As published in The Chicago Daily Law Bulletin
Arsenic is 100% “natural.”
Don’t eat it.
Natural doesn’t mean it’s good for you. Tobacco and asbestos kill while many unnatural substances sustain and cure.
In most human concerns, natural doesn’t mean much. The question is usually, is it safe? Is it good?
Arsenic is 100% “natural.”
Don’t eat it.
Natural doesn’t mean it’s good for you. Tobacco and asbestos kill while many unnatural substances sustain and cure.
In most human concerns, natural doesn’t mean much. The question is usually, is it safe? Is it good?
Not in law, of course. In Illinois, we have IPI 125.04, the “natural” accumulation rule for disputes over liability for falls on snow and ice. We’ve had this strange instruction so long we take it for granted. Why?
Under IPI 125.04, injury from a natural accumulation of snow and ice is not actionable. A claimant must prove the accumulation to be unnatural.
Under this rule, a store owner might pull up a chair outside his store and sit and laugh at customers falling one after another on black ice. So long as the ice is natural there might be no liability.
Unsurprisingly, the rule came from states that suffer cold weather. It’s called the Massachusetts rule. Or rather, wasthe Massachusetts Rule.
Eight years ago, in Papadopoulos v. Target Corp., 930 N.E. 2d 142 (2010), the Massachusetts Supreme Court repealed the rule. In doing so the Court quoted with approval a Rhode Island decision which held: “We believe that today a landlord, armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower, can acquit himself quite admirably as he takes to the common passageways to do battle with the fallen snow, the sun-melted snow now turned to ice, or the frozen rain.” Fuller v. Housing Auth. Of Providence, 279 A. 2d 438 (1971).
The Massachusetts Court found the distinction between natural and unnatural was not based on proper considerations and generated “specious guidelines which obscure rather than illuminate the relevant factors which should govern determination of the question of duty” (quoting Mounsey v. Ellard, 363 Mass. 693(1973)).The Court reviewed the difficulties in trying to apply the rule.
At the end of the day, the Court saw no reason to exempt property owners from their duty to exercise reasonable care regardless of the naturalness of the hazard. A property owner’s duty is determined by a finder of fact considering what efforts are reasonable in light of the expense they impose on the landowner and the probability and seriousness of the foreseeable harm to others.
“The snow removal reasonably expected of a property owner will depend on the amount of foot traffic to be anticipated on the property, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal therefore, while an owner of a single-family home, an apartment house owner, a store owner, and a nursing home operator each owe lawful visitors to their property a duty of reasonable care, what constitutes reasonable snow removal may vary among them.”
Just eleven days before the Massachusetts Supreme Court’s decision in Papadopulos, our supreme court decided Krywin v. Chi. Transit Auth., 938 N.E.2d 440 (2010) upholding the appellate court’s reversal of a $372,141.00 verdict for a plaintiff who fell on a snowy train platform. The natural accumulation rule took priority even over the rule holding common carriers to the highest degree of care.
The court reviewed caselaw and acknowledged the dangers posed by natural accumulations, but found “the imposition of an obligation to remedy those conditions would be so unreasonable and impractical as to negate the imposition of a legal duty to do so.” The court firmly upheld the rule. The CTA had no duty to remove natural accumulations of snow and ice from its platform and no duty to warn of them.
Justice Freeman dissented, saying he would hold that the common carrier’s standard of care supersedes the natural accumulation rule. Justice Kilbride joined that dissent.
Then, dissenting more strongly in the denial of rehearing after Papadopoulos, the same justices noted Massachusetts’ abandonment of the Rule. Justice Freeman wrote that by denying rehearing the court missed another opportunity “to explain why it insists on perpetuating a rule that is obsolete and no longer has a basis in modern Illinois tort law.”
Our Supreme Court considered, but did not confront, the rule in Murphy-Hilton v. Lieberman Management Services, Inc., 2016 IL 120394 and every day our trial and appellate courts look for ways not to have to figure out what makes an accumulation unnatural. Many of the decisions are unpublished.
Allen v. Cam Girls, LLC,2017 IL App (1st) 163340 reiterated the options. If a plaintiff shows an unnatural accumulation, recovery is possible. Unnatural seems to suggest some sort of human interaction, like faulty drainage. If it is a natural accumulation, plaintiff still has a few possibilities.
Illinois cases, the opinion concludes, are split on whether a contractual obligation might enable a claim from a natural accumulation. For example, cases found condo bylaws or a tenant handbook created the obligation to remove even natural accumulations. Another exception may be where Plaintiff shows the landowner voluntarily undertook removal of snow or ice but did so negligently.
In these cases, if the landowner did something negligent, he can be liable even if the accumulation is natural.
In Cam Girls,none of it mattered because the plaintiff couldn’t establish what she slipped on. Plaintiff always has to prove causation and very often cannot. Plaintiff also has to show all other elements of a premises case which set out very strong defenses. Further protection is given by the Snow and Ice Removal Act, 745 ILCS 75/1 (2012).
In trying to define unnatural, cases discuss drainage, leakage, dripping, migration, snow piles, freezing, refreezing, runoffs, slope, depression, safe ingress and egress, and melting snow or rain brought or tracked inside, but no one has effectively defined unnatural. More important, no one has shown why it matters.
The seeming assurance to Illinois landowners is, if you did nothing to cause it, be sure you don’t do anything to make it safer. Better to let people get hurt no matter how serious the problem or how easily solved. Natural is OK, whatever natural may mean.
But the basic contradiction is that nothing humans build is natural. And there is nothing natural about precipitation accumulating on something someone built. That means the most confident owner/occupier may be very surprised to find out they un-naturalized something.
In 1992, in Watson v. J. C. Penney Co., 605 N.E. 2d 723, the Plaintiff testified, “I would assume it [the ice] came from the good Lord.” Justice Knecht dissented from affirming summary judgment, writing, “the trend of modern cases is to reject the natural accumulation of snow and ice rule. One reason may be no one understands the difference between a natural accumulation of ice and snow, and an unnatural accumulation. Another reason may be business customers deserve better treatment from business owners.” In 1982, Justice Londrigan wrote a similar dissent in Smalling v. LaSalle Nat’l Bank, 433 N.E.2d 713, analyzing the history of the rule and concluding, “I perceive no reason not to apply the standards of the Restatement (Second) of Torts.”
Like so many other states (including Alaska), our courts might consider there is a lot of room between no duty and some duty. The current Illinois rule doesn’t meet one of the prime purposes of law, which is to give people a target of desired behavior.
Under IPI 125.04, injury from a natural accumulation of snow and ice is not actionable. A claimant must prove the accumulation to be unnatural.
Under this rule, a store owner might pull up a chair outside his store and sit and laugh at customers falling one after another on black ice. So long as the ice is natural there might be no liability.
Unsurprisingly, the rule came from states that suffer cold weather. It’s called the Massachusetts rule. Or rather, wasthe Massachusetts Rule.
Eight years ago, in Papadopoulos v. Target Corp., 930 N.E. 2d 142 (2010), the Massachusetts Supreme Court repealed the rule. In doing so the Court quoted with approval a Rhode Island decision which held: “We believe that today a landlord, armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower, can acquit himself quite admirably as he takes to the common passageways to do battle with the fallen snow, the sun-melted snow now turned to ice, or the frozen rain.” Fuller v. Housing Auth. Of Providence, 279 A. 2d 438 (1971).
The Massachusetts Court found the distinction between natural and unnatural was not based on proper considerations and generated “specious guidelines which obscure rather than illuminate the relevant factors which should govern determination of the question of duty” (quoting Mounsey v. Ellard, 363 Mass. 693(1973)).The Court reviewed the difficulties in trying to apply the rule.
At the end of the day, the Court saw no reason to exempt property owners from their duty to exercise reasonable care regardless of the naturalness of the hazard. A property owner’s duty is determined by a finder of fact considering what efforts are reasonable in light of the expense they impose on the landowner and the probability and seriousness of the foreseeable harm to others.
“The snow removal reasonably expected of a property owner will depend on the amount of foot traffic to be anticipated on the property, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal therefore, while an owner of a single-family home, an apartment house owner, a store owner, and a nursing home operator each owe lawful visitors to their property a duty of reasonable care, what constitutes reasonable snow removal may vary among them.”
Just eleven days before the Massachusetts Supreme Court’s decision in Papadopulos, our supreme court decided Krywin v. Chi. Transit Auth., 938 N.E.2d 440 (2010) upholding the appellate court’s reversal of a $372,141.00 verdict for a plaintiff who fell on a snowy train platform. The natural accumulation rule took priority even over the rule holding common carriers to the highest degree of care.
The court reviewed caselaw and acknowledged the dangers posed by natural accumulations, but found “the imposition of an obligation to remedy those conditions would be so unreasonable and impractical as to negate the imposition of a legal duty to do so.” The court firmly upheld the rule. The CTA had no duty to remove natural accumulations of snow and ice from its platform and no duty to warn of them.
Justice Freeman dissented, saying he would hold that the common carrier’s standard of care supersedes the natural accumulation rule. Justice Kilbride joined that dissent.
Then, dissenting more strongly in the denial of rehearing after Papadopoulos, the same justices noted Massachusetts’ abandonment of the Rule. Justice Freeman wrote that by denying rehearing the court missed another opportunity “to explain why it insists on perpetuating a rule that is obsolete and no longer has a basis in modern Illinois tort law.”
Our Supreme Court considered, but did not confront, the rule in Murphy-Hilton v. Lieberman Management Services, Inc., 2016 IL 120394 and every day our trial and appellate courts look for ways not to have to figure out what makes an accumulation unnatural. Many of the decisions are unpublished.
Allen v. Cam Girls, LLC,2017 IL App (1st) 163340 reiterated the options. If a plaintiff shows an unnatural accumulation, recovery is possible. Unnatural seems to suggest some sort of human interaction, like faulty drainage. If it is a natural accumulation, plaintiff still has a few possibilities.
Illinois cases, the opinion concludes, are split on whether a contractual obligation might enable a claim from a natural accumulation. For example, cases found condo bylaws or a tenant handbook created the obligation to remove even natural accumulations. Another exception may be where Plaintiff shows the landowner voluntarily undertook removal of snow or ice but did so negligently.
In these cases, if the landowner did something negligent, he can be liable even if the accumulation is natural.
In Cam Girls,none of it mattered because the plaintiff couldn’t establish what she slipped on. Plaintiff always has to prove causation and very often cannot. Plaintiff also has to show all other elements of a premises case which set out very strong defenses. Further protection is given by the Snow and Ice Removal Act, 745 ILCS 75/1 (2012).
In trying to define unnatural, cases discuss drainage, leakage, dripping, migration, snow piles, freezing, refreezing, runoffs, slope, depression, safe ingress and egress, and melting snow or rain brought or tracked inside, but no one has effectively defined unnatural. More important, no one has shown why it matters.
The seeming assurance to Illinois landowners is, if you did nothing to cause it, be sure you don’t do anything to make it safer. Better to let people get hurt no matter how serious the problem or how easily solved. Natural is OK, whatever natural may mean.
But the basic contradiction is that nothing humans build is natural. And there is nothing natural about precipitation accumulating on something someone built. That means the most confident owner/occupier may be very surprised to find out they un-naturalized something.
In 1992, in Watson v. J. C. Penney Co., 605 N.E. 2d 723, the Plaintiff testified, “I would assume it [the ice] came from the good Lord.” Justice Knecht dissented from affirming summary judgment, writing, “the trend of modern cases is to reject the natural accumulation of snow and ice rule. One reason may be no one understands the difference between a natural accumulation of ice and snow, and an unnatural accumulation. Another reason may be business customers deserve better treatment from business owners.” In 1982, Justice Londrigan wrote a similar dissent in Smalling v. LaSalle Nat’l Bank, 433 N.E.2d 713, analyzing the history of the rule and concluding, “I perceive no reason not to apply the standards of the Restatement (Second) of Torts.”
Like so many other states (including Alaska), our courts might consider there is a lot of room between no duty and some duty. The current Illinois rule doesn’t meet one of the prime purposes of law, which is to give people a target of desired behavior.