LANDOWNERS OWE DUTY TO DRIVERS WHEN IT COMES TO PLOWING SNOW

July 22, 2004

Steven P. Garmisa
Hoey & Farina Attorney
garmisa@hoeyfarina.com
1-888-425-1212

The duty to provide a safe means to exiting property includes an obligation to avoid creating a snow pile that obstructs the view of drivers.

Applying this common-sense rule, the Illinois Appellate Court distinguished Ziemba v. Mierzwa, 142 Ill.2d 42 (1991), and reversed an order that dismissed a complaint in a wrongful-death case. Raffen v. International Contractors Inc., 2004 WL 1272170 (2d Dist., June 3).

Here are some highlights of Justice Robert D. McLaren's opinion (with various omissions not noted in the quoted text):

"On the afternoon of Jan. 9, 2001, decedent, Dean Raffen, was killed when he was thrown from the car in which he was a passenger. The driver of the car was his sister, Mellody Spatafora.
"Mellody's car was traveling on a frontage road when it collided with a car driven by defendant Michael Brophy.

"Brophy was exiting the driveway of defendant International Contractors Inc. (ICI). Next to the driveway was a snow pile that prevented Brophy and Mellody from seeing each other. Plaintiff, Rosemarie Raffen, decedent's wife and special administrator of his estate, filed a wrongful-death negligence suit against Brophy and ICI.

"ICI moved to dismiss her complaint, contending that, as a landowner, it owed no duty to travelers on an adjacent roadway.
"The trial court granted the motion."

Reversing, McLaren explained:

"A successful negligence claim must establish that the defendant owed a duty to the plaintiff, the defendant breached that duty, and the breach proximately caused the injury the plaintiff sustained. When deciding whether the defendant owed a duty to the plaintiff, courts consider (1) the foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden in guarding against the injury and (4) the consequences of placing the burden on the defendant.

"Whether a duty exists is a question of law, and the answer hinges on whether the parties stood in such a relationship to each other that the law would impose an obligation on the defendant to act reasonably for the protection of the plaintiff.

"In cases such as this one, where it is alleged that a landowner owes a duty to travelers on an adjacent roadway, courts first focus on the foreseeability of the injury. Thus, we will first consider whether it is reasonably foreseeable that snow at the edge of Frontage Road and next to ICI's driveway would prevent motorists from seeing each other and would lead to a collision between a car driving on the adjacent roadway and one exiting the driveway.
"In addressing the foreseeability of the injury in this case, we must consider whether the condition giving rise to the injury, i.e., the snow pile, was unreasonably dangerous given the facts of the case. In resolving that issue, we are guided by the notion that foreseeability of harm, in connection with a duty, is not a magical concept that ignores common sense. Rather, foreseeability arises when the injury is likely enough to occur that a reasonably thoughtful person would take it into account in guiding his practical conduct.

"Here, common sense tells us that a snow pile large enough to block one's view of oncoming traffic may indeed interfere with a motorist's ability to see cross-traffic and avoid an accident. We believe that a reasonably thoughtful person piling snow at the edge of a frontage road would take that into account and would alter his actions accordingly.

"In reaching this conclusion, we find support in Ziencina v. County of Cook, 188 Ill.2d 1 (1999). In Ziencina, a snow mound piled at the corner of an intersection blocked the plaintiff's view of traffic traveling on a cross-street. The plaintiff 'edged out' into the intersection and was struck by an oncoming car.

"The plaintiff sued the defendant, a municipality, which maintained the intersection. The case was presented to a jury, which found for the plaintiff.

"On appeal to our Supreme Court, the defendant contended that it was immune from liability pursuant to the Local Governmental and Governmental Employees Tort Immunity Act. Our Supreme Court disagreed, concluding that the defendant had a duty to exercise due care once it undertook to plow the snow. The court determined that the defendant breached this duty when it piled snow at the corner of the intersection and in such a manner that it obstructed the view of motorists on the roadway.

"The only factual difference we see between Ziencina and this case is that ICI is not a municipality and, thus, has no statutory immunity defense. This distinction is immaterial for purposes of this appeal.
"As this court has previously stated, the issues of duty and immunity are separate and distinct. Governmental units are liable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunity imposes conditions upon that liability.
"The plaintiff in Ziencina maintained a successful negligence action against the defendant based on evidence quite similar to the allegations here. Based on that fact, we cannot conclude that decedent's death was unforeseeable.

"ICI contends that Ziemba [v. Mierzwa, 142 Ill.2d 42 (1991)] controls this case. We disagree.

"In Ziemba, the plaintiff was riding his bike when he was struck by a dump truck exiting the defendant's property. The plaintiff alleged that foliage growing on the defendant's property prevented people traveling on the adjacent road from seeing the defendant's driveway.

"The defendant moved to dismiss the plaintiff's complaint, claiming that he did not owe a duty to the plaintiff. The trial court granted the motion, and our Supreme Court affirmed.

"In reaching this conclusion, our Supreme Court commented on what the plaintiff alleged, and failed to claim, in his complaint. Specifically, the plaintiff alleged that the driver of the dump truck was negligent when he exited the driveway without warning and without yielding the right of way to traffic on the roadway.

"The plaintiff also failed to allege that the foliage prevented the dump truck driver from seeing oncoming traffic. Viewing these allegations in a light most favorable to the plaintiff, the court held that the accident was not foreseeable because the defendant could not reasonably foresee that the dump truck driver would exit the driveway without first ascertaining whether there was traffic on the roadway.

"Although plaintiff here, like the plaintiff in Ziemba, alleged that Brophy was negligent, plaintiff also claimed, in the counts against both Brophy and ICI, that ICI's snow pile obstructed Brophy's view of oncoming traffic, which was not similarly claimed in Ziemba.
"In Ziemba, the plaintiff alleged that the foliage impaired his ability to see the dump truck exiting the defendant's driveway and that the defendant had a duty to maintain his property so that travelers on the adjacent roadway could see the driveway. Those claims were irrelevant because, as alleged, the dump truck driver's independent negligent acts caused the accident.

" 'Because the driver of the truck could see [the adjacent road], the fact that [the] plaintiff could not see the driveway does not affect the determination of whether it was reasonably foreseeable that the driver would violate his own statutory duty, and ultimately whether the injury was a reasonably foreseeable result of the condition of the driveway.' Ziemba, 142 Ill.2d at 51.

"This distinction between the phrasing of the allegations here and those in Ziemba is crucial because, unlike in Ziemba, the allegations here present a set of facts under which ICI's action of maintaining the snow pile at least contributed to Brophy's conduct and decedent's injury.

"Although we determine that the injury was foreseeable, we also must address the likelihood of the injury, the magnitude of the burden in guarding against the injury, and the consequences of placing the burden on the defendant.

"We first consider whether the injury was likely. Likelihood in this context is not a certainty or a possibility, but a probability.
"We believe that the injury was probable because the snow pile prevented Brophy and Mellody from seeing each other. If motorists are prevented from seeing approaching traffic, the risk of colliding with other drivers is quite probable.

"Second, addressing the magnitude of the burden in guarding against the injury, we believe that the injury could have been avoided if ICI had piled the snow somewhere other than at the edges of its driveway. Piling the snow in one location instead of another is certainly not a great burden.

"Last, we consider the consequence of placing the burden on ICI. Generally, a landowner owes a duty to those traveling on an adjacent roadway by virtue of his landowner status and the theory that the landowner is in the best position to prevent the injury. However, if a third party was in the best position to guard against the plaintiff's injury, there is no justification for imposing liability on the landowner.

"Here, pursuant to count 2 of plaintiff's complaint, we determine that ICI was in the best position to prevent decedent's death. As other appellate courts have observed, property owners routinely enter and exit their own property, and thus, they are in the best position to observe potential hazards and effectively eliminate them.

"The courts that have found third parties in the best position to avoid the injury are clearly distinguishable. Thus, viewing the allegations in a light most favorable to plaintiff, we hold that ICI's motion to dismiss should have been denied."

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