“Natural Accumulation Rule” Deemed Instructive in Non-Snow/Ice Premises Case

By Anthony J. McMahon

In Kelly and Dale Pageloff v. Maxine Graumer and Ruffit Park, __N.E.2d___ (3^rd Dist. 2006) the Third District affirmed summary judgment in a premises liability case where an accumulation of falling nuts from a tree were the cause of the loss. In its holding the Court found “instructive” the natural accumulation rule” typically reserved for snow and ice cases.

The facts of the loss are straight-forward. Plaintiff rented a camping spot at Ruffit Park located in Whiteside County, Illinois to enjoy a long Labor Day weekend. Their favorite spot at the park (which was located under a walnut tree) was reserved. The plaintiff’s had camped at Ruffit park many times in the past and usually did so in this very same location. During their stay the tree began dropping its walnuts in great quantities which was not uncommon (the tree was doing what it naturally was supposed to do this time of year). The walnuts would fall and ultimately accumulate on the ground surrounding the camper. Plaintiff used a rake and broom to clean up the nuts. At no time did the plaintiffs request to be moved to a different location. While cleaning up the camp site prior to leaving, Mrs. Pageloff stepped on the walnuts severely injuring her left ankle.

The Plaintiffs filed a two-count complaint alleging negligence (premises liability) and loss of consortium. Defendant brought a motion for summary judgment arguing that they did not have a duty to clean up the walnuts or warn plaintiff because the risks associated with the walnuts were open and obvious. Defendant also argued that plaintiff assumed the risk of injury by choosing to camp at Ruffit Park. The trial court granted defendant’s motion for summary judgment and this appeal followed.

The Third District’s holding in affirming summary judgment focused on whether the defendant owed the plaintiffs a legal duty to clean up the walnuts or at least warn them of the hazard. A business owner owes his invitee a duty to exercise a reasonable duty of care. Illinois law recognizes four factors in determining whether a legal duty exists. They are: 1.) the likelihood of injury; 2.) the reasonable foreseeability of such injury; 3.) the magnitude of the burden of guarding against injury; and 4.) the consequences of imposing that burden on the defendant. The court found that the last two factors (factors 3 & 4) mediated heavily against finding a duty because the magnitude of guarding against injury would be beyond onerous and imposing such a burden on a landowner would have obvious consequences. The court stated in dicta, “Like the snow falling from the sky in winter, nuts fall from walnut trees in the late summer.” And it is here that the court held that, while not controlling, the natural accumulation rule was “instructive.”

The Court held that a landowner does not have a duty to keep his premises safeguarded against potential dangers of naturally accumulated snow and ice because it would be unreasonable to force a landowner to expend money and labor necessary to constantly keep the area safe. The court further held that, “In our opinion, it would be no less onerous to require a landowner to remove all walnuts that fall from trees on his property, than it would be to require removal of all natural accumulations of snow and ice.” The court also held that there was no duty to warn the plaintiffs of the inherent risks of wooded campgrounds because where there are trees, there will likely be twigs, branches, nuts, or leaves on the ground below them. Thus, a warning would only tell campers what they already know. The court did not address the assumption of risk claim presented by defendants, but found in dicta that plaintiff clearly assumed risks associated with the falling or fallen walnuts.

The Plaintiffs argued that the walnut trees were an integral part of the Ruffit Park’s commercial enterprise, that the walnuts which fall from these trees are inseparable from the trees, and therefore, defendant essentially placed them on the ground thereby causing plaintiff’s injury. The court held that the case law relied upon by plaintiff was clearly distinguishable in that they involved foreign substances actually placed on the land by the owners of grocery stores, restaurants or supper clubs.

What we learn here is that falling detritus from trees, bushes, etc. may, as premises liability law continue to develop, be subject to the “natural accumulation” rule. On the other hand, this case is an extreme example where the plaintiffs were clearly on notice of the hazard and probably had witnessed these same nuts falling from the tree in the past. I suspect that if the tree had been “sick” and leaves, nuts, etc. where falling to the ground during the off-season and the property owner had notice, the result may have been different. Keep an eye out for those situations where this decision may come in handy or where it is used against your client.