyer slipped was not cleared of ice when other areas of the sidewalk were sprinkled with ice melt, the inference must be drawn that the Government did not use reasonable care to clear the ice on which he slipped. Once again, Meyer misses the point. Illinois law does not create a duty to remove all ice from sidewalks if any ice at all is removed. That rule would discourage landowners from removing ice from well-traveled areas by main entrances for fear that they would incur a duty to clear all areas of the premises. A landowner can be liable only for the performance of what he undertakes to do, even if he undertakes a limited task such as clearing only the front sidewalk. See Pippin v. Chicago Housing Authority, 399 N.E.2d 596, 599 (Ill. 1979); Roberson v. J.C. Penney Co., 623 N.E.2d 364, 366 (Ill.Ct.App. 1993).
Meyer has presented no evidence that the Government created or aggravated any unnatural accumulation of ice or was negligent by failing to clear the sidewalk of ice in the area where Meyer slipped.
2. Down Spout
Meyer claims that the placement of the down spout near the place where Meyer fell and the thickness of the ice on which he fell leads to the inference that the water from the down spout caused an unnatural accumulation of ice where he fell. The Court disagrees. Other than the sheer proximity of the down spout to the sidewalk, Meyer has presented no evidence that the design of the down spout contributed to an unnatural accumulation of ice where he fell. The Crane court established that mere proximity is not enough to infer causation. As noted in Madeo, a plaintiff such as Meyer must either show a direct link between the defendant's actions (in this case, the placement of the down spout) and the ice that caused him to slip, or, like the plaintiff in Webb, he must provide circumstantial evidence through an expert that connects the two. Speculation will not suffice.
Meyer has presented no non-speculative direct evidence of any connection between water from the down spout and the ice on which he slipped. In fact, the only relevant evidence in the record is Maurizio's statement that he has never seen water run from the down spout or the grassy area onto the sidewalk. Meyer's speculation that the ice was formed from water from the down spout is equivalent in evidentiary value to the Madeo plaintiff's speculation that water from a snow pile flowed across the parking lot. Such speculation was inadequate in Madeo to resist summary judgment, and it is inadequate here. Meyer has also presented no expert testimony that water from the down spout would likely have created an unnatural accumulation on the sidewalk where he slipped. In sum, Meyer has presented no concrete evidence that the Government's placement of the down spout created or aggravated any unnatural accumulation of ice.
In the absence of any evidence whatsoever that the Government created or aggravated any unnatural accumulation of ice, no reasonable jury could find that the Government is liable to Meyer for his injuries. Thus, the Government is entitled to judgment as a matter of law.
3. Notice
Even if it were possible for a reasonable jury to find that the ice upon which Meyer slipped was an unnatural accumulation, Meyer has failed to provide any evidence that the Government knew or should have known of the unnatural accumulation. Meyer argues that the efforts to clear the sidewalk and the placement of the down spout itself point to the fact that the Government knew ice was on the sidewalk. However, whether ice was on the sidewalk is not the relevant inquiry. Meyer must show that the Government knew or should have known that an unnatural accumulation of ice was on the sidewalk before they can be held liable for it. He has not provided any evidence to support this element.
V. Conclusion
For the foregoing reasons, the Court finds that there is no genuine issue of material fact regarding the duty that the Government owed to Meyer with respect to removing ice on the post office sidewalk. Meyer has presented no evidence that the ice on which he slipped was an unnatural accumulation or was the result of negligent ice removal efforts. He has also presented no evidence that the Government knew or should have known of any unnatural accumulation. There is no evidence from which a reasonable jury could infer that the Government owed any duty to Meyer to remove the ice on which he slipped. There is no genuine issue of material fact and the Government is entitled to judgment as a matter of law. Therefore, the Court hereby GRANTS the Government's Motion for Summary Judgment (Doc. 21), DISMISSES Count I of this case and DIRECTS the Clerk of Court to enter judgment accordingly.
IT IS SO ORDERED.