{ "id": 3749772, "name": "DEBBIE TZAKIS, Plaintiff-Appellant, v. DOMINICK'S FINER FOODS, INC., Defendant-Appellee", "name_abbreviation": "Tzakis v. Dominick's Finer Foods, Inc.", "decision_date": "2005-03-24", "docket_number": "No. 1-04-0261", "first_page": "740", "last_page": "748", "citations": [ { "type": "official", "cite": "356 Ill. App. 3d 740" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "86 Ill. App. 3d 142", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3185325 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0142-01" ] }, { "cite": "340 N.E.2d 184", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 164", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2963807 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0164-01" ] }, { "cite": "237 Ill. App. 3d 976", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5164044 ], "year": 1992, "pin_cites": [ { "parenthetical": "up to the legislature to make a change in the natural accumulation rule" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0976-01" ] }, { "cite": "115 Ill. App. 3d 795", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3557652 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "801" }, { "page": "801" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0795-01" ] }, { "cite": "186 Ill. App. 3d 869", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2658296 ], "year": 1989, "pin_cites": [ { "page": "873" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0869-01" ] }, { "cite": "29 Ill. App. 2d 306", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5219912 ], "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/29/0306-01" ] }, { "cite": "80 Ill. App. 3d 544", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3236246 ], "weight": 3, "pin_cites": [ { "page": "549" }, { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0544-01" ] }, { "cite": "107 Ill. App. 3d 896", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3019978 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0896-01" ] }, { "cite": "171 Ill. App. 3d 1012", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3617773 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "1017" }, { "page": "1017-18" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/1012-01" ] }, { "cite": "228 Ill. App. 3d 325", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3018456 ], "year": 1982, "pin_cites": [ { "page": "833" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/107/0830-01" ] }, { "cite": "126 Ill. App. 3d 554", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3596610 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0554-01" ] }, { "cite": "348 Ill. App. 3d 906", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4022202 ], "year": 2003, "pin_cites": [ { "page": "913" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0906-01" ] }, { "cite": "226 Ill. App. 3d 820", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5239184 ], "year": 1992, "pin_cites": [ { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0820-01" ] }, { "cite": "305 Ill. App. 3d 45", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208079 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "50" }, { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0045-01" ] }, { "cite": "165 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483569 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "113" }, { "page": "114" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0107-01" ] } ], "analysis": { "cardinality": 904, "char_count": 19248, "ocr_confidence": 0.774, "pagerank": { "raw": 1.5088670757037657e-07, "percentile": 0.6670186176877494 }, "sha256": "916f41a26dcba2d57cc987a7385a5aeafb6f1c029b04315697844003cb0b5b50", "simhash": "1:5efaf5c61a633545", "word_count": 3217 }, "last_updated": "2023-07-14T16:18:02.423948+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DEBBIE TZAKIS, Plaintiff-Appellant, v. DOMINICK\u2019S FINER FOODS, INC., Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE REID\ndelivered the opinion of the court:\nThis appeal stems from a negligence action relating to injuries sustained in a slip and fall involving ice and snow in the parking lot of a grocery store. Following the granting of a motion for summary judgment in favor of Dominick\u2019s Finer Foods (Dominick\u2019s), Debbie Tzakis filed the instant appeal arguing that the trial court erred in granting summary judgment in the face of evidence presented to the court. Dominick\u2019s argues that Tzakis failed to present competent evidence sufficient to show that there was an unnatural accumulation of ice and snow. For the reasons that follow, we affirm the judgment of the trial court.\nBACKGROUND\nAfter a snowfall on or just before January 4, 2000, Tzakis slipped and fell on an accumulation of ice in a parking lot owned and maintained by Dominick\u2019s. Tzakis filed a personal injury lawsuit, claiming that Dominick\u2019s was negligent for causing and allowing an unnatural accumulation of snow, water or ice to occur in the parking lot near the front door of the grocery store. Dominick\u2019s answered the complaint, denying the substantive allegations and raising the affirmative defense of contributory negligence. On the same day, Tzakis propounded written discovery that, based upon Supreme Court Rule 213 (177 Ill. 2d R. 213) and Supreme Court Rule 214 (166 Ill. 2d R. 214), Dominick\u2019s was to answer within 28 days.\nOn December 20, 2001, Tzakis brought an emergency motion to compel Dominick\u2019s compliance with outstanding discovery. According to Tzakis, the purpose of the motion was to ascertain the identity of the company responsible for snow removal at the grocery store. By agreed order, the trial court gave Dominick\u2019s until December 27, 2001, to answer the discovery or be estopped from asserting that a third-party defendant is liable due to any agreement or contractual relationship for the maintenance of the premises. Dominick\u2019s thereafter identified Community Towing & Snow Plowing as the entity with which it contracted to remove the snow. It was later determined that the correct business name is Community Towing, Inc.\nTzakis testified in her deposition that she went to Dominick\u2019s on the day of the incident following snowfall she characterized as \u201cnot too heavy.\u201d Once the snow had stopped falling, Tzakis drove to Dominick\u2019s for lunch. She testified that there was snow on the ground when she arrived but was not asked to clarify whether it was freshly fallen snow or snow that had been there from a previous snowfall. Tzakis testified that she arrived, parked the car, then slipped and fell as she tried to walk into the store. She slipped on the driveway portion of the parking lot, near the entrance.\nDominick\u2019s maintains that, in the time period immediately following the slip and fall, no pictures were taken of the area. Tzakis disputes this fact, claiming that she was first told that Dominick\u2019s had no photographs in its possession. She claims she was later told that an investigation was being made regarding the photographs. Finally, Tzakis was finally told that no photographs were found\nAt her deposition, Tzakis produced a photograph that Dominick\u2019s claims was taken one to two months after the fall. Tzakis explained that the photograph depicted the conditions on the day she fell. According to Dominick\u2019s, no other individual familiar with the case came forward to authenticate the photograph. Tzakis also testified that, when she arrived, there was snow and ice in the parking lot but it had been cleared from the driveway area.\nJohn Boudart was also deposed regarding this case. Boudart is the general manager of the Dominick\u2019s. He did not work at the store on the day of the fall. He testified that snow was removed by the third-party entity and piled up in the rear of the parking lot. Boudart also gave an opinion that, if there was any ice in the area where Tzakis slipped and fell, it would have naturally accumulated. Tzakis points out that Boudart was not present on the day of the fall and could, therefore, draw no conclusions regarding the condition of the snowfall on that date.\nLinda Mclnerney was subsequently deposed. She is employed as the customer service manager at that particular Dominick\u2019s location. Mclnerney testified that she had no independent recollection of the events of the day in question. However, she did testify that, when a person claims to have slipped and fallen, the store manager speaks with that person and prepares a written report. If the store manager is not on duty that day, Mclnerney explained that the highest ranking employee on duty prepares the report. In this case, Mclnerney prepared the incident report. Normal procedure is for photographs to be taken and appended to the report.\nOn August 5, 2003, Philip Johnson was deposed in connection with this lawsuit. He is the owner of Community Towing, Inc. (Community Towing). Community Towing was contracted several times to plow Dominick\u2019s various parking lots during the 1999-2000 winter. According to Johnson, he meets with the store managers before the winter starts to determine where to put the plowed snow and ice. His company is provided with blueprints of the subject parking lots to assist in the directions of where to pile the snow. According to Johnson, he was under instructions not to apply salt to the area unless directed by Dominick\u2019s to do so. On December 30, 1999, his company was asked to salt but not plow the subject parking lot. His company received $340 as payment. When Community Towing salts but does not plow an area, it makes no additional efforts to remove any melted ice. According to Johnson, no further snow removal was requested or performed until January 18, 2000. Johnson also testified that salt melts ice, leaving water in its place. Tzakis believes the application of salt without any snow removal should be treated by this court as evidence that Dominick\u2019s is aware of a tendency of ice to collect in the parking lot. Tzakis, therefore, disputes Dominick\u2019s interpretation that it had no actual or constructive notice of a problem with ice and snow in the parking lot.\nAccording to Dominick\u2019s, with the exception of Tzakis\u2019 testimony that it snowed on January 4, 2000, no evidence of climatological conditions for the period on or after January 4, 2000, was presented in this case. There is also no evidence that Dominick\u2019s had either actual or constructive notice of any problematic conditions within its parking lot.\nThe trial court entertained a fully briefed summary judgment motion filed by Dominick\u2019s. The trial court granted the motion, agreeing with Dominick\u2019s that Tzakis failed to introduce anything to show that there was an unnatural accumulation of ice and snow in the parking lot of the grocery store. The trial court ruled that any conclusion the jury might reach would be speculation. This appeal followed.\nANALYSIS\nTzakis argues on appeal that the trial court erred in granting summary judgment because there was sufficient evidence for a trier of fact to conclude that the ice upon which she stepped was not a natural accumulation. Tzakis maintains that, instead of a natural accumulation, she slipped on remnants of an effort made to melt ice by the application of salt to the area five days before the incident. Tzakis also asks this court to abrogate and reconsider the long-standing rule that a business owner is not responsible for naturally accumulated ice and snow. Tzakis believes that there is no positive public policy in allowing business owners to invite customers into their establishments and ignore the hazard the ice and snow poses when it accumulates.\nDominick\u2019s responds that the trial court was correct because Tzakis did not meet her burden of showing that she slipped on anything but a natural accumulation of ice and snow. All Tzakis presented to the trial court was her opinion and a photograph taken one or two months after the incident. Dominick\u2019s argues this is hardly indicia of improper plowing or maintenance. Dominick\u2019s also argues that the deposition testimony of Johnson, Boudart and Mclnerney contradicts Tzakis\u2019 unfounded assertion. Dominick\u2019s argues that Tzakis is asking this court to ignore established precedent in order to create a question of fact based upon mere speculation. According to Dominick\u2019s, the lack of climatological evidence for the time period in question seriously undercuts the plaintiffs case and supports the trial court\u2019s ruling. Dominick\u2019s contends that the lack of snow removal operations between December 30, 1999, and January 4, 2000, could also be explained by good weather. Though just as speculative, it could be that the parking lot cleared in that time, only to be snowed on during the snowfall on the day of the fall.\nAccording to Dominick\u2019s, Tzakis has presented nothing to justify a change in the law regarding natural accumulations of snow and ice. Dominick\u2019s maintains that, though Tzakis finds the result of the natural accumulation rule harsh in this case, it is the law. The existence of a natural accumulation rule does not protect a store owner from liability if there is evidence of negligence. Dominick\u2019s argues that this is not such a case, as the plaintiff has failed to meet her burden.\nIn reply, Tzakis argues there is a question of fact as to whether the ice and snow on the ground on the day she fell was a natural accumulation. Tzakis argues that the application of salt five days before the incident raises the inference of triable issues of fact. These are based on the idea that the defendant\u2019s agents melted the snow and ice which was allowed to refreeze, thereby creating a dangerous, non-natural condition. Tzakis argues this is supported by her uncontradicted testimony.\nSummary Judgment\n\u201cIn all appeals from the entry of summary judgment, we conduct a de novo review of the evidence in the record. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Summary judgment is appropriate where the pleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2 \u2014 1005(c) (West 2000); Bier v. Leanna Lakeside Property Ass\u2019n, 305 Ill. App. 3d 45, 50 (1999). \u2018Summary judgment is a drastic means of resolving litigation and should be allowed only when the right of the moving party is clear and free from doubt.\u2019 Bier, 305 Ill. App. 3d at 50. \u2018Therefore, where reasonable persons could draw divergent inferences from the undisputed material facts or where there is a dispute as to a material fact, summary judgment should be denied and the issue decided by the trier of fact.\u2019 Espinoza, 165 Ill. 2d at 114. If a party moving for summary judgment introduces facts which, if not contradicted, would entitle him to a judgment as a matter of law, the opposing party may not rely on his pleadings alone to raise issues of material fact. Hermes v. Fischer, 226 Ill. App. 3d 820, 824 (1992).\u201d Myers v. Levy, 348 Ill. App. 3d 906, 913 (2003).\nA plaintiff need not prove his or her case at a summary judgment hearing but must present facts to show the origin of the ice was unnatural or caused by the defendant. Gilberg v. Toys \u201cR\u201d Us, Inc., 126 Ill. App. 3d 554, 558 (1984), citing Technical Representatives, Inc. v. Richardson-Merrell, Inc., 107 Ill. App. 3d 830, 833 (1982), and Bakeman v. Sears, Roebuck & Co., 16 Ill. App. 3d 1065, 1070 (1974). \u201cIn an action for negligence, the plaintiff must set forth sufficient facts to establish a duty owed by defendants to the plaintiff, a breach of that duty and an injury proximately caused by the breach.\u201d Graf v. St. Luke\u2019s Evangelical Lutheran Church, 253 Ill. App. 3d 588, 591 (1993), citing Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 411 (1991).\n\u201cA property owner has no duty to remove a natural accumulation of snow and ice from his property; however, a property owner who voluntarily undertakes the removal of snow and ice can be subjected to liability where the removal results in an unnatural accumulation of snow or ice that causes injury to a plaintiff.\u201d Russell v. Village of Lake Villa, 335 Ill. App. 3d 990, 994 (2002), citing Nowak v. Coghill, 296 Ill. App. 3d 886, 893 (1998). Therefore, \u201c[i]n order to avoid summary judgment in a case such as this one, a plaintiff must allege sufficient facts for a trier of fact to find that defendants were responsible for an unnatural accumulation of water, ice or snow which caused plaintiffs injuries. (Finn v. Dominick\u2019s Finer Foods, Inc. (1993), 244 Ill. App. 3d 278, 281; Crane [v. Triangle Plaza, Inc., 228 Ill. App. 3d 325, 328 (1992)].) While there is generally no duty to remove natural accumulations of ice and snow, a voluntary undertaking may subject defendant to liability if it is performed negligently. (Wells v. Great Atlantic & Pacific Tea Co. (1988), 171 Ill. App. 3d 1012, 1017; Stiles v. Panorama Lanes, Inc. (1982), 107 Ill. App. 3d 896.) The mere removal of snow leaving a natural ice formation underneath does not constitute negligence. (Wells, 171 Ill. App. 3d at 1017-18; McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 549.) Liability will be imposed, however, where a plaintiff shows that an injury occurred as the result of snow or ice produced or accumulated by artificial causes or in an unnatural way, or by the defendant\u2019s use of the premises.\u201d McCann, 80 Ill. App. 3d at 548; Fitzsimons v. National Tea Co. (1961), 29 Ill. App. 2d 306, 318; Graf, 253 Ill. App. 3d at 591-92.\nThe trial court agreed with the defendant that Tzakis has failed to provide competent evidence of an unnatural accumulation of snow and ice. Tzakis argued that, \u201cif you put down salt and then it melts and then it freezes, that is not a natural accumulation of ice. That\u2019s unnatural. It has been manipulated by the effort to put down salt.\u201d Tzakis argues that a jury could conclude that the refreezing of melted ice, under these circumstances, was unnatural. However, in response to the trial court\u2019s questioning, plaintiffs counsel admitted that there was intervening snow five days after the salt was put down. Plaintiffs counsel argued that nothing was presented to show that snow accumulated on that day. However, Dominick\u2019s argued that, by more than mere speculation, the burden was on Tzakis to show an unnatural accumulation. The trial court, in ruling on the motion for summary judgement, made the following statement that explains its reasoning:\n\u201cWell, a clear driveway doesn\u2019t indicate \u2014 doesn\u2019t mean it\u2019s unnatural either. Just because a driveway has been cleared and not down to the pavement, doesn\u2019t mean \u2014 doesn\u2019t render it now an unnatural accumulation. It had to have done something negligently or there has to be a defect ***.\u201d\nTzakis argues that Dominick\u2019s, through the auspices of Community Towing, Inc., melted the ice that was allowed to refreeze. The salt was put down five days prior to the injury. While she admits that it snowed the morning of her fall before she left home for the grocery store, Tzakis argues her admission does not indicate that ice on the property was natural. When asked whether the whole parking lot was covered with snow and ice, Tzakis testified that \u201c[n]ot the whole parking lot. It\u2019s clean, but not complete clean. It look like someone cleaned little bit, you know, the \u2014 but not \u2014 no, no, not complete clean, because lot of \u2014 wherever the cars really has a lot of ice all over.\u201d Tzakis also looked at a photograph of the parking lot taken after the fact and testified that it was a \u201cfairly accurate representation of what the parking lot looked like *** the day of the accident.\u201d As a matter of law, this court has previously rejected Tzakis\u2019 argument, stating that the \u201cmere sprinkling of salt, causing ice to melt, although it may later refreeze, does not aggravate a natural condition so as to form a basis for liability on the part of the property owner.\u201d Harkins v. System Parking, Inc., 186 Ill. App. 3d 869, 873 (1989), citing Stiles v. Panorama Lanes, Inc., 107 Ill. App. 3d 896 (1982). Without a causal nexus between Dominick\u2019s actions and the creation of an unnatural accumulation of ice and snow, Tzakis\u2019 argument is insufficient to carry the day. Dominick\u2019s, through the efforts of Community Towing on December 30, did nothing as a result of the fresh snowfall. In fact, Dominick\u2019s evidently took no action relating to the condition of its parking lot until well after the date Tzakis fell. Additionally, there is nothing beyond speculation in the record to suggest that the presence of the ice when she fell was a direct result of the salting on December 30. Such speculation is simply not enough to create a genuine issue of material fact sufficient to survive a motion for summary judgment. We must conclude that the trial court was correct in granting summary judgment as a matter of law.\nNatural Accumulation Rule\nTzakis next argues that this court should depart from the longstanding natural accumulation rule. However, she provides no justifiable basis for such a change, other than her suggestion that it is a bad idea that allows business owners to avoid liability for the accumulation of ice and snow. This suggestion has been made and rejected in other cases such as Lapidus v. Hahn, 115 Ill. App. 3d 795, 801 (1983), Watson v. J.C. Penney Co., 237 Ill. App. 3d 976 (1992) (up to the legislature to make a change in the natural accumulation rule), and Gilberg, 126 Ill. App. 3d 554.\n\u201cThe 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. (Gehrman v. Zajac (1975), 34 Ill. App. 3d 164, 340 N.E.2d 184.) But the construction and maintenance of the landlord\u2019s premises are within his control. It is not imposing an undue burden on him to require him not to add to the difficulties facing Illinois residents from natural accumulations of ice and snow by permitting unnatural accumulations due to defective construction or improper or insufficient maintenance of the premises.\u201d Lapidus, 115 Ill. App. 3d at 801, citing Erasmus v. Chicago Housing Authority, 86 Ill. App. 3d 142 (1980), and McCann, 80 Ill. App. 3d 544.\nIn light of established precedent in this area of the law, and Tzakis\u2019 failure to present a compelling argument in her favor, we decline to depart from the natural accumulation rule.\nCONCLUSION\nIn light of the foregoing, the decision of the trial court to grant summary judgment is affirmed. We decline to reach Tzakis\u2019 remaining contentions.\nAffirmed.\nTHEIS and GREIMAN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE REID" } ], "attorneys": [ "Law Offices of Richard M. Craig, PC., of Chicago (Richard M. Craig, of counsel), for appellant.", "McCullough, Campbell & Lane, of Chicago (Patrick M. Graber and Veronica Nulman, of counsel), for appellee." ], "corrections": "", "head_matter": "DEBBIE TZAKIS, Plaintiff-Appellant, v. DOMINICK\u2019S FINER FOODS, INC., Defendant-Appellee.\nFirst District (4th Division)\nNo. 1\u201404\u20140261\nOpinion filed March 24, 2005.\nLaw Offices of Richard M. Craig, PC., of Chicago (Richard M. Craig, of counsel), for appellant.\nMcCullough, Campbell & Lane, of Chicago (Patrick M. Graber and Veronica Nulman, of counsel), for appellee." }, "file_name": "0740-01", "first_page_order": 758, "last_page_order": 766 }