What does Illinois law tell us? a. Prior to 1979
In Illinois, residential property owners have no duty to remove naturally occurring snow and ice. Prior to 1979, and under the common law, if a residential property owner decided to undertake snow removal, there could be liability for personal injury if the snow was removed without the amount of care that would be expected from a reasonable person (negligently) and if the removal efforts created an “unnatural accumulation of snow and ice.” Prior to 1979, the law actually discouraged property owners from removing snow and ice. It was better to just leave the sidewalks, driveways, etc. alone. Recognizing the problems created by the development of the case law and the benefits to encouraging property owners clear snow and ice, the General Assembly responded by adopting the Snow and Ice Removal Act.
b. Snow and Ice Removal Act
The Snow and Ice Removal Act provides immunity to residential property owners in connection with snow and ice removal efforts. However, property owners still have an obligation to use reasonable care to prevent unnatural accumulations of snow on ice if the property owner has some knowledge of a dangerous condition. In 2016, the Illinois Supreme Court attempted to clarify the current state of liability and the extent of immunity available to residential property owners for their snow and ice removal efforts. In Murphy-Hylton v. Lieberman Management Services, Inc., the Illinois Supreme Court held that a residential property owner has immunity for undertaking the removal of naturally accumulated snow or ice even if the removal causes an unnatural accumulation of snow or ice that ultimately leads to injury. If snow is removed in a fashion that creates an unnatural icy pile and a person were to be injured as a result of slipping on the icy pile, the property owner would be immune to liability. In this instance, the injury occurred solely as a result of poor snow removal efforts. The Snow and Ice Removal Act protects residential property owners from these types of claims.
However, the Illinois Supreme Court has refused to extend the immunity protections of the Snow and Ice Removal Act for defective conditions or negligent maintenance of property. If a property owner knows of a defective property condition, such as poor drainage, improperly placed downspouts or an improperly graded sidewalk and it is those conditions that result in injury, there is no protection or immunity from liability. For example, if a property owner removes snow from a sidewalk to a location where it knows, based upon poor drainage or grading, that it is likely to run back over the sidewalk, and ice forms a result, there is no immunity from liability if someone slips and falls on the ice that develops. The theory is that it is the improper maintenance of the property, not the snow removal itself that caused the injury.
c. The Snow Removal Service Liability Limitation Act
Board and property management professionals have probably read or heard something about the Snow Removal Service Liability Limitation Act since its adoption last year. This new statute, however, has no bearing upon the discussion above concerning property owners and the obligations charged and protections afforded to residential property owners concerning snow removal. The Snow Removal Service Liability Limitation Act only impacts the terms a community association and snow removal contractor may include within a service agreement. Community associations will no longer be able to include indemnity clauses in contracts with snow removal providers for damages to property or personal injury that may arise out of snow removal services. It has been common practice for community associations, when negotiating snow removal agreements, to require the provider to defend the association and hold it harmless in the event of a claim for property damage or personal injury arising out of snow removal services. With the adoption of the Snow Removal Service Liability Limitation Act, these indemnity provisions are now void and unenforceable. Agreements entered into prior to August 25, 2016 are not affected as the statute only applies to snow removal service contracts entered into after August 25, 2016.
Simply put, there is no reason to include indemnity clauses in snow removal agreements entered into after August 25, 2016. Both the snow removal provider and the association will need to bear their own costs and defense in the event a lawsuit is filed claiming property damage (destroyed mailbox, scratched car) or personal injury (slip-and-fall). The Act does not, however, preclude an association from pursuing common law remedies in the event it is sued as a result of the snow removal provider’s actions. But, an association will now be required to litigate these issues and ultimately prove that the snow removal provider’s actions or inactions were the cause, or contributed to the cause, of the injury or loss.
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