'Natural accumulation' rule punctuated in icy fall decision; Plaintiffs want Mudge to reconsider summary judgment

While courts have consistently found it an unreasonable burden for businesses to keep small areas such as parking lots, sidewalks and entryways safe from naturally accumulated snow and ice, plaintiffs in a Madison County slip and fall case are nevertheless asking for another chance to make their case against a Granite City Mexican restaurant.

Yvonne and Charles Mothershed of Granite City have moved for reconsideration of a summary judgment order Madison County Circuit Judge William granted in favor of El Torero restaurant in November.

The couple filed suit in 2010 over an incident they said took place on Jan. 29, 2009, when Yvonne fell on snow and ice that had accumulated on a sidewalk used as the main entrance to the restaurant.

Mudge wrote that his court “has no authority to depart” from a well-established “natural accumulation” rule.

He cited Fifth District Appellate Court opinion “Greenwood” from 1973 which held that a “plaintiff’s fall must result from something other than a natural accumulation of snow or ice even on an incline or ramp into a store, before liability will attach.” He also noted a 1999 decision “Kellerman,” which refused to depart from the natural accumulation rule.

Mudge wrote that he construed the pleadings, discovery materials, admissions and permissible inferences “in the light most favorable to the plaintiffs” and determined that Yvonne’s fall was within an area designated as ingress/egress.

“By doing so, however, it does not preclude summary judgment in this case,” he wrote.

“The plaintiffs have not pointed this court to anything in the record indicating that the defendant knew or should have known of the existence of a dangerous condition or defect and failed to take action to protect its business invitees from such a defect.”

Mudge wrote that the Greenwood decision discussed the defenses of natural accumulation of ice and snow and a proprietor’s duty to provide a safe means of ingress and egress. He pointed to a special concurrence by then Justice George Moran who “believed that the majority court held that the natural accumulation defense essentially trumped the reasonable safe ingress and egress duty.”

“Even if it does not, the record in the instant case does not present a factual basis where a material dispute may exist under a failure to provide a reasonably safe means of ingress and egress analysis,” Mudge wrote.

“The fact that post-fall someone from the restaurant apologized while mentioning that they pay someone to clear the sidewalk, and that they threw some solvent or salt on the area afterwards, does not establish that they knew or should have known, of the dangerous condition prior to plaintiff’s fall.”

Represented by attorney Christopher B. Hunter, Yvonne Mothershed claimed she sustained severe injuries, fractures, bruises and contusions; became sick, sore, lame and disordered; experienced an impaired ability to work and engage in other activities; and sustained great mental anguish, physical pain, suffering and a permanent disability. And because she had been unable to perform her usual duties, Charles Mothershed claimed he was forced to incur costs to secure the performance of her duties.

In addition, Charles Mothershed claimed he had been deprived of his wife’s society, conjugal fellowship, companionship and aid.

Madison County Circuit Court case number: 10-L-415.