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Posted on Jan 31st, 2019

No Reliance, No Liability for Breach of Contract to Remove Snow and Ice


By Jason G. Schutte


Plaintiff fell and injured herself at a grocery store. Plaintiff sought to utilize the snow removal contractor’s contract with the property owner as basis to establish liability for her fall on snow/ice at the property. Plaintiff did not establish that (1) she relied on contract between property owner and snow removal contractors to remove all snow/ice or (2) that snow/ice was unnatural accumulation, thus barring her recovery in this personal injury action.

Facts of Case:

This case revolves around a slip and fall injury occurring at Food 4 Less, a grocery store, on November 12, 2013.[i] Plaintiff Jordan slipped on an access ramp on “black ice” near the store entrance. She did not observe the ice until after the fall. There was no snow on the ground and the temperature was below 32 degrees. Plaintiff suffered an ankle injury requiring surgery.[ii]

Defendant Food 4 Less had a contract with Cherry Logistics which in turn had a contract with Pete’s Lawn Care to provide snow and ice removal on the location where the fall took place. Plaintiff Jordan was not aware of either contract at the time of her fall at the property. She testified via deposition that she had never heard of Cherry Logistics or Pete’s Lawn Care.[iii]

Food 4 Less’s contract with Cherry Logistics provided that Cherry Logistics would monitor weather conditions and “act reasonably” in determining when to apply de-icer to the store’s sidewalks and parking lot.[iv]

“Cherry Logistics’ contract with Pete’s Lawn Care contained much more detail on the obligations of Pete’s Lawn Care. Subsection b (“Salting”), from that contract provided:

  • “i. Salting will commence once ice builds up or slippery conditions exist on pavement.
  • “iii. [Pete’s Lawn Care] shall monitor the Location for any patches of ice, and for any thaw and re-freeze, and shall apply ice melting agent in sufficient quantities to keep all Areas clear and safe.”[v]

Subsection c of the contract, which governed Handicap areas, provided that “[e]xtra attention must be given to all handicap sidewalk ramp access areas and designated handicap parking spaces during business hours. These areas must be cleared of any snow, slush, or ice down to bare pavement at all times.”

Subsection h governed when services were to commence and stated:

  • “i. Business Hours: Services shall start once snow accumulates to one (1) inch and no later than six (6) am on the day of snowfall or when ice builds up or slippery conditions exist on pavement, and shall continue during and following the ice/snow storm (Event) until the goal of bare pavement has been achieved.”
  • Non-Business Hours: All Areas shall be free of snow, slush, and/or ice * * * not less than one (1) hour prior to Location opening.”[vi]

Food 4 Less store’s hours of operation were from 6 a.m. to midnight.[vii]

Weather reports submitted by the plaintiff indicated that there was light precipitation on the day before prior to the fall. Rain began around 11:00 a.m., at which time the temperature was 45 degrees. Light snow began as temperatures fell through the afternoon. A low temperature of 25 degrees was reached shortly after midnight. There was no precipitation on the day of the accident; however, the temperature stayed below 32 degrees in the morning, then rose to 33 degrees from around in the afternoon, then dropping below 32 degrees. Pete’s did not perform any snow or ice removal actions at the location in question in November 2013, prior to plaintiff’s fall.[viii]

Plaintiff sued both Food 4 Less and Pete’s Lawn Care. She alleged “that defendants were negligent in monitoring weather conditions to determine whether snow and ice removal services were required, and they were also negligent in removing snow and ice from access ramps on the property.”[ix] The trial court granted summary judgment in “finding that there was no evidence (i) of an unnatural accumulation of snow or ice, (ii) that defendants had actual or constructive notice of snow or ice, or (iii) that defendants breached any contractual duty.”[x]

Court Ruling:

The Appellate court noted that the natural accumulation rule provides that property owners do not owe a general duty to remove natural accumulations of snow and ice from their property. Hence, to succeed in a slip and fall case caused by snow or ice, the plaintiff must generally establish that (1) the accumulation of snow or ice was unnatural and (2) that the defendant had actual or constructive knowledge of the condition.[xi]

There was no argument in this case that the ice accumulation in question was unnatural, rather, plaintiff asserted that defendants voluntarily assumed a contractual duty to remove natural accumulations of ice, and were liable in tort to third parties for negligently failing to fulfill that duty.[xii]

The court noted that plaintiff’s cause of action for voluntarily assuming a duty to remove snow/ice was governed by section 324A of the Restatement (Second) of Torts:

““One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” Restatement (Second) of Torts § 324A (1965).”[xiii]

The court noted that sections (a) and (b) did not apply to the facts of this case, leaving only section (c) as the possible avenue for liability. Plaintiff did not assert that she personally relied on the two contracts at issue in this case. In fact, she admitted in her deposition that she had never heard of Cherry Logistics or Pete’s Lawn Care.[xiv]

Liability under subsection (c) can also be based upon reliance of the third party or “the other”—i.e., the party to whom the defendant undertook to provide services. Plaintiff asserted that “(i) Food 4 Less relied on Cherry Logistics to perform snow and ice removal per the terms of their contract; (ii) likewise, Cherry Logistics relied on Pete’s Lawn Care to fulfill its contractual duty; and (iii) their reliance entitles Jordan, as a third-party beneficiary of the Food/Cherry and Cherry/Pete contracts, to recover in tort for her injuries because Pete’s Lawn Care allegedly failed to fulfill its contractual duties.”[xv] The court rejected plaintiff’s arguments on this point.

The Jordan court noted that Illinois courts are split regarding whether a party who contracts to remove snow and ice, and then fails to do so, can be liable under section 324A(c) to third parties. That being said, “Illinois courts have repeatedly rejected the argument that the existence of a snow removal contract overrides the natural accumulation rule.”[xvi]

The Jordan court ruled that merely entering into a snow removal contract does not create in the contracting parties a duty to protect third parties from natural accumulations of snow and ice when the third parties did not personally rely on the contract. Because Jordan did not present evidence that (1) the ice on which she fell was an unnatural accumulation or that (2) she relied on the Food/Cherry and Cherry/Pete contracts, she could not establish liability against the defendants and summary judgment was appropriate.[xvii]

Effect of Case:

As mentioned above, the Jordan court noted (and discussed in further detail in the opinion) that there are split authorities on the issue of third party liability in voluntary assumption of duty situations; however, this case presents a common sense approach to evaluation of these types of claims.

Generally a plaintiff must show that there was an unnatural accumulation of snow/ice in order to establish liability against the property owner or snow removal contractor. If this cannot be done, then an alternative avenue to establish liability would be through the assumption of duty cause of action described herein. If the plaintiff intends to pursue this avenue, they will need to establish (1) that there was an assumed duty to remove all snow/ice (as we are assuming that there is no evidence of unnatural accumulation) and (2) that the plaintiff relied on this assumed duty. If these factors cannot be met, then the plaintiff likely will not be able to establish liability against the defendant.


[i] Jordan v. Kroger Co d/b/a Food 4 Less and Pete’s Lawn Care, Inc., 2018 IL App (1st) 180582, ¶4;

[ii] Id.;

[iii] Id. at ¶5;

[iv] Id.;

[v] Id. at ¶6;

[vi] Id. at ¶¶6-8;

[vii] Id. at ¶¶6-8;

[viii] Id. at ¶9;

[ix] Id. ¶10;

[x] Id. ¶¶10 & 14;

[xi] Id.at ¶18;

[xii] Id. at ¶19;

[xiii] Id. at ¶20;

[xiv] Id. at ¶¶21-22;

[xv] Id at ¶22;

[xvi] Id. at ¶23;

[xvii] Id. at ¶35;

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