The plaintiff’s Estate did not take issue with the evidence supporting the argument that the plaintiff slipped and fell on a natural accumulation of snow which had starting falling two hours before the decedent’s injury, but suggested that the fast food corporation’s policy manual concerning “winter maintenance” gave rise to a self-imposed duty to keep access aisles, including parking lot crosswalks, free of all snow and ice.
The relevant section of the defendant’s policy provided that the restaurant was to “keep wheelchair-accessible parking spaces, access aisles, and curb ramps clear of snow and ice. Do not pile snow in the wheel-chair accessible parking spaces or access aisles”.
Brad contended that the doctrine of ejusdem generis would not allow the phrase “access aisle” to be construed to include a painted crosswalk on the restaurant property, and bolstered that argument by attaching to his reply brief portions of the U.S. Department of Justice Civil Rights Division A.D.A. Design Guide, further contending that the phrase “access aisle” is a term of art that could only be construed to be that portion of the painted pavement markings immediately adjacent to a designated handicapped parking space.
The Estate’s alternative argument was that “Illinois courts have consistently imposed a duty upon property owners to provide reasonably safe means of ingress and egress from their places of business and have explained that this duty is not abrogated by the presence of a natural accumulation of ice, snow or water”.
However, Brad reasoned that in all of the cases cited by the plaintiff, there were independent acts of negligence attributable to the respective defendants (e.g. improper roof drainage designs allowing the formation of icicles, or more prominently, inadequate lighting, which rendered the falls on the involved natural accumulations actionable, adding that the Estate could not point to any independent negligent act or omission by the restaurant owner, such that there was no evidence that the means of ingress or egress was unsafe, other than because of the natural accumulation of snow on which the decedent slipped. MSJ granted 9/30/15; Case # 13 L 36 (DuPage County).
