Should I Shovel the Snow or Leave It?

Living in Chicago and other cold weather cities means lawyers face that annual question this time of year: should I shovel the snow on my sidewalk or am I better off to just leave it?

Although Illinois law appears to be relatively straightforward on the issue, each case turns on the facts, with its own twists and turns, no pun intended.

A property owner generally is not under a duty to remove a natural accumulation of snow and ice from property, but one who voluntarily undertakes its removal can be subject to liability where he does so negligently (McBride v. Taxman Corp., 327 Ill.App.3d 992, 996, 765 N.E.2d 51(1st Dist.2002)) or if it results in an unnatural accumulation of snow or ice or aggravates a natural condition. Russell v. Village of Lake Villa, 335 Ill.App.3d 990,782 N.E.2d 906 (2d Dist.2002). This so-called natural accumulation rule has been codified in the Snow and Ice Removal Act, 745 ILCS 75/2 (2006). The legislation is based on the public policy of encouraging property owners to clear public sidewalks adjacent to their property.

Section 1 of the Act declares that “owners and others residing in residential units be encouraged to clean the sidewalks abutting their residences of snow and ice.” It also provides that it is “undesirable” for someone to be found liable for doing so unless it amounts to wilful or wanton wrongdoing.

Generally, the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/3-105(a)(2008) codifies the natural accumulation rule for governmental entities. It provides that “[n]either a local public entity nor a public employee is liable for an injury caused by the effect of weather conditions ... on ... public ways,” although public entities are still subject to a duty of exercising ordinary care in the maintenance of its property under 745 ILCS 10/3-102 of the Act. Ziencina v. Cook County, 188 Ill.2d 1, 719 N.E.2d 739 (1999). It should be noted that many states have decided that the so-called natural accumulation rule is no longer valid. Watson v. J.C. Penney Co., 237 Ill.App.3. 976, 605 N.E.2d 723, 725 (4th Dist.1992) observed that Alaska, Maine and Michigan, three very snowy states I might add, have overruled the natural accumulation rule. Further, in Smalling v. LaSalle National Bank, 104 Ill.App.3d 894, 433 N.E.2d 713, 715 (4th Dist.1982), the court observed that other states such as Colorado and Oregon have abandoned the rule altogether. A majority of states apply a due care rule.

In Illinois, some courts have recognized the trend to abandon the natural accumulation rule not only because of its archaic foundation but also because of the difficulty in determining the difference between a natural and unnatural accumulation of ice and snow. Although the majority in Watson found that any change in the law would be up to the legislature, Justice James Knecht wrote in his dissent that leaving a jury to decide the parties’ reasonableness of actions “would not impose any greater burden than already [is] imposed on defendants” and he added that “this would simply be a return to traditional analysis no longer skewed by a special exception that has no meaningful basis in law or public policy.”

Landowners generally have a duty to maintain their property in a reasonably safe condition. In Schoondyke v. Heil, Heil, Smart & Golee, Inc., 89 Ill.App.3d 640, 411 N.E.2d 1168 (1st Dist.1980), the court found liability after the plaintiff fell and was injured due to the failure of the defendant, a condominium association, to shovel after a reasonable amount of time had elapsed following a snowfall.

Summary judgment often is denied in snow and ice accumulation cases in making a determination of liability because many factual issues arise. Many courts rely on a jury to determine on a case-by-case basis what constitutes a natural or artificial accumulation of ice or snow. Notice of a dangerous condition certainly is an important element in any premises liability case. How long the condition existed, the existence of handrails, alternate routes, inspection procedures and prior falls or complaints of the condition also are critical in these types of cases. Poorly maintained sidewalks may add to the notion of snow and ice conditions.

In some towns, ordinances require landowners to remove ice and snow from public sidewalks in front of their property, but courts have struggled with imposing such legal duties. Klikas v. Hanover Square Condo. Association, 240 Ill.App.3d 715, 608 N.E.2d 541 (1st Dist.1992).

In Chicago, Municipal Code Section 10-8-180 (2002) says that under certain circumstances, “Every owner, lessee, tenant, occupant, or other person having charge of any building or lot of ground in the city abutting upon any public way or public place shall remove the snow and ice from the sidewalk in front of such building or lot of ground.” In Chicago it is also common to see people shoveling a public street and then using chairs or other items to protect that coveted parking spot in the winter. With falls being the number one cause of fatal injuries among older adults, according to the federal Centers for Disease Control and Prevention, it’s probably better to shovel, and scattering some salt may not be a bad idea either.