Lela Ciciora v. CCA, Incorporated ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1099
L ELA C ICIORA,
Plaintiff-Appellant,
v.
CCAA, INCORPORATED , d/b/a B URRITO JALISCO AND
B RIDGEVIEW B ANK G ROUP, T RUST 13137,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 3036—Joan Humphrey Lefkow, Judge.
A RGUED F EBRUARY 13, 2009—D ECIDED S EPTEMBER 4, 2009
Before K ANNE, R OVNER and E VANS, Circuit Judges.
R OVNER, Circuit Judge. Lela Ciciora slipped on ice
outside the Burrito Jalisco restaurant and sued the defen-
dants CCAA, Inc., doing business as Burrito Jalisco
(“Burrito Jalisco”), and Bridgeview Bank Group, Trust
13137 (“Bridgeview”), for her resulting injuries. Bridge-
view owns the premises on which Ciciora fell, and Burrito
Jalisco leases the property from Bridgeview. According
2 No. 08-1099
to that lease, Bridgeview was responsible for the mainte-
nance of the parking lot, driveway, and sidewalk, includ-
ing snow and ice removal. The district court granted
summary judgment to the defendants, and Ciciora ap-
peals. We affirm.
The essential details of the incident are not in dispute.
The incident occurred on December 13, 2005, outside
Burrito Jalisco which is located near Chicago. The day
prior, approximately 0.06 inches of precipitation had
fallen in the area, but December 13 was overcast with
no precipitation. Ciciora had ordered lunch at Burrito
Jalisco, and left work to pick it up at approximately
10:30 a.m. She parked in the restaurant’s parking lot, and
exited her car, stepping onto the sidewalk. The sidewalk
had been cleared of snow and the owner stated that a
Burrito Jalisco employee, Juan Herrera, had salted the
sidewalk at 9:00 a.m. that morning. Ciciora did not
observe any ice on the sidewalk when she began
walking on it. After only a few steps, and still about
20 steps from the door, Ciciora’s foot slipped on ice
and she fell, fracturing her ankle. Ciciora described the
icy area as about 8 inches wide, and her son who
later visited the scene described it as an icy area of
about 2-3 square feet.
Ciciora relies on a number of legal theories to support
her claim for damages. She asserts that Burrito Jalisco
failed to provide a reasonably safe means of ingress into
its property, and that it was negligent in the voluntary
undertaking of snow and ice removal at its place of busi-
ness. As to defendant Bridgeview, Ciciora argues that
No. 08-1099 3
Bridgeview was contractually obligated to remove
snow and ice according to its lease with Burrito Jalisco,
and that it negligently performed that duty and
negligently delegated that duty to another party. We
note that Ciciora also appeals the district court’s refusal
to strike Burrito Jalisco’s summary judgment motion as
untimely and improperly filed, but we find no abuse of
discretion in that decision and turn to the propriety of
the grant of summary judgment.
In order to state a cause of action for negligence,
Ciciora must allege facts sufficient to demonstrate the
existence of a duty, a breach of that duty, and injury
that was proximately caused by that breach. Flight v.
American Community Management, 893 N.E.2d 285, 288 (Ill.
App. 1 Dist. 2008). The general rule is that in the absence
of a contractual obligation, there is no general duty for
a property owner to remove accumulations of snow or
ice from areas used by invitees where the accumulation
is a natural one and not one caused or aggravated by
the property owner. Judge-Zeit v. General Parking Corp.,
875 N.E.2d 1209, 1216 (Ill. App. 1 Dist. 2007); Strahs v.
Tovar’s Snowplowing, Inc., 812 N.E.2d 441, 445 (Ill. App. 1
Dist. 2004); Madeo v. Tri-Land Properties, Inc., 606 N.E.2d
701, 702 (Ill. App. 2 Dist. 1992). That rule is a recogni-
tion that it is unrealistic to expect property owners to
keep all areas free of snow and ice during the winter
months in this climate. Ordman v. Dacon Management
Corp., 633 N.E.2d 1307, 1311-12 (Ill. App. 3 Dist. 1994).
A duty may be recognized, however, where the
defendant is contractually obligated to remove the
snow and ice, or where the defendant voluntarily under-
4 No. 08-1099
takes to do so. Judge-Zeit, 875 N.E.2d at 1216; Madeo, 606
N.E.2d at 702.
Ciciora produced evidence that Burrito Jalisco volun-
tarily undertook the removal of snow and ice on a
regular basis. In fact, the parties agree that there was
an informal, unwritten agreement that Burrito Jalisco
would shovel and salt the sidewalks and that a con-
tractor hired by Bridgeview would plow the parking lot.
A defendant who voluntarily undertakes the removal
of snow and ice can be liable where the actions resulted
in an unnatural accumulation of snow or ice, or added
to an existing hazard, and caused injury to the plaintiff.
Judge-Zeit, 875 N.E.2d at 1218-19; Buffa v. Haideri, 839
N.E.2d 618, 624 (Ill. App. 2 Dist. 2005). Ciciora has failed
to allege any facts from which a jury could conclude
that the fall resulted from an unnatural accumulation
of snow or ice or the aggravation of an existing condi-
tion. The undisputed facts were that when Ciciora
exited the vehicle, the lot had been plowed and the side-
walk had been shoveled. Although piles of snow existed
at spots where it had been plowed and shoveled,
Ciciora stated in her deposition that the sidewalk was
clear and dry, and that no ice was visible when she
began to walk on it. Ciciora’s son also testified that
when he arrived at the scene the sidewalk was dry to
the extent that he could see the wet footprints of the
emergency workers near the site of the fall. The owner of
the restaurant testified that one of her employees, Juan
Herrera, was responsible for shoveling and icing the
sidewalk each morning, and that she observed him
salting the sidewalk that morning. It was undisputed
No. 08-1099 5
that the concrete was level and in good shape, and that
there was nothing in the condition of the concrete that
contributed to the formation of ice. Ciciora in fact
produces no evidence at all that the ice was anything
other than a natural formation. She makes an isolated
reference to awnings on the store that could drip ice
onto the pavement, but provides no evidence as to
where those awnings are located in reference to the
ice upon which she fell. The deposition testimony in
the case indicates that the awnings extended over the
windows and covered the sidewalk slightly, such that
only a person standing very near the building could
be under them. Ciciora testified that she was 20 steps
from the entrance of the building when she fell, and
has presented no evidence that she was anywhere near
the buildings or the awnings.
Illinois courts have rejected cases with far more
evidence than that vague speculation. For instance, in
Madeo, the plaintiff set forth evidence that the snow was
piled at the high point of a sloped lot, and argued that
the downward pitch of the lot would cause the melting
snow to flow through the lot and refreeze. Madeo, 606
N.E.2d at 703. The court held that the plaintiff must
either show a direct link between the snow piles and
the ice that caused her to slip, or she must provide cir-
cumstantial evidence through an expert; merely inviting
speculation as to the cause of the ice was insufficient
to survive summary judgment. Id. at 705. Ciciora has
far less evidence here. At most, she has identified a po-
tential source of an unnatural accumulation—the awning—
but has presented no evidence that ice actually accumu-
6 No. 08-1099
lated under that awning, or that the fall occurred any-
where in the vicinity of that awning. Because she has
presented no evidence that the fall was a result of an
unnatural accumulation of ice or an aggravation of an
existing condition, the court properly granted sum-
mary judgment to the defendant on this claim.
Ciciora seeks to hold Bridgeview liable for the snow
removal by virtue of the lease between Burrito Jalisco
and Bridgeview under which Bridgeview agreed to be
responsible for the maintenance of the parking lot, drive-
ways and sidewalks, including snow and ice removal.
Although Ciciora was not a party to that contract, that
is not dispositive because the parties do not dispute
that Illinois courts have allowed third-party invitees to
rely on such contracts in establishing a duty. Even if
Ciciora could rely on the lease to establish a duty in
her negligence action, however, she had to demonstrate
that Bridgeview failed to exercise reasonable care in
fulfilling that duty and that the breach of duty proxi-
mately caused her injuries. Ciciora acknowledges that
Bridgeview and Burrito Jalisco had an informal agree-
ment under which Burrito Jalisco’s employee would
clear snow and ice from the sidewalk. She has provided
no evidence that the Burrito Jalisco employee failed to
exercise reasonable care in performing that duty. Al-
though snow had fallen the previous day, the sidewalk
was shoveled and clear of snow, and no ice was visible
as Ciciora began walking on it. Ciciora and her son
both acknowledge that the sidewalk was also dry with
the exception of isolated icy patches. Ciciora stated that
the patch of ice she slipped on was approximately
No. 08-1099 7
8 inches wide, and her son stated that it was approxi-
mately 2-3 square feet. By either account, then, the
patch was a relatively small one on a sidewalk that ap-
peared to have been cleared and that was dry. Ciciora
essentially relies only on the mere existence of some ice
on the sidewalk as evidence that reasonable care was not
exercised, but Illinois courts have made clear that “[t]he
mere presence of snow and ice does not demonstrate
negligence.” Tressler v. Winfield Village Co-op., Inc., 481
N.E.2d 75, 77 (Ill. App. 4 Dist. 1985). Nothing in the
amount or placement of snow and ice indicates a lack
of reasonable care. In fact, the absence of visible ice, the
dry condition of the sidewalk, the presence of plowed
snow piles, and the size of the ice patch all contradict
such a claim. Mere speculation is insufficient, Judge-Zeit,
875 N.E.2d at 1219, and the district court properly
granted summary judgment to Bridgeview on that claim.
All that remains is the claim that Burrito Jalisco failed
to maintain a safe means of ingress and egress. Illinois
courts have made clear that “[t]he duty to provide a
safe egress is not abrogated by the presence of the
natural accumulation of snow and ice.” Judge-Zeit, 875
N.E.2d at 1215. It includes the duty to properly
illuminate the egress and to repair or warn of known
dangerous conditions, id., but there are no allegations
that those duties were breached. By all accounts, the
concrete was in good condition and presented no
hazards, there is no allegation of inadequate lighting (and
the injury occurred in daylight in any event), and there
is no allegation that Burrito was aware of dangerous
conditions. As we discussed earlier, there is no evidence
8 No. 08-1099
that the ice was anything other than a natural accumula-
tion, and as the duty to maintain a safe ingress and egress
does not include the removal of natural accumulations
of ice, there is no viable claim here. The decision of the
district court is A FFIRMED.
9-4-09