As this last long winter season has finally come to an end, it’s time for contractors to revisit their snow and ice removal contracts for next winter. Illinois law regarding snow and ice removal contractors’ liability seems to have quietly changed, so take a hard look at what you’ve agreed to perform on behalf of a property owner.
Natural Accumulation Rule for Property Owners
Illinois winters can be brutal and unpredictable. Therefore, the Illinois Supreme Court has held that a landowner or possessor of real property has no duty to remove natural accumulations of ice and snow from their property. Krywin v. Chic Trasit Auth., 238 Ill. 2d 215, 227 (2010). To be successful in litigation against a property owner for injuries resulting from falling on snow and ice, plaintiffs need to establish that what caused their injuries was the result of something other than a natural accumulation. Landowners only have a duty of reasonable care to prevent unnatural accumulations of ice and snow—provided they had actual or constructive knowledge of the condition. Murphy-Hylton v. Lieberman Management Services, 2016 IL 120394.
Loss of Natural Accumulation Rule for Snow and Ice Removal Contractors
This natural accumulation rule had generally extended to snow removal companies. However, in 2019, the First District court decision in Mickens v. CPS Chicago Parking, LLC, (2019 Ill. App. (1st) 180156, 131 N.E.3d 1158.) distinguished the established natural accumulation rule and eliminated it as it applies to contractors hired to perform snow and ice removal. The court in Mickens held “that once a voluntary undertaking is based on a contractual promise, the scope of the voluntary assumed duty is defined by the contractual promise.” The court reasoned that “[i]f a landowner contracts with a snow-removal contractor to remove natural snow and ice accumulations, [isn’t] the clear and obvious expectation that the snow-removal contractor will do just that? [Or that they’ll a]t least use reasonable care in doing it?”
To further establish that a contractor may owe the duty of care to a third party, the appellate court cited a section of the Restatement (Second) of Torts, which states:
“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 or his things, is subject to liability to the third person for physical harm resulting from this failure to exercise reasonable care to protect his undertaking…(c) the harm is suffered because of the reliance of the other party or the third person upon the undertaking.” Restatement (Second) of Torts § 324A.
The ruling in Mickens departs from the long-standing rule that property owners and contractors hired to remove snow and ice cannot be liable to third-parties for injuries caused by naturally accumulated snow and ice. Contractors that undertake this responsibility are no longer insulated from liability.
Impact of Mickens Ruling
The impact of this decision has yet to be seen. Undoubtedly, it will be far-reaching. Since Mickens, the appellate court has yet to fully develop and interpret what this decision means going forward. One thing is certain, however: contractors that undertake snow and ice removal responsibilities will need to be more cognizant of what services they’ve agreed to perform because it is inevitable that the courts will be looking more closely at exactly what the contractual agreement was between the property owner and the contractor hired to perform snow and ice removal services and whether or not a duty was breached
An example of this is shown in an October 2020 unpublished opinion. The First District appellate court upheld summary judgment for a snow and ice removal contractor where the contractor did not breach its duty as set forth in its contract. Schnur v. Raro Lawn Services, Inc. (2020 IL App (1st) 192087-U). Plaintiff slipped and fell on an accumulation of ice in the parking lot. Plaintiff then claimed that Raro Lawn Service was hired to remove snow and ice pursuant to its contract, which obligated Raro “to remove or to salt when ice was present.” Plaintiff further claimed that Raro disregarded a winter weather advisory warning for freezing rain and did not salt the parking lot. However, there was no requirement in the contract to preemptively salt. The contract did not specifically spell out the circumstances that trigger required salting of the parking lot, leaving it instead to the discretion of Raro. Because there was no evidence that the contractor did not abide by that duty, the court found summary judgment proper.
Following Mickens, it is clear that for hired contractors, the issue is no longer whether the ice or snow was a natural or unnatural accumulation. The issue now is whether there is negligence on the part of the contractor hired to perform the services. Did the contractor take reasonable care in the removal of snow and ice, and did the contractor perform what it agreed to perform? Time will tell how this change with impact contracts between property owners and contractors, but one thing is for certain: contract language is going to matter when it comes to liability. Contractors take heed.