THIRD DIVISION

JANUARY 30, 2002

No 1-01-1166

Plaintiff, Grace McBride, alleged in her complaint that shefell on snow and ice outside the entrance to the Walgreens storewhere she was employed, on January 27, 1996. She appeals fromthe entry of summary judgment in favor of defendant The TaxmanCorporation, the property manager of the shopping center wherethe Walgreens store was located, and defendant Arctic Snow andIce Control, Inc., the snow-removal contractor. We affirm.

Plaintiff's complaint also named as defendants AmericanNational Bank & Trust Company of Chicago, as trustee under trustdated February 15, 1983; Walgreen Company; and Kedzie PlazaAssociates, the owner of the shopping center.

Count I was brought against Taxman. Prior to January 27,1996, Walgreens had entered into a lease with Taxman for theoperation of a drug store. Pursuant to the lease, Taxman agreedto promptly remove snow and ice from sidewalks. It was allegedthat Taxman negligently allowed the accumulation of ice and snowin areas of pedestrian travel, negligently failed to remove theaccumulation of ice and snow in areas of pedestrian travel, andnegligently failed to properly maintain the sidewalks andwalkways around the drug store so that it would be safe for useby plaintiff.

Count II was brought against Arctic. Plaintiff alleged thatTaxman had an agreement with Arctic to remove ice and snow fromthe sidewalk areas surrounding the Walgreens store. Plaintiffalleged that Arctic negligently failed to properly remove snowand ice from the sidewalks and walkways around the store,negligently created unnatural accumulations of snow and ice, andnegligently failed to salt or otherwise treat the ice on thesidewalks and walkways.

Plaintiff settled with Kedzie Plaza Associates and withWalgreens, and counts IV and V were dismissed.

In the Walgreen lease, in a paragraph captioned "parking,"Kedzie Plaza Associates agreed to remove snow and ice:

"It is an express condition of this lease that atall times during the continuance of this lease,Landlord shall provide, maintain, repair, adequatelylight when necessary during Tenant's business hours,clean, promptly remove snow and ice from, supervise andkeep available the Parking Areas as shown on saidattached plan (which Parking Areas shall provide forthe parking of at least 290 automobiles), and alsoadequate service and [sic] receiving areas, pedestrianmalls, sidewalks, curbs, roadways and other facilitiesappurtenant thereto." (Emphasis added.)

On October 10, 1995, Taxman signed, on behalf of the owner,Arctic's one-page "Snow Removal Proposal & Contract" (althoughdated August 7, 1995), for the term November 15, 1995, throughApril 15, 1996, for the shopping center where this Walgreensstore was located. The contract contained a disclaimer for ice-related accidents.

Also on October 10, 1995, Arctic and Taxman signed a multi-page document dated October 3, 1995, that was apparently draftedby Taxman. The document was not given a title but containedseveral pages of terms concerning snow removal "per contract(s)attached." The document stated that "all sidewalk areas shallbe completely cleared of ice and snow from end-to-end."

Plaintiff testified at her deposition that she fell on iceand snow on the sidewalk near the entrance to Walgreens. Shethought the ice had been there for about a week. She did notknow how the ice had formed.

Taxman and Arctic moved for summary judgment arguing thatTaxman was responsible only for managing the property and thatproperty managers and snow-removal contractors owed no duty tothe general public to remove natural accumulations of ice andsnow. They also argued that plaintiff had not come forward withevidence that the ice upon which she fell was anything other thana natural accumulation.

The trial court granted summary judgment in favor of Taxmanand Arctic, and plaintiff appealed. The appeal was dismissed forlack of jurisdiction because one defendant, American NationalBank & Trust, had not been dismissed and because the orderappealed from did not contain Supreme Court Rule 304(a) language(155 Ill. 2d R. 304(a)). On remand, the bank was dismissed as a defendant, and plaintiff appealed again.

Plaintiff argues that the contract between Taxman and Arcticcreated a duty of Taxman to remove snow and ice for the benefitof plaintiff. Plaintiff characterizes Arctic as Taxman's agent.

A motion for summary judgment is to be granted if "thepleadings, depositions, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgmentas a matter of law." 735 ILCS 5/2--1005 (West 2000). Thereviewing court's function is to determine de novo whether theentry of summary judgment was correct as a matter of law. Catesv. Cates, 156 Ill. 2d 76, 78, 619 N.E.2d 715 (1993).

The Arctic proposal and contract was signed "KedzieAssociates by the Taxman." The Taxman-drafted portion of thecontract contained a line above the signature of Taxman'sdirector of property management stating "The Taxman Corporation,agent for per contracts attached." The latter documentspecifically stated that the contract was not an obligation ofTaxman and that all liabilities were those of the owner and notTaxman. We conclude that Taxman was the management company forthe property owner and entered into the two contracts for snowand ice removal only as the owner's agent.

Taxman did not assume a contractual obligation to removesnow or ice; it merely retained Arctic as a contractor on behalfof the owner. See Grover v. Commonwealth Plaza CondominiumAss'n, 76 Ill. App. 3d 500, 507, 394 N.E.2d 1273 (1979)(generally, agent whose agency is disclosed is not liable onagreement entered into on behalf of his principal). Plaintiffhas not cited any contrary authority.

Plaintiff also argues that Taxman could be liable forArctic's negligence because paragraphs 16 and 22 of the contractgave to Taxman a high degree of control as to how the snow andice removal was to be accomplished.

Under paragraph 16, Taxman would withhold the final paymentuntil the property had been examined for evidence of damage dueto Arctic's conduct:

"It is agreed and understood that the final payment tothe snow removal firm will be held until the premiseshave been examined by a representative of The TaxmanCorporation, along with a representative of the snowremoval firm. If any repairs are necessary due todamage by the snow removal firm, said final paymentwill not be released by The Taxman Corporation untilall such repairs have been accomplished to thesatisfaction of and acceptance by The TaxmanCorporation. Upon completion (and approval of saidrepairs by The Taxman Corporation) payment will beauthorized and disbursed within thirty (30) days aftersuch inspection and acceptance by The TaxmanCorporation."

Under paragraph 22, written notification after chemicalapplications or other services was to be given to Taxman forTaxman's verification:

"Written notification will be left at the job siteafter each chemical application and/or otherservices for The Taxman Corporation's verification(at a place designated by The Taxman Corporation),or, if so requested, contractor shall forward suchnotification to The Taxman Corporation via U.S.Mail (at or before time invoice for such servicesis rendered). (See Exhibit D - The TaxmanCorporation will provide these forms on request orcontractor may photocopy Exhibit B for such use."

Paragraphs 16 and 22 do not provide for Taxman's control ofArctic's performance. Paragraph 16 gave Taxman only the abilityto withhold the final payment if damage caused by Arctic wasdiscovered. Paragraph 22 only gave Taxman the ability to verifywritten notification of the performance of services. Taxman wasnot given supervisory powers over when and how snow removal wasperformed.

We hold that Arctic was not Taxman's agent and that thetrial court did not err in entering summary judgment in favor ofTaxman.

Plaintiffs next argue that Arctic had a contractualobligation to remove snow and ice and is liable to plaintiff fornegligent snow and ice removal.

In the absence of a contractual obligation, there isgenerally no duty to remove natural accumulations of ice or snow. Eichler v. Plitt Theatres, Inc., 167 Ill. App. 3d 685, 689, 521N.E.2d 1196 (1988). A landowner may be liable if theaccumulation was caused or aggravated by him. Wells v. GreatAtlantic & Pacific Tea Co., 171 Ill. App. 3d 1012, 1017, 525N.E.2d 1127 (1988). A landowner's voluntary undertaking toremove snow and ice may subject him to liability if removal isperformed negligently. Wells, 171 Ill. App. 3d at 1017.

There have been cases in which a duty to third parties hasbeen imposed on the snow-removal contractor, but the duty wasonly not to negligently remove snow by creating or aggravating anunnatural accumulation of snow or ice. E.g., Madeo v. Tri-LandProperties, Inc., 239 Ill. App. 3d 288, 606 N.E.2d 701 (1992)(snow-removal contractor could be liable to grocery storecustomer who fell in adjacent parking lot for either creating anunnatural accumulation of ice or snow or for aggravating anatural accumulation of ice or snow); Crane v. Triangle Plaza,Inc., 228 Ill. App. 3d 325, 330, 591 N.E.2d 936 (1992) (duty ofsnow-removal contractor to customer of parking lot was to performsnow removal in a nonnegligent fashion; to show breach plaintiffshad to show that contractor caused an unnatural accumulation ofice); McCarthy v. Hiddenlake Condominium Ass'n, 186 Ill. App. 3d752, 758, 542 N.E.2d 868 (1989) (snow-removal contractor could beliable to condominium resident for defective plowing creatingunnatural accumulation where condominium association contractedfor snow plowing); Wells v. Great Atlantic & Pacific Tea Co., 171Ill. App. 3d 1012, 1018-19, 525 N.E.2d 1127 (1988) (snow-removalcontractor hired by grocery store had duty to plaintiff, who wasnot identified in the opinion as a customer or otherwise and whofell in the parking lot, only to abstain from negligence; storewas under no contractual obligation to remove snow, andcontractor's obligation was owed only to the store); Burke v.City of Chicago, 160 Ill. App. 3d 953, 957, 513 N.E.2d 984(1987) (snow-removal contractor hired by city, which leasedportion of airport to airline, could only breach duty to airlineemployee, who fell on ice at airport after snow was plowed, bycausing an unnatural accumulation or by negligently plowing).

The above cases did not find that a snow-removal contractorcould be liable to third parties for the failure to perform snowremoval--as opposed to performing an affirmative act that createsor aggravates an unnatural accumulation of snow or ice.

Schoondyke v. Heil, Heil, Smart & Golee, Inc., 89 Ill. App.3d 640, 411 N.E.2d 1168 (1980), is a case that involved thefailure to plow snow. The defendants, who included a condominiumassociation, a homeowners' association, and two corporationswhose functions were not identified in the opinion, were held toowe a duty to plaintiff, a nonowner occupant of a condominium,who fell on unplowed snow on the premises of a condominiumbuilding. The court stated that the lack of a direct contractualrelationship between plaintiff and defendant was not a defensebecause tort liability was measured by the scope of the duty andnot by concepts of privity. Schoondyke, 89 Ill. App. 3d at 643. Because plaintiff in Schoondyke fell on unplowed snow andwas not injured due to negligent plowing, Schoondyke isdistinguishable from the cases cited earlier. However, it is notclear whether one of the corporate defendants in Schoondyke was asnow-removal contractor. Therefore, the case cannot beconsidered to have expanded the liability of snow-removalcontractors.

Plaintiff has not cited any cases holding that a snow-removal contractor has a duty to third parties to its contract toremove natural accumulations of snow and ice. Under the snow-removal contractor cases, because there was no evidence that thesnow and ice upon which plaintiff slipped unnaturally accumulateddue to Arctic's conduct, Arctic cannot be liable to plaintiff.

Also in this case there was no evidence as to the height ofthe snow. Arctic, under the snow-removal contract, was notobligated to remove any snow until the snow reached a specificheight. Without evidence of the height of the snow, Arctic wasnot obligated to perform snow-removal services for Kedzie PlazaAssociates. We find that under the facts of this case Arctic hadno duty to remove snow and ice.

It is unnecessary to reach the issue whether Arctic'sdisclaimer was effective to bar plaintiff's claim.

We hold that summary judgment was properly entered in favorof Arctic.

The judgment of the trial court is affirmed.

Affirmed.

WOLFSON, and SOUTH, JJ., concur.