Plowing Ahead

In many parts of the U.S., like it or not, snow and ice are absolutes this time of year, creating conditions that can be dangerous to walk through, drive in, and remove. Regardless of local laws, the removal of snow and ice is necessary to keep businesses running.

When selling snow-removal services, it is not uncommon for property owners to demand, and contractors to agree to, removal of “all” snow and ice. Contractors also routinely agree to monitor the property, but generally provide no specificity as to how or when that monitoring will be performed. Property owners and occupiers sometimes impose a “zero tolerance” of snow and ice on their properties. In such instances, contracts may contain language that the premises will be “kept safe” and “free of all snow and ice.” These absolutist contractual protections may sound good for business, but what are the legal implications of such language?

When a slip and fall occurs on snow or ice, the plaintiff often sues both the landowner and the snow-removal contractor. In some jurisdictions (such as Illinois), the liability of the landowner has been well established pursuant to the natural accumulation rule, but the liability of the snow-removal contractor has not been as clear.

When the snow-removal contract contains absolute statements such as “zero tolerance,” which conflict with the common law natural accumulation rule, the court must decide what legal standard of care the contracting party/defendant should be held to. Can an injured third party avail itself to the same standard of care applicable to the contracting parties? Might the court hold that the contract sets the standard of care? Should the court apply a reasonable standard maintaining the longstanding common law standard of care, as delineated in the natural accumulation rule? Let’s look at a jurisdiction that has wrestled with these questions in the courts.

The Natural Accumulation Rule

Some states follow a “natural accumulation rule” that essentially holds that property owners are not responsible for accidents resulting from the natural accumulation of weather, be it rain, snow, or ice. In Illinois, the state’s Supreme Court first recognized the natural accumulation rule in 1931, in Graham v. City of Chicago. There, the court held that a landowner has no legal duty to warn a person about the conditions or to remove natural accumulations of ice, snow, or water from its property.

The Illinois Supreme Court explained that it would be “unreasonable to compel a city to expend the money and perform the labor necessary to keep its walks reasonably free from ice and snow during winter months.” Illinois courts have found that, in the northern climate where ice and snow come frequently, the natural accumulation rule is a practical and reasonable rule.

Landowners who do attempt to remove snow and ice must do so reasonably. If a landowner removes snow or ice but leaves natural snow or ice remaining on the property, landowners remain shielded from liability. In other words, residual natural accumulations left by snow removal operations do not constitute an unnatural accumulation.

Split Decisions: Common Law Versus Contract

The application of the natural accumulation rule to landowners has been recognized and upheld for decades in Illinois. However, the same consistent application could not be found in cases involving persons and entities who have contractually agreed to remove snow and ice on behalf of the landowner, commonly referred to as a “snow-removal contractor” by the courts. In claims involving the removal of snow or ice by a snow-removal contractor, Illinois courts have followed two conflicting applications of the law.

On one hand, courts have expanded the natural accumulation rule and held that a snow-removal contractor’s duty was only to not negligently remove snow by creating or aggravating an unnatural accumulation of snow or ice. For example, the Illinois Appellate court in Wells v. Great Atlantic & Pacific Tea Co. and in McBride v. Taxman Corp. specifically recognized the contract between the landowner and snow-removal contractor, but decided to disregard the contractual language in favor of upholding the duty found in the common law application of the natural accumulation rule. In both cases, the appellate courts rejected the plaintiff’s argument that absolutist contract language overrides the natural accumulation rule standard of care.

In Wells, the court explained that the snow-removal contractor’s obligation to comply with the contract was owed to the landowner with whom it contracted; not to the plaintiff. In McBride, the court found no previous case law that required a snow-removal contractor to remove natural accumulations of snow and ice. The Wells and McBride decisions upheld the snow-removal contractor’s legal duty as pronounced by the common law natural accumulation rule: to not negligently remove the snow and ice and to not create or aggravate an unnatural accumulation.

On the other hand, some Illinois courts have disregarded the common-law natural accumulation rule and have relied on the terms of the contract between the landowner and the snow-removal contractor to define the scope of the snow-removal contractor’s duty to a plaintiff. For example, the snow-removal contractor in Williams v. Sebert Landscape Co. entered into a contract to remove snow, but not ice. The court held that the scope of a snow-removal contractor’s duty of care to the plaintiff was delineated by the terms of its contract with the property owner.

Pursuant to the Williams court’s ruling, if a contractor agreed to remove “all snow and ice,” then the court would define the contractor’s duty to the plaintiff by the contractual language. That means if an individual sought to recover damages as a result of a fall on snow or ice, regardless of whether that snow or ice was caused by a natural accumulation or a residual amount left following service, the terms of the contract would override the natural accumulation rule and the snow-removal contractor would be liable for any fall on any snow or ice.

Also under Williams, if a landowner relies upon the snow-removal contractor, and the two entities agree to the removal of “all” snow or ice, such an agreement is neither vague nor ambiguous, and the parties should be expected to perform in compliance with the contract. The Williams court reasoned that it can certainly be assumed that the parties knew of the weather conditions that are likely and common in the area, and yet agreed to a standard in excess of the long-standing natural accumulation rule. As such, if a person is injured because all snow or ice was not removed, then the contractor should not be able to accept the benefit of the contract without being held responsible for breaching the contract terms.

Until December 2018, landowners and snow-removal contractors, as well as their legal counsel, had no roadmap to navigate between the two competing applications.

Jordan v. Kroger Co.

In December 2018, the First District Appellate Court answered the question: Does a snow-removal contract create a duty on behalf of the snow-removal company to an injured third party, or does the natural accumulation rule duty standard apply? The Jordan court answered that the natural accumulation rule duty standard applies. In doing so, the Jordan court relied on McBride and Wells.

In the Jordan case, a grocery store had a contract with a logistics company, who in turn had a contract with a lawn-care company to provide snow and ice removal on the premises. The contract between the logistics company and the lawn-care company was very detailed and stated that the lawn-care company would keep the premises “cleared of any snow, slush, or ice down to bare pavement at all times.”

There was precipitation the day before the accident but not on the day of the accident. Temperatures were fluctuating above and below freezing the day of and the day before the accident. The lawn-care company did not perform any snow or ice removal services in the month prior to the incident. The plaintiff slipped and fell on “black ice.” The trial court granted summary judgment for the lawn-care company, finding that there was no evidence that it breached a duty.

On appeal, the plaintiff argued that, pursuant to the contract, the lawn-care company voluntarily assumed a contractual duty to remove all accumulations of snow and ice, and therefore the lawn-care company should be held liable in tort to the plaintiff for negligently failing to fulfill its contractual duty.

To determine if a defendant could be liable in tort to a third party pursuant to a contract, the appellate court looked to Section 324A 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 his failure to exercise reasonable care to protect his undertaking, if:

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

The court found that Subsection (a) did not apply because the plaintiff did not claim that defendants increased the risk of harm from slip-and-fall accidents, such as a premises defect. Similarly, the court held that Subsection (b) did not apply because there is no general duty to remove natural accumulations of snow and ice.

The Jordan court then acknowledged a split in Illinois “as to whether a party who contracts to remove snow and ice, and then fails to do so, can be held liable under Section 324A(c) to third parties who are injured by natural accumulations of snow and ice. After a thorough discussion of the cases, including McBride and Wells, the Jordan court found that “Illinois courts have repeatedly rejected the argument that existence of a snow-removal contract overrides the natural accumulation rule.”

This ruling from Jordan clarifies the existing law in Illinois: that the scope of a snow-removal contractor’s duty of care to third parties is not delineated from the terms of its contract with the property owner. To the extent that Williams or other older Illinois cases so hold, Jordan has expressly overruled such a contention by its pronouncement that McBride is to be followed.

The Jordan court emphasized the policy considerations behind its ruling, including that the Illinois Supreme Court reaffirmed the natural accumulation rule in Krywin v. Chicago Transit Authority. The Illinois Supreme Court in Krywin explained that the rule exonerating landlords from liability for natural accumulations recognizes the climatic vagaries of this area with its unpredictable snowfalls and frequent temperature changes. “Snowstorms cannot be foreseen or controlled. Thus, it has been considered that another standard would impose an unreasonable burden of vigilance and care on landlords.”

The Jordan court also acknowledged that holding a snow-removal contractor liable pursuant to a contract, where it would otherwise not be liable in the absence of a contract, would discourage landowners from arranging for the removal of snow and ice, and discourage contractors from agreeing to provide such services.

The Road Ahead

The Jordan decision has positive implications in the defense of natural accumulation cases. However, this is not the end of the debate. Cases continue to be decided that impact this issue and demonstrate the conflicting views that exist. In June 2019, the First District Appellate Court rendered another opinion in Mickens v. CPS Chi. Parking. The Mickens opinion directly conflicts with the Jordan decision. Mickens holds that the natural accumulation rule would not immunize the snow-removal contractor from its promise to remove natural snow or ice accumulations. We can continue to expect challenges and factually specific rulings regarding this issue in the future.

In addition, cases outside of the First Appellate District will likely face the argument that the Jordan decision amounts to only persuasive authority and lacks precedential value. It is clear the Illinois Appellate Court’s intention in the Jordan decision was to address and resolve the prior split in authority.

Regardless of the ongoing conflicts in case law, the pre-emptive drafting of clear and unambiguous contractual language presents the strongest defense. The ongoing use of absolute statements in contracts will continue to cause defense lawyers to wage a battle for a reasonable interpretation, while lawyers for the injured parties will seek to use the contract language to impose a heightened standard. The Jordan decision does not stop this battle, but provides a shield the defense can use in future snow and ice claims.