2018 IL App (1st) 180582
                                                                              FIRST DISTRICT
                                                                              SECOND DIVISION
                                                                              December 18, 2018

                                                No. 1-18-0582

     SHARON JORDAN,                                             )     Appeal from the
                                                                )     Circuit Court of
                                    Plaintiff-Appellant,        )     Cook County, Illinois
     v.                                                         )
                                                                )     No. 15 L 9695

     THE KROGER CO., d/b/a FOOD 4 LESS and                      )

     PETE’S LAWN CARE, INC.,                                    )     Honorable

                                                                )     Patricia O’Brien Sheahan,
                                    Defendants-Appellees.       )     Judge Presiding.

            PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.
            Justices Lavin and Hyman concurred in the judgment and opinion.

                                                  OPINION

¶1          Plaintiff Sharon Jordan was injured when she slipped and fell on ice outside a grocery

     store owned by defendant Food 4 Less. At the time of her accident, defendant Pete’s Lawn Care,

     Inc., was contracted to perform snow and ice removal on the premises. Jordan brought suit

     against Food 4 Less and Pete’s Lawn Care. Although there was no evidence of an unnatural

     accumulation of ice, Jordan argued that by entering into a snow and ice removal contract,

     defendants assumed a duty to third parties to remove natural accumulations of snow and ice from

     the premises.

¶2          The trial court granted summary judgment to defendants. Jordan now appeals. We

     affirm, finding that, as a matter of law, when a property owner contracts with a snow removal

     company to remove natural accumulations of snow and ice, the mere existence of the contract

     does not create a duty to third parties to protect them from such accumulations, absent evidence

     that the third party personally relied on the contract.
     No. 1-18-0582


¶3                                           BACKGROUND

¶4          Around 4 p.m. on November 12, 2013, Jordan went to a Food 4 Less grocery store in

     Chicago, Illinois. The temperature was below 32 degrees, but there was no snow accumulation

     on the ground. While walking up the access ramp near the store entrance, Jordan slipped and fell

     on “black ice” atop the black asphalt of the ramp. Although she did not see the ice before her

     fall, she both saw and felt it afterwards. She was taken by ambulance to Holy Cross Medical

     Center, where an x-ray revealed three bones displaced in her right ankle, requiring surgery.

¶5          At all relevant times, 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 premises. Jordan was

     not aware of either contract at the time of her fall; in a deposition, she stated that she had never

     heard of Cherry Logistics or Pete’s Lawn Care. With regard to ice removal, 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.

¶6          Cherry Logistics’ contract with Pete’s Lawn Care was significantly more detailed. In

     relevant part, subsection b (“Salting”) 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.”




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¶7               Subsection c (“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.”

¶8               Finally, subsection h (“Commencement of Services”) provided:

                        “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. ***

                        ii. Non-Business Hours: All Areas shall be free of snow, slush, and/or ice *** not

                 less than one (1) hour prior to Location opening.”

       The business hours of the Food 4 Less store were from 6 a.m. to midnight.

¶9               According to weather reports submitted by Jordan, there was light precipitation on the

       day before her accident. Around 11 a.m., when the temperature was 45 degrees, it began to rain;

       the rain changed to light snow as temperatures fell throughout the afternoon. The temperature

       reached a low of 25 degrees shortly after midnight. On the day of Jordan’s accident, there was

       no further precipitation. The temperature was below 32 degrees in the morning, rose to 33

       degrees from around 2 to 3 p.m., then dropped back below 32 degrees. It is undisputed that

       Pete’s did not perform any snow or ice removal services for Food 4 Less in November 2013

       prior to Jordan’s accident.

¶ 10             Jordan brought suit against Food 4 Less and Pete’s Lawn Care.           In her amended

       complaint, she alleged that defendants were negligent in monitoring weather conditions to




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       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.

¶ 11           Pete’s Lawn Care moved to dismiss based on the fact that it did not perform any snow or

       ice removal services on the property before Jordan’s accident and, therefore, could not have been

       negligent in the performance of such services. Jordan responded by arguing that Pete’s Lawn

       Care voluntarily undertook a contractual duty to remove ice from the premises and, as such, its

       duty was defined by the scope of its contract. The trial court denied the motion to dismiss,

       finding that “Plaintiff is a third-party beneficiary of the contract between Pete’s & Food 4 Less

       and *** Defendant may owe a duty to Plaintiff based upon the contract.”

¶ 12           Defendants then moved for summary judgment, arguing that (i) since Pete’s Lawn Care

       provided no ice removal services in November prior to Jordan’s fall, it could not have created or

       aggravated an unnatural accumulation of ice; (ii) as a matter of law, defendants had no duty to

       remove natural accumulations of ice from the property; and (iii) defendants did not have actual

       or constructive notice of the ice prior to Jordan’s fall.

¶ 13           In response, Jordan did not dispute defendants’ assertion that they did not create or

       aggravate an unnatural accumulation of ice, but she argued that “the contract between the

       Defendants created a duty to remove ALL ice in the parking lot consistent with the language of

       the contract.” (Emphasis in original.)

¶ 14           On October 30, 2017, the trial court granted defendants’ motion for summary judgment,

       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. In denying Jordan’s motion for reconsideration, the court elaborated on that

       last point, stating that “there is insufficient evidence that the contract was triggered by the



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       amount of ice on the pavement that day,” since Jordan did not see any ice in the parking lot

       before her fall.

¶ 15                                               ANALYSIS

¶ 16           Jordan argues that the trial court erred in granting summary judgment to defendants

       because (i) defendants voluntarily undertook a duty to remove natural accumulations of ice

       outside the Food 4 Less store and (ii) the trial court erred in finding that Pete’s ice removal duties

       under the contract were not triggered.

¶ 17           Summary judgment is appropriate where “there is no genuine issue as to any material fact

       and *** the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)

       (West 2016). We review the trial court’s grant of summary judgment de novo, construing the

       record strictly against the movant and liberally in favor of the nonmoving party. Williams v.

       Manchester, 228 Ill. 2d 404, 417 (2008)). To prevail, the nonmoving party must present some

       evidence that would arguably entitle her to recover at trial. Keating v. 68th & Paxton, L.L.C., 401

       Ill. App. 3d 456, 472 (2010).

¶ 18           Under the natural accumulation rule, property owners have no general duty to remove

       natural accumulations of snow and ice from their property because “ ‘it is unrealistic to expect

       property owners to keep all areas where people may walk clear from ice and snow at all times

       during the winter months.’ ” (Internal quotation marks omitted.) Allen v. Cam Girls, LLC, 2017

       IL App (1st) 163340, ¶ 29 (quoting Claimsone v. Professional Property Management, LLC, 2011

       IL App (2d) 101115, ¶ 21); see also Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 233-34

       (2010) (imposing an obligation to remove natural accumulations of snow and ice would be

       “unreasonable and impractical” (internal quotation marks omitted)). Thus, to prevail in a slip-

       and-fall case involving snow and ice, a plaintiff typically bears the burden of showing that (i) the



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       accumulation of snow or ice was unnatural and (ii) the defendant had actual or constructive

       knowledge of the condition. Hornacek v. 5th Avenue Property Management, 2011 IL App (1st)

       103502, ¶ 29.

¶ 19           Jordan does not assert in this appeal that she fell on an unnatural accumulation of ice, nor

       would the record support such an inference. Instead, Jordan argues that, per the Food/Cherry and

       Cherry/Pete contracts, defendants voluntarily assumed a contractual duty to remove natural

       accumulations of ice, and they may therefore be held liable in tort to third parties for negligently

       failing to fulfill that duty.

¶ 20           A defendant who undertakes to remove natural accumulations of snow and ice has a duty

       of reasonable care. Allen, 2017 IL App (1st) 163340, ¶ 30. In such a case, the defendant’s tort

       liability to third parties is governed by section 324A of the Restatement (Second) of Torts, which

       provides:

                        “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).




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       See Bell v. Hutsell, 2011 IL 110724, ¶ 12 (recognizing the adoption of section 324A in Illinois).

       Section 324A explicitly does not express an opinion as to whether “the making of a contract ***,

       without in any way entering upon performance, is a sufficient undertaking to result in liability

       under the rule stated in this Section.” Restatement (Second) of Torts § 324A caveat 1 (1965).

¶ 21          Jordan does not identify which subsection of section 324A she is relying on, but it is clear

       that defendants’ liability cannot be predicated on either subsection (a) or (b). Subsection (a) does

       not apply because Jordan does not claim that defendants increased the risk of harm from slip-

       and-fall accidents. She does not allege, for instance, that a premises defect caused water to pool

       and refreeze in areas where people walk (see Reed v. Country Place Apartments-Moweaqua I,

       L.P., 2016 IL App (5th) 150170, ¶ 26) or that negligent snow removal efforts led to unnatural ice

       buildup (see Webb v. Morgan, 176 Ill. App. 3d 378, 383 (1988)). Indeed, it is undisputed that

       Pete’s Lawn Care did not engage in any snow removal efforts in November prior to Jordan’s

       accident. Nor does subsection (b) apply, because, as discussed, there is no general duty to

       remove natural accumulations of snow and ice.

¶ 22          That leaves only subsection (c): reliance. Jordan does not claim that she personally relied

       on the Food/Cherry and Cherry/Pete contracts. On the contrary, she admitted in her deposition

       that she had never heard of Cherry Logistics or Pete’s Lawn Care. But liability under subsection

       (c) may be premised on reliance of the third party or “the other”—i.e., the party to whom the

       defendant undertook to provide services. Jordan’s theory of liability, construed generously, is

       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




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       Cherry/Pete contracts, to recover in tort for her injuries because Pete’s Lawn Care allegedly

       failed to fulfill its contractual duties.

¶ 23           Illinois courts are split as to whether a party who contracts to remove snow and ice, and

       then fails to do so, can be held liable under section 324A(c) to third parties who are injured by

       natural accumulations of snow and ice. Jordan urges us to follow Eichler v. Plitt Theatres, Inc.,

       167 Ill. App. 3d 685 (1988), in which the court answered that question in the affirmative. But

       there are numerous other Illinois cases that have invoked the unnatural accumulation rule to

       preclude recovery. See, e.g., McBride v. Taxman Corp., 327 Ill. App. 3d 992 (2002); Wells v.

       Great Atlantic & Pacific Tea Co., 171 Ill. App. 3d 1012 (1988).

¶ 24           In Eichler, plaintiff slipped and fell while walking across an ice-covered parking lot.

       Eichler, 167 Ill. App. 3d at 688-89. She conceded that there was no unnatural accumulation of

       ice and snow at the time of her fall. Id. at 688. Nevertheless, she brought suit against four

       defendants: (i) Urban, the landowner; (ii) Plitt, which leased the property from Urban; (iii)

       Hutensky, a neighboring landowner; and (iv) Welhausen, the snow removal contractor hired by

       Urban. Urban and Hutensky had an easement agreement whereby each of them agreed to

       remove snow and ice from their respective properties. Plitt, as part of its lease agreement, agreed

       to accept Urban’s responsibilities under the easement agreement.

¶ 25           Eichler held that summary judgment was inappropriate as to Urban and Plitt, but

       appropriate as to Hutensky and Welhausen. Id. at 689. The court reasoned that Hutensky did not

       undertake any contractual obligations regarding Urban’s land. Id. at 692. As for Welhausen, it

       only contracted to remove snow, not ice. Id. But both Urban and Plitt undertook a contractual

       obligation to remove snow and ice from the parking lot on which plaintiff fell. Based upon the

       contracts between the parties, Hutensky relied on Urban for snow and ice removal services, and



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       Urban, at least arguably, relied on Plitt.1 Thus, Eichler found that both Urban and Plitt could

       potentially be held liable to third parties for damages caused by their negligent failure to fulfill

       their contractual obligations. Id. at 692-93.

¶ 26             In reaching this conclusion, Eichler relied primarily on Pippin v. Chicago Housing

       Authority, 78 Ill. 2d 204 (1979), and Scott & Fetzer Co. v. Montgomery Ward Co., 112 Ill. 2d

       378 (1986). Both Pippin and Scott dealt with liability to third parties for negligent performance

       of a voluntary undertaking, but in a context unrelated to snow and ice removal.

¶ 27             In Pippin, 78 Ill. 2d at 206-07, plaintiff’s decedent was fatally stabbed in the lobby of a

       housing project owned and operated by the Chicago Housing Authority.                 At the time, the

       Authority had a contract with Interstate to provide security services at the building. Plaintiff

       sued both the Authority and Interstate. The trial court granted summary judgment to defendants,

       but Pippin reversed, holding that, although a landowner has no general duty to protect against

       criminal acts by third parties, both defendants could still be held liable under a voluntary

       undertaking theory. Id. 209-11. In analyzing Interstate’s liability under section 324A, the court

       stated:

                        “Interstate’s duty does not arise under either subsection (a) or (b), as plaintiff’s

                 complaint does not allege that Interstate’s conduct actually increased the risk of harm to

                 Pippin, and, as we have already determined, there was no preexisting duty on the part of

                 the Authority to provide protection in this instance.

                        Subsection (c), however, sets up reliance upon the undertaking as a separate basis

                 for finding liability. *** By contracting with Interstate for guard services, the Authority,

                 as a matter of law, relied upon Interstate to perform its undertaking.” Id. at 211.

                 1
               The court found a question of fact as to whether Urban actually relied on Plitt to remove
       snow and ice from the parking lot, since it was Urban that hired Welhausen. Id. at 693.
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       As for the Authority, Pippin held that its duty was limited by the extent of its undertaking. The

       CHA did not undertake to perform guard services itself, but it did have a duty to use reasonable

       care in hiring Interstate. Thus, the Authority could at most be liable for negligent hiring—which

       was alleged in the complaint. Id. at 210.

¶ 28          Our supreme court applied these same principles in Scott, 112 Ill. 2d 378, in which a fire

       in a storage warehouse damaged tenants’ property. One of the tenants, Montgomery Ward, had

       hired defendant Burns to install fire warning systems in the warehouse, which malfunctioned.

       The other tenants brought suit against Burns, arguing that their property was damaged because of

       Burns’ negligence in performing its contractual undertaking. Id. at 385. Scott reversed the

       dismissal of the tenants’ claims against Burns. It held that as a matter of law, Ward relied on

       Burns to perform its contractual undertaking and, therefore, Burns had a duty of care to third

       parties under section 324A(c). Id. at 390-91.

¶ 29          Initially, we observe that even if we were to follow Eichler’s application of Pippin and

       Scott to slip-and-fall cases involving snow and ice, Food 4 Less would still be entitled to

       summary judgment. As noted, Jordan did not present evidence that Food 4 Less increased the

       risk of harm from slip-and-fall accidents. Additionally, Food 4 Less did not undertake to

       perform snow or ice removal itself; it merely contracted with Cherry Logistics for that purpose.

       Thus, Food 4 Less could, at most, be liable for negligence in hiring Cherry Logistics. Pippin, 78

       Ill. 2d at 210; see also Judge-Zeit v. General Parking Corp., 376 Ill. App. 3d 573, 582 (2007)

       (property manager does not undertake a duty to plow its property merely by contracting with

       snow removal company). Because Jordan does not allege negligent hiring, Food 4 Less is not

       liable for Jordan’s injuries as a matter of law.




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¶ 30          Just as crucially, neither Pippin nor Scott involved the imposition of liability for injuries

       caused by natural accumulations of snow and ice. Cf. Tedrick v. Community Resource Center,

       Inc., 235 Ill. 2d 155, 172 (2009) (refusing to extend the rationale of Pippin to allow a medical

       malpractice action by a nonpatient third party). Notwithstanding Eichler, Illinois courts have

       repeatedly rejected the argument that the existence of a snow removal contract overrides the

       natural accumulation rule.

¶ 31          In this regard, Wells, 171 Ill. App. 3d 1012, is directly analogous to the present case.

       Plaintiff slipped on ice in a parking lot and brought suit against the snow removal contractor,

       Vasser. She did not present evidence of an unnatural accumulation of snow, but she argued that

       Vasser was negligent because he failed to completely remove snow from the premises, as was

       required by his contract with the landowner. Wells rejected this argument, stating:

              “[P]laintiff’s allegation that [Vasser] may not have performed his job in accordance with

              the terms of his contract with [the landowner] is not sufficient to impose liability. His

              obligation to comply with the contract was owed to [the landowner], not to plaintiff.

              [Citation.] Vasser’s duty to plaintiff was to abstain from negligence. Consequently,

              absent evidence of an unnatural accumulation or negligent plowing operations, there is no

              showing of an existing duty on the part of the defendants.” Id. at 1019-20.

¶ 32          Similarly, in McBride, plaintiff slipped and fell on snow and ice outside a store entrance

       and brought suit against Arctic, the snow removal contractor. McBride, 327 Ill. App. 3d at 993.

       She argued that Arctic was liable to her based on its contract with the property manager, which

       required that “ ‘all sidewalk areas shall be completely cleared of ice and snow from end-to­

       end.’ ” Id. at 994. McBride disagreed, explaining: “There have been cases in which a duty to

       third parties has been imposed on the snow-removal contractor, but the duty was only not to



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       negligently remove snow by creating or aggravating an unnatural accumulation of snow or ice.”

       Id. at 997 (citing Madeo v. Tri-Land Properties, Inc., 239 Ill. App. 3d 288 (1992); Crane v.

       Triangle Plaza, Inc., 228 Ill. App. 3d 325, 330 (1992)). In the absence of any evidence that

       plaintiff fell on an unnatural accumulation of snow and ice, McBride held that summary

       judgment for Arctic was proper, notwithstanding plaintiff’s allegation that Arctic failed to fulfill

       its duties under the snow removal contract.        Id. at 997-98; see also Flight v. American

       Community Management, Inc., 384 Ill. App. 3d 540, 544 (2008) (summary judgment for

       landowner and snow removal contractor was proper since there was no evidence that plaintiff fell

       on an unnatural accumulation of ice); Strahs v. Tovar’s Snowplowing, Inc., 349 Ill. App. 3d 634,

       639-40 (2004) (directed verdict for snow removal contractor was proper since plaintiff provided

       no factual basis for concluding she fell on an unnatural accumulation of ice).

¶ 33          Jordan urges us to follow Eichler, while defendants urge us to follow longstanding

       Illinois precedent as articulated in McBride, Wells, Flight, and Strahs. Neither party offers

       significant analysis as to why this court should favor one approach over the other.

¶ 34          But we are mindful that our supreme court recently reaffirmed the natural accumulation

       rule in Krywin, 238 Ill. 2d at 227-32 (collecting cases and holding that transit authority had no

       duty to remove natural accumulations of snow and ice from train platforms). In doing so, our

       supreme court stated that “the hazards presented [by natural accumulations of snow and ice] 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.”

       (Internal quotation marks omitted.) Id. at 232-33. Similarly, this court has observed: “ ‘The rule

       exonerating landlords from liability for natural accumulations recognizes the climatic vagaries of

       this area with its unpredictable snowfalls and frequent temperature changes. Snowstorms cannot



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       be foreseen or controlled. Thus it has been considered that another standard would impose an

       unreasonable burden of vigilance and care on landlords.’ ” Tzakis v. Dominick’s Finer Foods,

       Inc., 356 Ill. App. 3d 740, 748 (2005) (quoting Lapidus v. Hahn, 115 Ill. App. 3d 795, 801

       (1983)); see also Barber v. G.J. Partners, Inc., 2012 IL App (4th) 110992, ¶ 25 (although

       shoveling and salting are “desirable actions,” they can rarely be done perfectly, and “requiring

       such perfection would cause an unreasonable burden on property owners in this state”).

¶ 35          In light of these principles, we are persuaded to follow McBride in holding 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, at least where the third parties did not

       personally rely on the contract. Because Jordan did not present evidence that the ice on which

       she fell was an unnatural accumulation or that she relied on the Food/Cherry and Cherry/Pete

       contracts, the trial court properly granted summary judgment to defendants.

¶ 36          Schoondyke v. Heil, Heil, Smart & Golee, Inc., 89 Ill. App. 3d 640 (1980), and Tressler v.

       Winfield Village Cooperative, Inc., 134 Ill. App. 3d 578 (1985), cited by Jordan on this issue, are

       both distinguishable. In Schoondyke, 89 Ill. App. 3d at 642, a condominium resident brought suit

       against the condominium association, which assumed a duty in its bylaws to remove snow from

       common areas. Similarly, in Tressler, 134 Ill. App. 3d at 579, a tenant brought suit against her

       landlord, who stated in the tenant handbook that snow removal would be provided. Because the

       defendants had voluntarily undertaken to remove natural accumulations and had so advised the

       injured parties, both cases found that the natural accumulation rule did not apply. Schoondyke,

       89 Ill. App. 3d at 645; Tressler, 134 Ill. App. 3d at 581.      Schoondyke additionally based its

       holding on “the policy and social requirements of the condominium community.” (Internal

       quotation marks omitted.) Schoondyke, 89 Ill. App. 3d at 645.



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¶ 37          In contrast to the Schoondyke and Tressler plaintiffs, Jordan is not a resident of the

       property at issue; she is a business invitee to whom the policy and social requirements referenced

       in Schoondyke do not apply. Moreover, as discussed, she was not advised by defendants that

       they would engage in snow and ice removal for her benefit or the benefit of others. Accordingly,

       Schoondyke and Tressler do not apply here.

¶ 38          Strong policy considerations underlie the result we reach. Finding potential liability to

       third parties under circumstances where a landowner contracts for the removal of natural

       accumulations of snow and ice and where, in the absence of contract, no liability would exist,

       would serve to discourage (i) landowners from arranging for the removal of natural

       accumulations of snow and ice and (ii) contractors from agreeing to provide such services. In

       effect, Jordan’s theory of liability would expose the contracting parties to countless claims for

       falls caused by natural accumulations because the existence of the contract for snow and ice

       removal coupled with the plaintiff’s fall on snow and ice would be sufficient to create a genuine

       issue of material fact as to nonfeasance under the contract. As the expansion of liability for falls

       due to natural accumulations would significantly undercut and erode the general rule of

       nonliability, we decline to adopt Jordan’s position.

¶ 39          Jordan finally argues that summary judgment was improper in light of the trial court’s

       finding that “Plaintiff is a third-party beneficiary of the contract between Pete’s & Food 4 Less

       and *** Defendant may owe a duty to Plaintiff based upon the contract.” Initially, we observe

       that Jordan would only have rights under the parties’ contracts if she were an intended, rather

       than incidental, third-party beneficiary, which the trial court did not find.           Carlson v.

       Rehabilitation Institute of Chicago, 2016 IL App (1st) 143853, ¶¶ 14-15; see also Estate of Willis

       v. Kiferbaum Construction Corp., 357 Ill. App. 3d 1002, 1008 (2005) (there is a presumption



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       against intended beneficiary status that “can only be overcome by an implication so strong as to

       be practically an express declaration.”). More importantly, Jordan did not bring a breach of

       contract suit—her amended complaint sounds only in tort—and she does not cite any law for the

       proposition that her status as a third-party beneficiary would confer upon her rights in tort.

¶ 40                                             CONCLUSION

¶ 41          Because Jordan presented no evidence that the ice on which she fell was an unnatural

       accumulation, summary judgment for defendants was proper. We therefore need not discuss

       whether Pete’s Lawn Care’s ice removal duties were triggered under the Cherry/Pete contract.

¶ 42          Affirmed.




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