2nd District: Snow Plowing Contractor, Condo Association and Manager NOT Immune for Slip and Fall Accident on Driveway
In a January 27, 2010 opinion the Second District Appellate Court of Illinois held that the immunity granted to associations, building owners, and their agents under the Snow and Ice Removal Act (the Act) (745 ILCS 75/1 et. seq) for negligent removal of snow or ice on SIDEWALKS does NOT make them immune or negligent snow or ice removal on DRIVEWAYS.
In this case the snow plowing contractor apparently plowed single, narrow path up the middle of the plaintiff's driveway to the garage, such that snow was mounded on each side of the path and also in front of the garage, and allegedly creating a sheer packed ice surface in area plowed. As a result, the plaintiff could not drive his car into the garage, and instead parked on the street and walked up the plowed path to inspect the snow in front of his garage. He slipped and fell on the plowed driveway and sustained right distal tibia and fibula fractures.
The condominium unit owner then sued the association, the management company, and the snow plowing contractor for negligence in creating the unnatural snow and ice condition that caused his injuries, and for failing to spread sand or salt to alleviate the risk, to warn him of the risk, or to create an alternative, safe route to access his garage. On motion from the snow plowing contractor, the trial court dismissed the lawsuit as to all claims and all parties based on the Act.
On appeal the Second District found that the word "sidewalk" in the Act means a pedestrian walkway and cannot be construed to extend to a driveway. Therefore the defendants were not immune from suit under the Act and the defendants could be liable for negligence, and the appellate court reversed the decision of the trial court.
If you are on a condo association board, manage condos, or are a snow plowing/removal contractor, this case has significant implications. Although not specifically addressed by the court, the Second District's reasoning that immunity does not extend to driveways because they are paved surfaces for motor vehicles rather than pedestrian use, could logically be applied to parking lots as well. In many associations, with or without garages, pedestrians must walk on or across a driveway or parking lot to reach their vehicles. Such a situation poses a liability risk to associations, managers, and contractors that should be addressed by contract. Associations, managers, and contractors may wish to review their condominium or homeowners association documents and contracts for indemnification and limitations of liability terms and conditions in light of this decision.
The case is Gallagher v. Union Square Condo. Homeowner's Assoc, No. 2-09-0271, __ Ill. App. 3d __ (2nd Dist. 2010).