Winter Strikes Again: A Reminder for Third Party Contractors for Snow Removal

November 2025

Catherine L. Carlson

On a snowy January evening, a man set out for dinner by the end of the evening he left with a full stomach and a broken shoulder. The culprit…ice.

In Moscovitch v. Westfield, et al, 2024 IL App (1st) 221453-U, Jonathan Moscovitch fell on ice outside a restaurant in a shopping mall in Skokie, Illinois. He sued both the owner of the shopping mall, Westfield, and the snow removal company, Snow Systems, Inc., with whom the shopping mall contracted to remove the snow and ice from the premises. Snow Systems moved for summary judgment which was granted and the First District Court of Appeals agreed with the lower court

The plaintiff and his wife were dining at a restaurant at the Old Orchard mall on January 17, 2020, from approximately 7:30 pm until 10:45 pm. Snow had already fallen when they arrived at the restaurant. By the time they left, the parking lot had not been salted or plowed. The plaintiff slipped in an area where there was a depression that had filled with water which froze and then was covered with snow. He broke his shoulder and was required to have surgery including the placement of metal plates and screws.

Westfield and Snow Systems had a contract in place before the incident defining the scope and work of the snow removal. As part of the contract, Snow Systems was contacted whenever snow of more than 1 inch was anticipated and was expected to respond within 2 hours. Snow Systems was responsible for the removal of snow for the entire complex including roads, parking lots, and sidewalks. Additionally, the contract established primary and secondary priorities. The first priority was the road around the mall and the entrances. The restaurant parking lot where the plaintiff fell was given a second priority. The day-to-day management of the snow removal was done by an engineering firm, Able, hired by Westfield and typically it was Able who contacted Snow Systems and coordinated the process. On the night of January 17, 2020, two employees from Snow Systems arrived around 6:30 pm and in accordance with the contract, began pre-salting the road and entrances. No one disputed the fact that at the time plaintiff fell, the parking lot the plaintiff parked in had not been cleared.

Snow Systems filed a summary judgment arguing that under Section 324A of the Restatement (Second) of Torts, the only duty Snow Systems owed to a third-party invitee, like the plaintiff, was to reasonably perform its contract with Westfield. Because the evidence showed that Snow System reasonably performed its contract, summary judgment was proper.

Section 324A of the Restatement (Second) of Torts states that

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 … (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

In other words, if Party A contracts with Party B to perform a service for the protection of third parties on Party B’s property, Party A could be liable to the third party for failing to perform with reasonable care. Illinois has recognized that snow removal contracts fall within Section 324A as snow removal is meant for the protection of third parties. For Snow Systems to be liable, it would have to be found to have failed to perform its contractual obligations with reasonable care. That was not the case here.

Snow Systems employees arrived at the time they were told to arrive, which was determined by Westfield and Able. Additionally, Snow Systems cleared and salted based on the contract starting with Priority 1 areas before moving to Priority 2 areas. There was no evidence that the Snow System employees did their work in a negligent manner. The main argument that the court used to justify upholding the summary judgment motion was that all the decisions of when to begin removal and how many employees to use was made by Westfield or Able. Snow Systems, as the court noted, was at the “beck and call” of Westfield or its agent.

There are two takeaways from this case for third party contractors. First, it is important to remember that a contractor can be liable to third parties. The liability of the third-party contractor is determined by two factors: 1) the scope defined within the contractual terms; and 2) whether the contractor performed those contractual duties with reasonable care. If the duties were not performed with reasonable care, the contractor will be found liable. Second, the determination of what is “reasonable care” will be based on the facts in the case. In this matter, the determining factor was that everything regarding the snow removal process was decided by Westfield and/or its agent and Snow Systems could not make those decisions itself. The third-party contracts for snow removal, and other actions that fall within Section 324A, should take care to carefully define the scope of work and who makes the decisions. It is important for the third-party contractors to adhere to the terms of the contract and perform them without negligence.

With the first snow already on the ground, take the opportunity to ensure that the scope of those snow and ice removal contracts is well defined and that all work is being done in line with the contract terms. Winter can be brutal, but it doesn’t last as long as lawsuit.