{ "id": 2525872, "name": "Dolores Cupp, Plaintiff-Petitioner, v. Walter R. Nelson et al., Defendants-Respondents", "name_abbreviation": "Cupp v. Nelson", "decision_date": "1972-03-30", "docket_number": "No. 55061", "first_page": "37", "last_page": "42", "citations": [ { "type": "official", "cite": "5 Ill. App. 3d 37" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "230 N.E.2d 80", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "86 Ill.App.2d 289", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2551124 ], "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/86/0289-01" ] }, { "cite": "191 N.E.2d 622", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "626" } ], "opinion_index": 0 }, { "cite": "42 Ill.App.2d 192", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5248685 ], "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/42/0192-01" ] }, { "cite": "217 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "70 Ill.App.2d 390", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2588869 ], "year": 1963, "pin_cites": [ { "page": "392" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/70/0390-01" ] }, { "cite": "185 N.E. 217", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1966, "pin_cites": [ { "page": "219" } ], "opinion_index": 0 }, { "cite": "352 Ill. 51", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5296166 ], "year": 1966, "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/ill/352/0051-01" ] }, { "cite": "190 N.E.2d 522", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "41 Ill.App.2d 307", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2453182 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0307-01" ] }, { "cite": "26 N.E.2d 632", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "642" } ], "opinion_index": 0 }, { "cite": "304 Ill.App. 302", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3309268 ], "pin_cites": [ { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/ill-app/304/0302-01" ] }, { "cite": "40 N.E.2d 500", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "502" } ], "opinion_index": 0 }, { "cite": "379 Ill. 273", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2552010 ], "pin_cites": [ { "page": "277" } ], "opinion_index": 0, "case_paths": [ "/ill/379/0273-01" ] }, { "cite": "123 N.E.2d 151", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "3 Ill.App.2d 481", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5127696 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/3/0481-01" ] }, { "cite": "109 N.E.2d 352", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "pin_cites": [ { "page": "356" } ], "opinion_index": 0 }, { "cite": "348 Ill.App. 448", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5098102 ], "year": 1954, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/ill-app/348/0448-01" ] }, { "cite": "236 N.E.2d 572", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "94 Ill.App.2d 215", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2478116, 2478447 ], "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/94/0215-01", "/ill-app-2d/94/0215-02" ] }, { "cite": "266 N.E.2d 708", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "711" } ], "opinion_index": 0 }, { "cite": "188 N.E.2d 383", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "39 Ill.App.2d 217", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2456306 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-2d/39/0217-01" ] }, { "cite": "115 N.E.2d 288", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "pin_cites": [ { "page": "290" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 652, "char_count": 11241, "ocr_confidence": 0.732, "pagerank": { "raw": 7.893276111092402e-08, "percentile": 0.4604583124344315 }, "sha256": "de92959b45ea8fdea0a7e4c69dada4935604e91d9b91459abda8cd27e686e25a", "simhash": "1:1ec050d79607979e", "word_count": 1860 }, "last_updated": "2023-07-14T19:05:48.814564+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Dolores Cupp, Plaintiff-Petitioner, v. Walter R. Nelson et al., Defendants-Respondents." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE LORENZ\ndelivered the opinion of the court:\nPlaintiff brought this action to recover for personal injuries suffered as a result of a fall on defendants\u2019 property. A jury verdict in the amount of $16,000 was returned in her favor and judgment was entered on that verdict. Subsequently, after a hearing on defendants\u2019 post-trial motion, the court vacated the verdict and judgment and granted defendants a new trial. Pursuant to Supreme Court Rule 306 plaintiff petitioned for and was granted leave to appeal to this court.\nOn appeal plaintiff contends that the court erred in allowing defendants\u2019 post-trial motion. Specifically, she urges, in contradistinction to the belief of the trial judge at the time he vacated the verdict and judgment, that the jury was properly instructed and that there was no other ground upon which a new trial could have been granted.\nIn her complaint plaintiff alleged in substance that on December 12, 1963, she was a tenant in an apartment building owned and controlled by defendants; that she was in the exercise of ordinary care and caution for her own safety; that the defendants had a duty to maintain the premises in a reasonably safe condition so as to avoid injury to persons egressing from said building; that defendants were careless and negligent in several respects including their allowance of ice and snow to remain on the outside stairway, their maintenance of the outside stairway in an icy and slippery condition, and their failure to properly place abrasive materials on tire outside stairway and that plaintiff slipped, fell and was injured as a direct and proximate result of defendants\u2019 negligence. Specifically, it was alleged that defendants were negligent in covering some but not all of the steps with rock salt. Defendants\u2019 answer, inter alia, admits that they owed plaintiff the duty of maintaining the premises in a reasonably safe condition to avoid injury to persons egressing from the building.\nThe following summary of evidence relates only to the facts surrounding plaintiff\u2019s injury as no question is raised on appeal with respect to the nature and extent of her injuries.\nOn December 12, 1963, plaintiff lived at 6717 North Sheridan Road in Chicago. At approximately 8:15 A.M. she, while wearing boots with flat heels, left the apartment with her mother. They proceeded to the top of the outside stairs where they noticed that, although snow had fallen the night before, the porch and stairs had been swept clear of all but traces of snow with ice underneath and that rock salt had been scattered on the porch and steps. The two women then proceeded down the stairs with plaintiff\u2019s mother on the far left-hand side holding the cement railing and the plaintiff near the center of the stairs supporting her mother. The two women walked down the stairs one step at a time, and as they proceeded they noticed the footing was \u201ccrunchy.\u201d As they placed their feet on the last stair plaintiff slipped and fell backwards, striking her arms and back against the stairs. After plaintiff fell, she noticed that the last stair was smooth with ice and bore no evidence of rock salt.\nPlaintiff\u2019s evidence relating to the presence of ice and snow on the stairs was controverted both by the testimony of the janitor of the building who stated that shortly after 6:30 A.M. the steps were cleared of all snow, moisture and ice were completely clear of snow when he went to work at approximately 7:45 A.M. Additionally, defendant himself testified that he inspected the stairs at approximately 9:30 A.M. and found them to be free of snow and ice. Defendant did, however, testify that rock salt was kept for the janitor\u2019s use in clearing ice but that the janitor was instructed to use the salt \u201csparingly.\u201d After judgment on the jury\u2019s verdict was entered, defendants moved for a new trial.\nIn granting the new trial the judge indicated that he believed he had erred in refusing to give the following instruction tendered on behalf of defendants (identified throughout the briefs as defendants\u2019 Instruction No. 1):\n\u201cIt is the law in Illinois that a property owner is not liable for injury sustained by a tenant in a fall on an icy walk maintained by the property owner for the use of his tenants where the condition is a natural one and not caused or aggravated by the property owners; however, a property owner may be liable for injury sustained by a tenant who falls and is injured as a result of snow and ice which did not accumulate from natural causes but as a result of the property owner doing something which causes an unnatural or artificial accumulation of the ice and snow.\nMere removal of snow which may leave a natural ice formation remaining on the premises does not of itself constitute negligence. Whether or not the defendant in his removal of the snow caused or aggravated the condition of these premises is for you to decide.\u201d\nOpinion\nThe often repeated standard for use in determining liability in ice and snow cases is that a property owner is not hable for injuries sustained as a result of a natural as opposed to an unnatural accumulation of ice and snow. (See generally Riccitelli v. Sternfeld (1953), Ill.2d 133, 135, 115 N.E.2d 288, 290; Zide v. Jewel Tea Co. (1963), 39 Ill.App.2d 217, 222 \u2014 223, 188 N.E.2d 383, 385 \u2014 386 and Byrne v. Catholic Bishop of Chicago (1971), (Ill.App.2d), 266 N.E.2d 708, 711.) But, where the property owner attempts to remove the natural accumulations of snow he is charged with the duty of exercising ordinary care in accomplishing his task. (Sims v. Block (1968), 94 Ill.App.2d 215, 222, 236 N.E.2d 572, 575.) It has been unsuccessfully urged in some ice and snow cases that the existence of a landlord-tenant relationship between the defendant and plaintiff creates a duty on the part of the landlord to clear common passageways of the natural accumulations of ice and snow. See Cronin v. Brownlie (1952), 348 Ill.App. 448, 456, 109 N.E.2d 352, 356. But see Durkin v. Lewitz (1954), 3 Ill.App.2d 481, 486 \u2014 491, 123 N.E.2d 151, 154 \u2014 157.\nIn either instance, whether plaintiff bases her claim for recovery on defendants\u2019 creation of an unnatural accumulation of ice and snow or upon the landlord-tenant relationship, plaintiff must, as a prerequisite to recovery, establish that defendants owed her a duty which was breached. In the instant case, however, it is unnecessary for us to further analyze the ice and snow cases to determine whether or not plaintiff herein had established the requisite duty, as defendants, in their answer, admitted that it was their duty to maintain the premises in a reasonably safe condition so as to avoid injury to plaintiff as she egressed from the building. AdditionaUy, plaintiff's instruction number nine, to which no objection was raised, stated:\n\u201cIt was the duty of Defendants, WALTER R. NELSON and WENDLA NELSON, in undertaking to remove ice and/or snow from the outside stairway to use ordinary care to avoid causing injury to the tenants in the building including the Plaintiff, DOLORES CUPP, herein.\u201d\nThus, the only issues remaining for the jury to determine related to whether or not defendants had been negligent in carrying out that duty by the manner in which the rock salt was spread on the steps.\nTherefore, it would have been improper for the court to have given defendants\u2019 instruction number one to the jury for it related almost entirely to the question of liability resulting from injuries incurred as a result of a fall on a natural as opposed to an unnatural accumulation, or with the removal of snow, which also was not an issue in the case. Paragraph two of the instruction, the only part which related to the question of negligence pertinent to this case, was already adequately covered by other instructions. We believe that when the instructions are considered as a whole, as they should be, they properly and adequately instruct the jury in this case.\nThus, the trial court did not err when it originally refused defendants\u2019 instruction number one, but the court did abuse its discretion when it granted a new trial premised on this alleged error.\nAlternatively, defendants urge that the order granting a new trial should be affirmed on the ground of the alleged improper actions of plaintiffs counsel, in calling the jury\u2019s attention to the fact that insurance may have been involved in the case. While it is improper for plaintiff to inform the jury that defendants are insured against liability on a judgment that may be entered against them, (see generally Kavanaugh v. Parret (1942), 379 Ill. 273, 277, 40 N.E.2d 500, 502, any references to insurance in the instant case did not necessitate the granting of a new trial.\nIn pursuit of their argument, defendants cite five instances wherein they contend that the jury\u2019s attention was improperly directed to the proposition that the accident may have been covered by insurance. Examination of those instances reveals that the first mention of insurance was made through direct examination of a defense witness (defendants\u2019 son) by defense counsel. (See generally, Cooper v. Safeway Lines, Inc. (1940), 304 Ill.App. 302, 325, 26 N.E.2d 632, 642.) The second instance arose from a series of questions asked by plaintiff\u2019s attorney during cross-examination of defendants\u2019 son but no objections were raised thereto thus not preserving the issue for review. (See Pomrenke v. Betzelberger (1963), 41 Ill.App.2d 307, 315 \u2014 316, 190 N.E.2d 522, 527.) The third instance arose also on cross-examination of defendants\u2019 son as a result of a non-responsive answer to a legitimate question. (See Williams v. Consumers Co. (1933), 352 Ill. 51, 55, 185 N.E. 217, 219; Schaffer v. Dorsey (1966), 70 Ill.App.2d 390, 392, 217 N.E.2d 19, 20 and Stewart v. DuPlessis (1963), 42 Ill.App.2d 192, 199, 191 N.E.2d 622, 626.) The final two aUeged improper references to insurance came during plaintiff\u2019s attorney\u2019s rebuttal argument, but because those remarks were equivocal and made only in response to argument by defense counsel no reversible error resulted. (See generally Pomrenke v. Betzelberger, supra.) Additionally, the jury was instructed to consider tire argument of counsel only to the extent that it was founded upon evidence.\nIn considering all of the matters raised by defendants in this regard either singly or together we fail to find calculated and repeated attempts on the part of plaintiff\u2019s counsel to elicit comments about insurance for the purpose of prejudicing the jury against defendants thereby necessitating a new trial. Williams v. Consumers Co., supra, and Fitzgerald v. Brown (1987), 86 Ill.App.2d 289, 293, 230 N.E.2d 80, 82.\nThe order granting defendants\u2019 motion for a new trial is reversed, and the cause is remanded with directions to enter judgment on the verdict of the jury.\nReversed and remanded with directions.\nDRUCKER and ENGLISH, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE LORENZ" } ], "attorneys": [ "Blumenthal & Schwartz, of Chicago, (William Greene and Richard Lee Stavins, of counsel,) for petitioner.", "Rizzi & Greenfield, of Chicago, (Dom J. Rizzi and Frank M. Greenfield, of counsel,) for respondents." ], "corrections": "", "head_matter": "Dolores Cupp, Plaintiff-Petitioner, v. Walter R. Nelson et al., Defendants-Respondents.\n(No. 55061;\nFirst District\nMarch 30, 1972.\nBlumenthal & Schwartz, of Chicago, (William Greene and Richard Lee Stavins, of counsel,) for petitioner.\nRizzi & Greenfield, of Chicago, (Dom J. Rizzi and Frank M. Greenfield, of counsel,) for respondents." }, "file_name": "0037-01", "first_page_order": 59, "last_page_order": 64 }