KRYWIN v. CHICAGO TRANSIT AUTHORITY

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Docket Number

No. 108888.

Attorney(S)

Joseph G. Ryan and Lawrence G. Gordon, of Gordon Centracchio, L.L.C., of Chicago, for appellant. Kent S. Ray, of Chicago (Brad Jansen and Stephen L. Wood, of counsel), for appellee. Stephen H. Pugh, Preston L. Pugh and Rebecca D. Fuentes, of Pugh, Jones, Johnson Quandt, P.C., of Chicago, for amicus curiae Metra. Michael D. Carter and Joseph V Healy, of Horwitz, Horwitz Associates, of Chicago, for amicus curiae Illinois Trial Lawyers Association. Michael Resis, of SmithAmundsen L.L.C., and Jason C. Lewis, of Nyhan, Bambrick, Kinzie Lowry, P.C., all of Chicago, for amicus curiae Illinois Association of Defense Counsel.

Judges

Charles E. Freeman

Acts

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MARIANNA KRYWIN, Appellant, v. CHICAGO TRANSIT AUTHORITY, Appellee.

ORDER

GABRIEL W. GORENSTEIN, Magistrate Judge.

Plaintiffs' objections to the report and recommendation of Magistrate Judge Gabriel W. Gorenstein, dated June 29, 2010, are entirely without merit. The motion of defendant Druckman Sinel, LLP, for summary judgment dismissing the complaint [DI 115] is granted.

SO ORDERED.

REPORT AND RECOMMENDATION

Christopher and Diane Schuh brought this suit raising a number of claims relating to the efforts by various banks to foreclose on the Schuhs' property following the Schuhs' failure to pay their mortgage. A prior decision of this Court dismissed all of the Schuhs' claims except for a single claim arising under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692,et seq., against Druckman and Sinel, LLP ("D S"), the law firm that filed the foreclosure action. D S has moved for summary judgment. For the reasons that follow, D S's motion for summary judgment should be granted.

I. BACKGROUND

A. Facts

Unless otherwise stated, the following facts are not in dispute.

On September 16, 1994, the Schuhs obtained a $66,000 loan from Personal Mortgage Corporation secured by a mortgage on their residence. See Mortgage, dated Sept. 16, 1994 (R. 65-72). The Schuhs were in default on their mortgage beginning in 1997. See Second Amended Complaint, filed Apr. 14, 2008 (Docket # 72) ("Compl.") ¶ 84. In their complaint in this Court, the Schuhs allege that various entities became either the purported assignees of the mortgage or were responsible for servicing the mortgage. Id. ¶¶ 103-107, 110-12.

"R." refers to page numbers of the Record on Appeal filed in the Appellate Division, Third Department, when the foreclosure action was on appeal. The record is reproduced as Ex. 6 to the Affirmation of Geoffrey W. Heineman in Support of Motion for Summary Judgment of Defendant Druckman Sinel, LLP, filed Dec. 4, 2009 (Docket # 116) ("Heineman Aff.").

On May 4, 2004, D S filed an action in New York State Supreme Court in Saratoga County on behalf of Mortgage Electronic Registration Systems, Inc ("MERS") to foreclose on the Schuhs' mortgage. See Verified Complaint, filed May 4, 2004 (R. 33-28). The court granted MERS' motion for summary judgment, see Order for Summary Judgment and Reference, filed Oct. 5, 2004 (R. 20-23), and thereafter granted a Judgment of Foreclosure and Sale, see Judgment of Foreclosure and Sale, filed Jan. 21, 2005 (R. 12-19). While the foreclosure sale was scheduled for March 1, 2005,see Order to Show Cause on Motion to Vacate Default Judgment, filed Nov. 21, 2005 (R. 104-07), the Schuhs served an Order to Show Cause through retained counsel, Frank A. Romano, seeking to stay the foreclosure sale and to vacate both the order granting summary judgment and the judgment of foreclosure, id.; Letter from Frank A. Romano to Hon. Stephen A. Ferradino, dated Feb. 23, 2005 (annexed as Ex. 8 to Heineman Aff.). On October 27, 2005, the court denied the Schuhs' motion to vacate. See Decision and Order, filed Nov. 21, 2005 (R. 9-11). The Schuhs then appealed that decision to the Appellate Division, Third Department, see Notice of Appeal, filed Dec. 21, 2005 (R. 2), and on December 13, 2005, filed a Chapter 13 Voluntary Petition in the United States Bankruptcy Court for the Northern District of New York,see Final Report and Account, undated (R. 217-18). The Schuhs moved again to vacate the order granting summary judgment and the judgment of foreclosure, alleging newly discovered evidence. See Notice of Motion on Renewal and/or for Reconsideration and

for Summary Judgment Against Plaintiff, dated Feb. 16, 2006 (R. 173-74); Defendant's Affidavit in Support of Motion on Renewal Presenting New Evidence and for Reconsideration, dated Feb. 16, 2006 (R. 175-88). The court denied that motion on the ground that the evidence was not new. Decision and Order, filed Mar. 27, 2006 (R. 163-65).

The foreclosure sale was held on March 23, 2006, and Christopher Schuh (hereinafter referred to as "Schuh") was the successful bidder, offering $141,251. See Terms of Sale, dated Mar. 23, 2006 (R. 260-64); Compl. ¶ 136. As was required, Schuh made a partial payment of $14,126 at that time to the court-appointed referee, Stephen Rodriguez. See id. On March 27, 2006, D S wrote to Schuh to inform him that the closing had to take place no later than 30 days from the date of sale, April 24, 2006; that no adjournments would be permitted; and that failure to close within that time period would result in "the forfeit of the down payment." Letter from Silvia Cartagena to Christopher Schuh, dated Mar. 27, 2006 (annexed as Ex. 15 to Heineman Aff.). On April 13, 2006, the Schuhs filed a motion in New York State Supreme Court in Saratoga County to stay the closing and to reconsider their motion to vacate the order granting summary judgment and the judgment of foreclosure. See Defendant Druckman Sinel, LLP's ("The Druckman Firm") Statement Pursuant to Rule 56.1, filed Dec. 7, 2009 (Docket # 119) ("D S Rule 56.1 Statement") ¶ 31 (undisputed by plaintiffs); Notice of Motion to Renew and Vacate Order of Summary Judgment upon New Found Evidence, filed Apr. 13, 2006 (R. 209); Order to Show Cause on Notice of Motion to Renew and Vacate Order of Summary Judgment upon New Found Evidence, dated Apr. 13, 2006 (R. 210-12). The court denied the Schuhs' motion in its entirety. See Decision and Order, filed Aug. 25, 2006 (R. 24-25).

Another foreclosure sale was scheduled for November 13, 2006, and the Schuhs unsuccessfully tried to enjoin that sale by seeking a stay in the Appellate Division, Third Department. See Decision and Order on Motion, dated Nov. 9, 2006 (R. 346). The Schuhs were able to delay the scheduled foreclosure sale by filing a second voluntary Chapter 13 petition in the Northern District of New York. See Chapter 13 Bankruptcy Petition, dated Nov. 10, 2006 (annexed as Ex. 3 to Heineman Aff.).

In the meantime, and at some point after the March 2006 foreclosure sale, the Schuhs took steps to secure funds from Countrywide Mortgage. See Deposition of Christopher Schuh, dated Oct. 27, 2009 (annexed as Ex. 2 to Supplemental Affirmation of Geoffrey W. Heineman in Support of Motion for Summary Judgment of Defendant Druckman Sinel, LLP, filed Dec. 8, 2009 (Docket # 121) ("Heineman Supp. Aff.")) ("Schuh Dep."), at 92-94. Countrywide Mortgage used Linear Title, a title company, to assist in preparation of the financing.See Email from Rusty Solomon to Silvia Cartagena, dated Sept. 28, 2006 (annexed as Ex. 17 to Heineman Aff.) ("September Linear Title Email"). On September 29, 2006, Countrywide issued a loan commitment letter to Diane Schuh for $91,813.15, see Schuh Commitment Letter, dated Sept. 29, 2006 (annexed as Ex. D to Supplemental Affirmation of Geoffrey W. Heineman in Support of Motion for Summary Judgment of Defendant Druckman Sinel, LLP, filed Apr. 9, 2010 (Docket # 132) ("Heineman Second Supp. Aff.")), though no closing occurred on that date.

Eventually, on November 24, 2006, Countrywide issued a "Notice of Loan Approval and Loan Commitment" in the amount of $130,000 to Diane Schuh. Notice of Loan Approval and Commitment, dated Nov. 24, 2006 (annexed as Ex. I to Opposing Declaration of John C. Klotz, filed Jan. 8, 2010 (Docket # 122) ("Klotz Decl.")); Opposing Declaration of Christopher Schuh, filed Jan. 8, 2010 (Docket # 123) ("Schuh Decl.") ¶ 44. On the same date, Theresa Giannavola of Linear Title sent a fax to D S requesting "a new payoff statement" from D S. See Fax from Theresa M. Giannavola to Druckman Sinel, dated Nov. 24, 2006 (annexed as Ex. 18 to Heineman Aff.) ("Linear Title Fax"). The fax states in its entirety: "Please send a new payoff statement immediately for the above borrower!" It is signed by "Theresa M. Giannavola, Esq." The letterhead on the fax reads "Linear Title Closing," gives an address in Rhode Island, and contains the fax number "(866) 634-5116." Id. Five calendar days (and three business days) later, D S sent, via facsimile, the letter that is alleged to have violated the FDCPA. The letter, dated November 29, 2006, is addressed to "Theresa Giannavola, Esq." See Letter from Dana Athanasio to Theresa Giannavola, Esq., dated Nov. 29, 2006 (annexed as Ex. 20 to Heineman Aff.) ("Nov. 29 Letter"). Underneath Giannavola's name in the place where an address would normally occur is written "c/o Christopher Schuh." Schuh's name is not followed by any address. Above Giannavola's name appears the same fax number that was contained in Giannavola's November 24 fax to D S.

The Nov. 29 Letter stated that "payoff figures good through December 15, 2006" required one check to HSBC Mortgage Services for $111,938.55 and a second check to D S for $13,250 for legal fees. Id. The letter also included a statement that "[t]he figures quoted in this statement are not to be considered an estoppel and must be verified prior to acceptance of any payment." Id. The letter attached two copies of the payoff amounts through December 15, 2006 on HSBC letterhead. Id. at 2-3.

In Schuh's deposition testimony, Schuh stated that he could not remember either Linear Title or Theresa Giannavola, that he had not had conversations with either Giannavola or Linear Title, and that he did not remember seeing the Nov. 29 Letter at the time it was sent. See Schuh Dep. at 129-31. In an errata sheet for his deposition transcript, however, Schuh stated that he did see the Nov. 29 Letter, though he did not state when he saw it. See Christopher Schuh Errata Sheet, dated Dec. 21, 2009 (annexed as Ex. N to Klotz Decl.) ("Errata Sheet"), at 2.

In December 2006, the Schuhs stayed the sale by making a payment to the court towards the payoff figure. See Amended Decision and Order, dated Jan. 19, 2007 (R. 26-29). On December 11, 2006, the bankruptcy court issued an order lifting the bankruptcy stay. Order Denying Extension of the Automatic Stay, dated Dec. 11, 2006 (R. 347-48). The Schuhs then made a motion in the Third Department to stay the public auction of the property, which had been scheduled for January 22, 2007. See Notice of Motion to Stay Foreclosure Sale and Vacate Foreclosure Judgment, dated Dec. 29, 2006 and Affirmation on Support of Motion to Stay Foreclosure Sale and Vacate Judgment of Foreclosure, dated Dec. 29, 2006 ("Schuh Dec. 29 Aff.") (annexed as Ex. 22 to Heineman Aff.); Notice of Motion to Dismiss Appeal as Moot and Vacate Foreclosure or Extend Time to Perfect Appeal, dated Dec. 21, 2006 (R. 317-18); Supporting Affirmation, dated Dec. 21, 2006 (R. 319-29). In their affirmation in support of their motion, the Schuhs annexed the Nov. 29 Letter and argued that there was "no record justifying or explaining either HSBC's claim for any unpaid fees or the attorneys' claims for a $13,250 fee." Schuh Dec. 29 Aff. ¶¶ 22, 28. In an Amended Decision and Order, dated January 19, 2007, the Supreme Court granted, in part, the Schuhs' motion to enjoin the January 22, 2007 foreclosure sale because the Schuhs had elected to exercise their statutory right of redemption under Real Prop. Acts. Law § 1341. See Amended Decision and Order, dated Jan. 19, 2007 (R.

26-29). Ultimately, the Schuhs retained their home with the help of their family. See Schuh Dep. at 145.

B. Procedural History

The Schuhs brought suit in this Court on January 17, 2007 asserting a number of causes of action. Their first complaint was dismissed with leave to replead certain claims. Schuh v. Druckman Sinel, L.L.P., 2008 WL 542504 (S.D.N.Y. Feb. 29, 2008), adopted by Order, filed Mar. 19, 2008 (Docket # 62). Their second complaint was dismissed as to all claims and all defendants with the exception of a claim under the FDCPA against D S regarding the Nov. 29 Letter. See Schuh v. Druckman Sinel, LLP, 602 F. Supp. 2d 454, 463-65 n. 6 (S.D.N.Y. 2009).

The Schuhs assert that the Nov. 29 Letter violated the FDCPA in several ways: through D S's utilization of "unfair and unconscionable means to collect the debt owed by the Plaintiff, including the collecting and attempting [sic] to collect of interest and other charges, fees and expenses not authorized by the original Mortgage Note or Mortgage, or otherwise legally chargeable to the Schuhs, subsequent to the judgment of foreclosure"; "by misrepresenting the character, amount and legal status of the Plaintiffs' debt"; and "by failing to accurately and fully state in communications to the Plaintiff `the amount of the debt.'" Compl. ¶ 193.

On December 4, 2009, D S made the instant motion for summary judgment. The Schuhs filed opposition papers and D S filed reply papers. On March 19, 2010, the Court gave leave to the parties to submit additional briefing. See Order, filed Mar. 19, 2010 (Docket # 129) (citing D S Mem. at 17, 25-27). In accordance with that Order, each side submitted supplemental papers.

Notice of Motion for Summary Judgment, filed Dec. 4, 2009 (Docket # 115); D S 56.1 Statement; Memorandum of Law in Support of Defendant Druckman Sinel, LLP's ("The Druckman Firm") Motion for Summary Judgment, filed Dec. 4, 2009 (Docket # 117) ("D S Mem."); Heineman Aff.; Heineman Supp. Aff.

Klotz Decl.; Schuh Decl.; Plaintiff's Rule 56.1 Counter Statement, filed Jan. 11, 2010 (Docket # 126); Plaintiffs' Memorandum in Opposition to Defendant's Motion to Dismiss, filed Jan. 8, 2010 (Docket # 125) ("Schuh Opp. Mem.").

Reply Memorandum of Law in Support of Defendant Druckman Sinel, LLP's ("The Druckman Firm") Motion for Summary Judgment, filed Jan. 22, 2010 (Docket # 128); Reply Affirmation of Geoffrey W. Heineman in Support of Motion for Summary Judgment of Defendant Druckman Sinel, LLP, filed Jan. 22, 2010 (Docket # 127) ("Heineman Reply Aff.").

See Defendant Druckman Sinel, LLP's ("The Druckman Firm") Supplemental Statement and Memorandum of Law in Support of Summary Judgment, filed Apr. 9, 2010 (Docket # 131); Heineman Second Supp. Aff.; Supplemental Opposing Declaration of John C. Klotz, filed Apr. 23, 2010 (Docket # 133); Plaintiffs' Memorandum in Response to Defendant Druckman Firm's Supplemental Statement and Memorandum of Law in Support of Summary Judgment, filed Apr. 23, 2010 (Docket # 134); Defendant Druckman Sinel, LLP's ("The Druckman Firm") Supplemental Reply in Support of Summary Judgment, filed Apr. 30, 2010 (Docket # 135).

II. APPLICABLE LAW

A. Standard for Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure states that summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). A genuine issue of material fact "may reasonably be resolved in favor of either party" and thus should be left to the finder of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

When determining whether a genuine issue of material fact exists, courts must resolve all ambiguities and draw all factual inferences in favor of the non-moving party. Id. at 255 (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970)). Nevertheless, once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, the non-moving party "must come forward with `specific facts showing that there is a genuine issue for trial,'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e) (emphasis in original)), and "may not rely on conclusory allegations or unsubstantiated speculation," Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005) (citation omitted). In other words, the non-movant must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Where "the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to its case." Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (citation, internal quotation marks, and brackets omitted). Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citation omitted); accord Feurtado v. City of N.Y., 337 F. Supp. 2d 593, 599-200 (S.D.N.Y. 2004).

B. Law Governing FDCPA Claims

The FDCPA "grants a private right of action to a consumer who receives a communication that violates the Act." Jacobson v. Healthcare Fin. Servs, Inc., 516 F.3d 85, 91 (2d Cir. 2008) (citing 15 U.S.C. § 1692k). The Second Circuit has summarized the purpose and history of the FDCPA as follows:

The purpose of the FDCPA is to "eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). The FDCPA "establishes certain rights for consumers whose debts are placed in the hands of professional debt collectors for collection, and requires that such debt collectors advise the consumers whose debts they seek to collect of specified rights." DeSantis v. Computer Credit, Inc., 269 F.3d 159, 161 (2d Cir. 2001). The legislative history of the passage of the FDCPA explains that the need for the FDCPA arose because of collection abuses such as use of "obscene or profane language, threats of violence, telephone calls at unreasonable hours, misrepresentation of a consumer's legal rights, disclosing a consumer's personal affairs to friends, neighbors, or an employer, obtaining information about a consumer through false pretense, impersonating public officials and attorneys, and simulating legal process." S. Rep. No. 95-382, at 2 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1696. The FDCPA sets forth examples of particular practices that debt collectors are forbidden to employ. See 15 U.S.C. § 1692e. The list, however, is non-exhaustive, and the FDCPA generally forbids collectors from engaging in unfair, deceptive, or harassing behavior. See 15 U.S.C. §§ 1692 et seq.

Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir. 2002).

The relevant provisions of the FDCPA apply only to the activities of a "debt collector." See 15 U.S.C. §§ 1692e, 1692f, 1692g. A "debt collector" is a person "who regularly collects . . . debts owed . . . another" or a person involved "in any business the principal purpose of which is the collection of any debts." Id. § 1692a(6). In contrast, a "creditor" is a "person who offers or extends credit creating a debt." Id. § 1692a(4). As was noted in Williams v. Citibank, N.A., 565 F. Supp. 2d 523, 528 n. 6 (S.D.N.Y. 2008), "[t]he FDCPA applies to debt collectors and not `creditors' because debt collectors, unlike creditors, are not constrained in their actions by the risk that a negative reputation regarding debt collection practices might threaten their continued access to new borrowers." Id. (citing Harrison v. NBD Inc., 968 F. Supp. 837, 841 (E.D.N.Y. 1997) (discussing the legislative intent behind the FDCPA)). Finally, a consumer is "any natural person obligated or allegatural accumulations of snow and ice from that part of its right-of-way not consisting of its crossings and approaches. McElligott, 37 Ill. 2d at 469.

In Sheffer, 261 Ill. App. 3d 151, the plaintiff was a passenger on one of the defendant's planes. After the plane landed, the passengers disembarked and began walking across the tarmac to the airport terminal. The plaintiff slipped on a large patch of ice and fell, injuring herself. She sued the airport authority and the airline. A jury rendered a verdict in her favor. The appellate court reversed. Recognizing a common carrier's heightened duty of care, the court nonetheless held that the defendant had no duty to remove the natural accumulation of ice on which the plaintiff fell, nor any duty to warn of the existence of the ice. Sheffer, 261 Ill. App. 3d at 154.

The plaintiff in Serritos v. Chicago Transit Authority, 153 Ill. App. 3d 265 (1987), slipped and fell on the steps of one of the defendant's buses. The day of the accident was snowy and the steps of the bus were covered in slush. In her complaint, the plaintiff alleged that the defendant had negligently failed to remove ice and snow from the steps of the bus and had failed to warn her of the slippery conditions. The trial court granted summary judgment to the defendant, finding no duty to remove the slush from the steps. The appellate court affirmed. The court noted that, even with a common carrier's higher duty of care, it would be impractical to impose a duty on the defendant to keep the steps of its buses clear of slush and snow tracked in by its patrons. Imposing such a duty would bring the transportation system to a standstill. Serritos, 153 Ill. App. 3d at 271-72.

Likewise, in Shoemaker v. Rush-Presbyterian-St. Luke's Medical Center, 187 Ill. App. 3d 1040 (1989), the appellate court held that the defendant was not liable when the plaintiff stepped off an elevator and fell on the floor where rainwater had been tracked in by patrons. The court found that, despite the defendant's highest duty of care to provide the plaintiff with a safe place to alight from the elevator (a common carrier), the rainwater was a natural accumulation which the defendant had no duty to remove or warn against. Shoemaker, 187 Ill. App. 3d at 1045.

In Jones v. Chicago Transit Authority, 206 Ill. App. 3d 736 (1990), the plaintiff slipped on the wet steps of the defendant's bus and fell. The defendant moved for summary judgment, arguing it had no duty to remove natural accumulations of rain water from the steps of its buses. The plaintiff responded by arguing that the defendant had a duty to purchase buses equipped with a drainage device which would allow water to flow onto the street. The trial court granted summary judgment to the defendant. The appellate court affirmed, noting that, while the likelihood of injury is great, even greater is the magnitude of the burden of guarding against it and the consequences of imposing that burden on the defendant. The court held it would be impractical to require the defendant to replace or retrofit all its buses with a drainage system. Such a requirement would not be consistent with the practical operation of the defendant's bus service. Jones, 206 Ill. App. 3d at 739.

Plaintiff argues that the natural accumulation rule should not be applied to the case at bar. She contends the rationale underlying the natural accumulation rule is that it would place an unfair burden on a municipality to remove ice or snow from its sidewalks presented by an ongoing foul weather storm throughout an entire city. She argues the evidence showed that there was no ongoing storm in Chicago the day of Plaintiff's accident, but that the ice on the platform had been there continuously for three days and that nothing had been done to remedy the condition, although the CTA could have easily done so.

In Graham v. City of Chicago, 346 Ill. 638 (1931), this court stated that the reason for the natural accumulation rule is that it would be unreasonable to require a city to expend funds and perform the labor necessary to keep its walks reasonably free from ice and snow during the winter months. Graham, 346 Ill. at 643. We note that the general rule that property owners have no duty to remove natural accumulations of ice or snow from their property has been applied without regard to any ongoing precipitation (see Sheffer, 261 Ill. App. 3d at 152 (the weather was "bright and sunny" at the time the plaintiff fell on the ice)) or the length of time the natural accumulation has existed ( Frederick v. Professional Truck Driver Training School, Inc., 328 Ill. App. 3d 472, 478 (2002) (there is no exception to natural accumulation rule based on the passage of time)). However, even were we to find that the absence of an ongoing storm had some effect on the CTA's duty, we would find that the evidence was conflicting in this regard. Patricia Majors testified that on the day of the accident, as well as during the two days prior thereto, the weather had been rainy and cold. She stated that the sidewalks were filled with slush. The platform where plaintiff fell was also covered with ice during the times Majors was on the platform during those two days. Theresa Williams, customer service agent for the CTA, identified the weather conditions on the day of the accident as sleet and foggy. Defense witness Diane Senechal testified that it had been sleeting on the morning of the accident. She held her umbrella over plaintiff after, she fell to protect her from the falling snow. The evidence thus contradicts Plaintiff's claim that there was no evidence of ongoing adverse weather.

Plaintiff cites Wasserman v. City of Chicago, 190 Ill. App. 3d 1064 (1989), as an example of what she terms a "much sounder way" to decide whether a common carrier should receive the benefit of the natural accumulation rule. In Wasserman, the plaintiff sued the City and the CTA. She was a passenger on one of the CTA's buses. Ice and snow covered the ground. At the place where the plaintiff got off the bus, the sidewalk was covered in ice and snow. Although the streets had been cleared of snow, there were deep piles of snow at the place where the bus stopped and there was no place to walk between them. The plaintiff fell as she took a step away from the bus. The trial court granted summary judgment to the CTA. On appeal, the plaintiff argued that the CTA breached its duty to ensure that the bus stopped at a place where it was safe for her to exit the bus. The appellate court noted that the CTA, as a common carrier, had a heightened duty of care to its passengers and that this duty continues until passengers have had a reasonable opportunity to reach a place of safety. The court observed that the CTA had failed to provide any evidence that it was impossible to stop further away from the snow piles or at some other point along the street. Thus, a question of fact existed as to whether the CTA had breached its duty to provide the plaintiff with a safe place to alight from the bus. Wasserman, 190 Ill. App. 3d at 1067.

We note that, although the CTA in Wasserman argued that the snow was a natural accumulation, the appellate court did not rest its ruling on that ground. The issue there was solely whether the CTA had breached its duty to provide the plaintiff with a safe place to alight. The fact that the streets had been cleared and that there were deep piles of snow suggests, if anything, that the snow piles were an unnatural accumulation. In any event, it is obvious that a bus driver has a much better opportunity to determine the best place to let his or her passengers off the bus than does a train operator on an eight-car train whose only option is to discharge passengers on a platform. Based upon Wasserman, plaintiff argues that a jury is fully capable of deciding whether, under a specific set of facts, a common carrier should be held liable for failing to provide a safe place to alight or, given the conditions of the day, the common carrier fulfilled that duty. We do not disagree with plaintiff that, under appropriate circumstances, the question of whether a common carrier breached its duty to provide a safe place to alight is a question of fact for the jury to decide. In Wasserman, the appellate court determined that a question of fact existed and that summary judgment should not have been granted. Such is not the case here, however.

We conclude that the natural accumulation rule applies in this case and that the CTA had no duty to remove the natural accumulation of ice and snow from its platform, nor any duty to warn of the existence of such natural accumulation. As there was no evidence that the ice on the platform where plaintiff fell was anything other than a natural accumulation, we find that the trial court did not err in granting the CTA's motion for directed verdict on this basis.

In so holding, we recognize the dangers posed by natural accumulations of snow and ice. The absence of a duty to remove them "does not rest upon the notion that the conditions presented by such accumulations are safe. To the contrary, the hazards presented have always been acknowledged, but the imposition of an obligation to remedy those conditions would be so unreasonable and impractical as to negate the imposition of a legal duty to do so." Trevino v. Flash Cab Co., 272 Ill. App. 3d 1022, 1029-30 (1995).

III. Application of Natural Accumulation

Rule Plaintiff next argues that even if the natural accumulation rule is applied to this case, the jury found that the CTA could have allowed plaintiff to leave its train at a place on the platform that was not covered in snow or ice. Thus, she argues, the natural accumulation rule does not relieve the CTA of its duty to provide plaintiff with a safe place to alight. She argues that there is no evidence in the record to support the appellate court's determination that requiring the CTA to provide a safe place to alight without engaging in snow removal would impose an unreasonable burden on the CTA and would bring the transit system to a halt. She argues that the CTA never introduced any evidence as to how it would have been inconsistent with the practical operation of the CTA's train to provide plaintiff with a safe place to alight without engaging in snow and ice removal. Plaintiff refers to the testimony that a canopy covered part of the platform. Patricia Majors testified that the canopy was "very small." Anthony Morales testified that the canopy covered less than half of the platform. Nonetheless, plaintiff believes that the train operator could have let plaintiff off the train underneath the canopy. She faults the CTA for failing to produce evidence that it would not have been feasible to allow plaintiff to exit the train under the canopy. In response, the CTA argues that it was Plaintiff's burden to show that the CTA could have allowed plaintiff to alight on a safer part of the platform and thereby breached its duty to provide her with a safe place to alight from the train.

The burden to prove all the elements of a negligence claim remains on the plaintiff throughout the proceedings. It is not the defendant's burden to disprove negligence. Blue v. Environmental Engineering, Inc., 215 Ill. 2d 78, 98 (2005). The trial court ruled that the CTA had no duty to remove snow or ice from the platform. Thus, it was plaintiff's burden to prove that the CTA could have fulfilled its duty to plaintiff in another way. Plaintiff failed to do so. Plaintiff presented no evidence that it was feasible or even possible to discharge all passengers under the canopy or in some other manner that would have provided passengers with a safe place to alight. Plaintiff cannot escape her burden of proof on the issue of breach of duty by attempting to shift that burden onto the CTA. Contrary to Plaintiff's contention, she did not prove that the CTA breached its duty to her to provide a safe place to alight.

Further, plaintiff failed to prove that the last two factors in the duty analysis require the imposition of a duty on the CTA. Plaintiff argues that the magnitude of the burden of guarding against the injury was minimal because the evidence showed the danger did not arise from an ongoing ice storm, but from a three-day-old sheet of ice. We have already rejected Plaintiff's characterization of the evidence concerning the weather conditions existing both at the time plaintiff fell and for the two days preceding the accident. Further, we agree with the appellate court that it would be impractical to place a burden on the CTA to evaluate its train platforms each time a trains pulls in to determine which portion of each platform has the least accumulation of snow or ice. Plaintiff complains that the record contains no evidence supporting that conclusion. However, we may take judicial notice of the magnitude of the CTA's operations. See Fujimura v. Chicago Transit Authority, 67 Ill. 2d 506, 510 (1977). We also note that Theresa Williams of the CTA testified that, at the time of Plaintiff's accident, the CTA's red line train ran 24 hours a day, 7 days a week. Thus, the appellate court did not err in finding that imposing such a burden on the CTA would be "overwhelmingly detrimental to the efficient performance of the transit system." 391 Ill. App. 3d at 671. Accordingly, we find that the trial court should have directed a verdict in favor of the CTA on the issue of its alleged duty to provide plaintiff with a safe place to alight.

IV Willful and Wanton Conduct

Plaintiff next argues that the appellate court erred in finding that the natural accumulation rule relieved the CTA of the duty to refrain from willful and wanton conduct. The appellate court did not separately address the willful and wanton conduct issue. Instead, it noted that plaintiff must prove that a duty exists to recover for negligence or for willful and wanton conduct and that, as a matter of law, no such duty was shown. Plaintiff argues that whether a particular act or omission constitutes willful and wanton conduct is a jury question. She argues that the evidence showed the CTA knew of the dangerous icy condition of the platform where plaintiff fell for at least two days prior to the accident and it failed to take any precautions to provide plaintiff with a safe place to alight. Plaintiff points to Patricia Majors' testimony concerning the existence of the ice for the two days prior to the accident and the evidence that the CTA had various employees whose job was to check the platforms for safety, including the presence of ice and snow, and remove it and spread sand. Plaintiff notes Majors' testimony that she did not see any sand on the platform prior to or at the time of Plaintiff's fall. Thus, according to plaintiff, the CTA did nothing at all to provide plaintiff with a safe place to alight despite its knowledge of the ice on the platform.

There is no separate and independent tort of willful and wanton conduct. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274 (1994). It is regarded as an aggravated form of negligence. Sparks v. Starks, 367 Ill. App. 3d 834, 837 (2006). To recover damages based upon a defendant's alleged negligence involving willful and wanton conduct, the plaintiff must allege and prove that the defendant owed a duty to the plaintiff, that the defendant breached the duty, and that the breach was the proximate cause of the Plaintiff's injury. Abrams, 211 Ill. 2d at 257. The question of whether a duty exists is a question of law to be decided by the court. Rhodes, 172 Ill. 2d at 227.

Plaintiff rests her argument on the alleged failure of the CTA to remove ice and snow from the platform where plaintiff fell and to spread sand on the platform. As we have held, however, the CTA had no duty to remove natural accumulations of ice or snow from the platform, nor did it have a duty to warn of those conditions. Accordingly, the trial court should have directed a verdict in favor of the CTA on the issue of alleged willful and wanton conduct.

CONCLUSION

We hold that the natural accumulation rule applies in this case and that the CTA had no duty to remove natural accumulations of snow and ice from its train platform, and no duty to warn of such accumulations. We further hold that the appellate court did not err in determining that the trial court should have directed a verdict in favor of the CTA in its entirety. Accordingly, we affirm the judgment of the appellate court.

Appellate court judgment affirmed.

JUSTICE FREEMAN, dissenting:

The court today holds that the natural accumulation rule relieves common carriers of the duty to provide passengers a safe place to alight. This conclusion not only ignores the Local Governmental and Governmental Employees Tort Immunity Act, but it is also at odds with this court's case law. I therefore respectfully dissent.

Generally, whether a duty exists turns on whether the plaintiff and the defendant stood in such a relationship to one another that the law imposes on the defendant an obligation of reasonable conduct for the Plaintiff's benefit. Marshall v. Burger King Corp., 222 Ill. 2d 422 (2006). The inquiry involves four factors, including the reasonable foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Marshall, 222 Ill. 2d at 436-37. In applying this analysis, Illinois courts also impose a particular standard of care on those involved in four "special relationships" which are described in section 314A of the Restatement of Torts. Iseberg v. Gross, 227 Ill. 2d 78, 88 (2007); Restatement (Second) of Torts § 314A (1965). The four special relationships giving rise to a duty to protect another from harm are: (1) carrier-passenger, (2) innkeeper-guest, (3) business invitorinvitee, and (4) voluntary custodian — protecting under certain limited circumstances. Iseberg, 227 Ill. 2d at 88.

Applying these factors, this court has long held that a common carrier owes its passengers the highest duty of care consistent with the practical operation of its conveyances. Rotheli v. Chicago Transit Authority, 7 Ill. 2d 172 (1955). The carrier is bound to furnish the passenger an opportunity to safely alight from the conveyance and reach a place of safety. Katamay v. Chicago Transit Authority, 53 Ill. 2d 27 (1972).

This case raises the question of whether "the natural accumulation rule" relieves a common carrier of its duty to passengers where snow and ice are concerned. In Illinois, the natural accumulation rule arose in the context of municipal liability for care of public streets and sidewalks. Graham v. City of Chicago, 346 Ill. 638 (1931). Municipalities are not liable for the failure to remove natural accumulations of snow and ice. The rule has also been applied to private landowners as well. Riccitelli v. Sternfeld, 1 Ill. 2d 133 (1953). Tort Immunity Act

The General Assembly has codified the natural accumulation rule with respect to municipalities in section 3-105 of the Local Governmental and Governmental Employees Tort Immunity Act. Although the CTA is a legislatively created governmental agency, the General Assembly specifically excluded it from the Tort Immunity Act's protection. 745 ILCS 10/2-101(b) (West 2008). The legislature has also codified the rule with respect to private citizens arising from their negligent attempts to remove ice and snow from sidewalks adjoining their residences in the Snow Removal Act. See 745 ILCS 75/1 (West 2008). The legislature's action indicates its intent that the CTA not receive the benefit of the natural accumulation rule, although other local governmental agencies do, as well as homeowners. The General Assembly's action therefore forecloses the court's holding today.

Illinois Common Law

Other reasons, apart from the Tort Immunity Act, also support the conclusion that the natural accumulation rule has no application to this case. This court has never explicitly addressed whether the natural accumulation rule trumps a common carrier's duty of care. Our appellate court has concluded that the rule does apply to common carriers ( Serritos v. Chicago Transit Authority, 153 Ill. App. 3d 265 (1987); Sheffer v. Springfield Airport Authority, 261 Ill. App. 3d 151 (1994)), although I question the soundness of its analysis. The appellate court's conclusion is predicated on the fact that the natural accumulation rule shields a business invitor from any liability to invitees from the failure to remove or take other precautions against dangers inherent in natural accumulations of snow and ice. This is so even though a business invitor ordinarily owes invitees a duty of reasonable care. See generally Smalling v. La Salle National Bank of Chicago, 104 Ill. App. 3d 894 (1982); Watson v. J.C. Penney Co., 237 Ill. App. 3d 976 (1992).

The court cites McElligott v. Illinois Central R.R. Co., 37 Ill. 2d 459 (1967), as a case in which the natural accumulation rule was applied to a common carrier. This is somewhat misleading in that the Plaintiff's decedent in that case was not the carrier's passenger. Rather, he was driving a car which slid on a street which belonged to the carrier as part its right of way. As such, the duty of care owed in that case was that of ordinary care. See Katamay, 53 Ill. 2d at 31 (explaining that status of being a passenger triggers the common carrier's duty to the highest degree of care for the safety of an individual).

Applying the same reasoning, the appellate court has similarly used the rule to shield common carriers from liability to passengers from the failure to remove or take precautions against natural accumulations of snow and ice. Serritos, 153 Ill. App. 3d at 271-72. In both situations, the holdings are based on the fact that in northern climates, like ours, where ice and snow are a fact of life, people are aware of the hazards posed by such conditions, and it is impractical to require property owners and carriers to remove snow and ice. See Cronin v. Brownlie, 348 Ill. App. 448 (1952). In other words, snow and ice pose dangers that are open and obvious to all who live in climates such as ours.

The appellate court's analysis is problematic on several levels. None of the cases satisfactorily reconcile the natural accumulation rule with the duties that the law recognizes as owed to either a business invitee or a common carrier passenger. In this respect, the appellate court's holdings are at odds with this court's decision in Ward v. K mart Corp., 136 Ill. 2d 132 (1990). There, this court discussed the duties owed by a store to its customers with respect to conditions on its premises. The customer had walked into a concrete post, which he did not see because he was carrying a large mirror which obstructed his view. This court rejected K mart's contention that it had no duty to warn of the condition because it was not foreseeable that its customers would fail to observe the concrete post. We specifically recognized that the "`obviousness' of a condition or the fact that the injured party may have been in some sense `aware' of it may not always serve as adequate warning of the condition and of the consequences of encountering it." Ward, 136 Ill. 2d at 148-49, citing Restatement (Second) of Torts § 343A (1965). The defendant therefore had a duty to protect the customer from the condition. Ward, 136 Ill. 2d at 149.

In the wake of Ward, a business owner's duty of reasonable care for conditions on its premises extends to those whom it should expect will not realize the danger or will fail to protect themselves against it. According to Ward, "[w]hether in fact the condition itself served as adequate notice of its presence or whether additional precautions were required to satisfy the defendant's duty are questions properly left to the trier of fact. The trier of fact may also consider whether the plaintiff was in fact guilty of negligence contributing in whole or in part to his injury, and adjust the verdict accordingly." Ward, 136 Ill. 2d at 156-57. Ward also acknowledged the "manifest trend of the courts in this country is away from the traditional rule absolving, ipso facto, owners and occupiers of land from liability for injuries resulting from known or obvious conditions" on their land. Ward, 136 Ill. 2d at 150.

As noted, this court's adoption of the Restatement position reflected a growing judicial awareness that occupiers of premises are generally in a better position in modern society to protect the public from hazards than are invitees who must go into public places as part of daily life. This view serves to encourage landowners to repair defects, rather than to keep them "open and obvious" in order to avoid liability under the traditional approach. It thus appropriately balances the interests of landowners and invitees by setting out "a requirement of due care to make the conditions reasonably safe — a requirement that might well be satisfied by warning or obviousness in any given case, but that would not be so satisfied invariably." 5 F. Harper, F. James D. Gray, The Law of Torts § 27.13, at 241 (2d ed. 1986).

Ward's reliance on section 343 of the Restatement has significance to the application of the natural accumulation rule. Simply put, the rule is inconsistent with the principles stated in section 343 because it dilutes the owner's duty and undermines basic principles of public responsibility. Hammond v. Allegretti, 262 Ind. 82, 311 N.E.2d 821 (1974). Courts in other jurisdictions have recognized as much. See Kremer v. Carr's Food Center, Inc., 462 P.2d 747 (Alaska 1969) (relying on Restatement to reject the natural accumulation rule). For example, in Kremer v. Carr's Food Center, Inc., a grocer's customer fell on an icy rut on an unsalted ice-and snow-covered parking lot maintained for the use of the grocer's customers. The Alaska Supreme Court held that the case was governed by existing Alaska tort case law which approved the definition of the duty owed by a possessor of land to an invitee as set forth in section 343 of the Restatement:

I note that Kremer was cited with approval by this court in Ward. Ward, 136 Ill. 2d at 150.

"Section 343 is controlling here. A jury could have found: (a) that Carr's possessed the parking lot and knew the condition of its surface, (b) that Carr's should have realized that this condition involved an unreasonable risk of harm to its business invitees, (c) that Carr's should have expected that its business invitees would not discover or realize the danger, or should have anticipated that they would fail to protect themselves against a danger they did discover or realize, or should otherwise have anticipated harm to invitees despite the fact that the danger was known or obvious to them, and (d) that Carr's failed to exercise reasonable care to protect business invitees, such as [plaintiff], from the dangerous surface conditions in its parking lot." Kremer, 462 P.2d at 749-50.

Relevant here too is the court's thoughts on the weather:

"Alaska's climatic conditions do not metamorphize all risks arising from ice and snow conditions into reasonable risks for the business invitee. Nor are we persuaded by appellee Carr's policy argument that in Alaska it would result in unreasonable costs to the private-commercial possessor of land to require the possessor to clear ice and snow, or otherwise remedy conditions which amount to unreasonable risks of harm to its business invitees." Kremer, 462 P.2d at 752.

The court noted that the "mere fact" that "snow and ice conditions prevail for many months throughout various locations in Alaska" was not "in and of itself sufficient rationale for the insulation of the possessor of land from liability to his business invitee." Kremer, 462 P.2d at 752.

Similarly, the Michigan Supreme Court cited its recognition of the principles in section 343 of the Restatement as the basis for its overruling of the natural accumulation rule. Quinlivan v. Great Atlantic Pacific Tea Co., 395 Mich. 244, 235 N.W.2d 732 (1975). The court explicitly rejected the "the prominently cited notion that ice and snow hazards are obvious to all and therefore may not give rise to liability." Quinlivan, 395 Mich, at 261, 235 N.W.2d at 740. See also Isaacson v. Husson College, 297 A.2d 98 (Me. 1972); M. Polelle, Is the Natural Accumulation Rule All Wet? 26 Loy. U. Chi. L.J. 631, 646-48 (1995) (noting that most states have rejected the natural accumulation rule in favor of a standard of due care).

As I indicated earlier, the appellate court's application of the natural accumulation rule to common carriers was predicated on the basis that the rule shields business owners from liability for their invitees. That rationale is questionable in light of this court's decision in Ward and its reliance on section 343 of the Restatement of Torts. For that reason, I would not apply the rule to common carriers.

Conclusion

In view of both Illinois statutory and common law, I would hold that a common carrier's standard of care trumps the natural accumulation rule. That is, the duty of care should extend to the kind of risk encountered by plaintiff here, a risk which is not only foreseeable but is likely to cause injury to passengers. It appears from the trial testimony that the CTA has employees whose specific job responsibilities include checking for safety from snow and ice. Therefore, it is not unreasonable or impractical to impose such a duty on the carrier as the court today states. 238 Ill. 2d at 232-33. Certainly, it is not unduly burdensome for a conductor to warn passengers as they alight from the train to watch for ice on the platform. This would not impose any greater burden than already imposed on the CTA as to other sorts of open and obvious conditions, such as an extended platform flat or unnatural accumulations of water and ice. Nor would it render the CTA absolutely liable whenever a passenger slipped on ice or snow because, under Ward, a jury would have to decide whether the parties acted reasonably.

I must also point out that today's decision is at odds with this court's recent decision in Marshall v. Burger King Corp., 222 Ill. 2d 422 (2006). There, a majority of this court held that a special relationship, standing alone, is sufficient to establish the affirmative duty to protect a business invitee from the tortious conduct of a third party. The plaintiff, who was in the Burger King restaurant, was injured by a car which crashed through the wall of the building. The court held that it was a jury question as to whether Burger King's decision not to have concrete pillars and poles outside the restaurant comported with its duty to its patrons. If Burger King has a duty to protect its diners from an airborne car, then the CTA should also have a duty protect its passengers from icy conditions on its train platforms. See J. Powell, Marshall v. Burger King Corp.: Making a Mess of "Duty" for Businesses in Illinois, 28 N. Ill. U. L. Rev. 95, 95 n. 1 (Fall 2007).

Finally, I am disappointed by the court's failure to acknowledge any of the legal arguments made in this dissent, even though these arguments were raised by the parties. Such a failure unfortunately serves only to leave the impression of a result-oriented approach to judicial decisionmaking that undercuts public confidence in the courts. The parties, as well as the people of this state, deserve opinions from this court which are in harmony with the statutes passed by our legislature and which reconcile decisional law. As I have pointed out, the General Assembly has not given the CTA the benefit of the natural accumulation rule. This represents an explicit statement of the public policy of this state that I, unlike my colleagues, am unwilling to ignore. By its actions today, the court has indicated that it can better form the public policy of this state than can the General Assembly, even though this court regularly states that it is the General Assembly that is the branch of government uniquely suited for that role. See Boub v. Township of Wayne, 183 Ill. 2d 520, 535 (1998). In Chicago, when a snowstorm hits, elected officials often tell citizens to stay off of the roads and to use public transportation in order to facilitate snow removal measures. Although municipalities are immunized by the Tort Immunity Act from liability for snow removal, the CTA is not, which serves to encourage citizens to use it as directed by city officials. Today's decision ignores the protection that the General Assembly has seen fit to give the users of the CTA and puts those citizens who follow officials' directions in potential harm's way with no recourse for the damages they might incur if injured on an icy CTA platform. I, therefore, would reverse the decision of the appellate court and reinstate the jury's verdict in favor of plaintiff.

JUSTICE KILBRIDE joins in this dissent.

Dissent Upon Denial of Rehearing

JUSTICE FREEMAN, dissenting:

The natural accumulation rule — or the "Massachusetts rule" as it is commonly known and referred to in treatises and courts around the nation (W. Prosser W. Keeton, Torts § 61, at 427-28 (5th ed. 1984)) — is the basis for the majority's decision in this case. The "Massachusetts rule" allows a property owner to skirt liability for failing to remove a natural accumulation of snow and ice.

Significantly, within one week of the issuance of the court's opinion in this case, the Supreme Judicial Court of Massachusetts unanimously did away with the "Massachusetts rule" in Papadopoulos v. Target Corp., 457 Mass. 368, 930 N.E.2d 142 (2010). With that decision, Massachusetts has now aligned itself with the majority of states which follow the reasonable care standard that I outlined in my original dissent.

Recognizing the significance of that decision, the plaintiff now seeks rehearing on the point, urging that this court at the very least reconsider the case in light of Papadopoulos.

Not surprisingly, the court ignores the request. I say not surprisingly because the court previously ignored the direct implications of the Tort Immunity Act for this case or the viability of the natural accumulation rule in the aftermath of this court's decision in Ward v. K mart, as I pointed out in my original dissent. Papadopoulos presents the court with another opportunity to explain why it insists on perpetuating a rule that is obsolete and no longer has a basis in modern Illinois tort law regarding premises liability. The court passes on this opportunity and continues to be content simply to stand by its "recognition" of the dangers posed by natural accumulations of snow and ice. To the court, imposing an obligation to remedy those conditions "`would be so unreasonable and impractical as to negate the imposition of a legal duty to do so.'" 238 Ill. 2d at 232-33, quoting Trevino v. Flash Cab Co., 272 Ill. App. 3d 1022, 1029-30 (1995). These arguments were the central reason for the creation of the Massachusetts rule, which even the Massachusetts supreme court has now abandoned.

The Massachusetts court rejected the notion that liability is negated based on the impracticalities or the unreasonableness of snow and ice removal:

"This argument [ i.e., unreasonableness and impracticality in northeastern winter climate] has proven unpersuasive to every other Supreme Court in New England, which have all rejected the so-called Massachusetts rule of natural accumulation. The Supreme Court of Rhode Island cogently defeated this argument by stating:

`We believe that today a landlord, armed with an ample supply of salt, sand, scrapers, shovels and even perhaps a snow blower, can acquit himself quite admirably as he takes to the common passageways to do battle with the fallen snow, the sunmelted snow now turned to ice, or the frozen rain. We fail to see the rationale for a rule which grants a seasonal exemption from liability to a landlord because he has failed to take adequate precautions against the hazards that can arise from the presence of unshoveled snow or unsanded or salt-free ice found in the areas of his responsibility but yet hold him liable on a year round basis for other types of defects attributable to the workings of mother nature in the very same portions of his property.' Fuller v. Housing Auth. of Providence, 108 R.I. 770, 773, 279 A.2d 438 (1971)." Papadopoulos, 457 Mass. at 380, 930 N.E.2d at 151-52.

I also take issue with the court's implicit concern that to impose liability here would somehow overburden the CTA. As the Massachusetts court recognized, the use of a reasonable care standard does not impose any "special burdens" on property owners:

"If a property owner knows or reasonably should know of a dangerous condition on its property, whether arising from an accumulation of snow or ice, or rust on a railing, or a discarded banana peel, the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against the danger." Papadopoulos, 457 Mass. at 383, 930 N.E.2d at 154.

According to the Massachusetts court, under the reasonable care standard it is for the finder of fact to determine "what snow and ice removal efforts are reasonable in light of the expense they impose on the landowner and the probability and seriousness of the foreseeable harm to others." Papadopoulos, 457 Mass. at 384, 930 N.E.2d at 154. More importantly, the court acknowledged that the use of such a standard "does not make a property owner an insurer of its property; `nor does it impose unreasonable maintenance burdens.'" Papadopoulos, 457 Mass. at 384, 930 N.E.2d at 154, quoting Mounsey v. Ellard, 363 Mass. 693, 709, 297 N.E.2d 43, 53 (1973). Rather, under the standard, the snow removal

"reasonably expected of a property owner will depend on the amount of foot traffic to be anticipated on the property, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal. Therefore, while an owner of a single-family home, an apartment house owner, a store owner, and a nursing home operator each owe lawful visitors to their property a duty of reasonable care, what constitutes reasonable snow removal may vary among them." Papadopoulos, 457 Mass. at 384, 930 N.E.2d at 154.

In light of the above, I continue to believe that the court's decision in this case is wrong on both a statutory and a common law basis. I would grant rehearing so that this court can issue an opinion which does not ignore the important issues raised in this case.

JUSTICE KILBRIDE joins in this dissent.

MARIANNA KRYWIN, Appellant, v. CHICAGO TRANSIT AUTHORITY, Appellee.

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