2014 IL App (2d) 130505
No. 2-13-0505
Opinion filed May 1, 2014
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
CHARLES L. ST. MARTIN, ) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant, )
)
v. ) No. 11-L-632
)
FIRST HOSPITALITY GROUP, INC., )
d/b/a Hilton Chicago/Indian Lake Resort, ) Honorable
) Patrick J. Leston,
Defendant-Appellee. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court, with opinion.
Justices McLaren and Jorgensen concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Charles L. St. Martin, appeals the trial court’s summary judgment for defendant,
First Hospitality Group, Inc. Plaintiff alleged that he was injured when he tripped and fell on an
uneven portion of sidewalk outside of a hotel owned by defendant. The trial court determined
that defendant did not owe plaintiff a duty of care, because the defect was de minimis. We affirm.
¶2 I. BACKGROUND
¶3 On January 19, 2011, plaintiff filed a complaint seeking damages for injuries he sustained
when he fell outside of the entryway to defendant’s hotel. Plaintiff alleged that, on May 10, 2010,
he tripped over an uneven surface as he approached the hotel’s entryway at approximately 9 p.m.
2014 IL App (2d) 130505
He alleged that the area had poor lighting, but he did not make any other allegations about the
nature of the area or how much foot traffic was present.
¶4 At his deposition, plaintiff testified that, on the day of the fall, he was attending a seminar
at the hotel. He went outside to smoke a cigarette at some benches 10 to 12 feet from the hotel,
where there was also an ashtray. When he returned, he tripped over uneven slabs of concrete a
couple of feet away from one of the doors at the main entrance to the hotel. Photos in the record
show that it was essentially just outside of the doors, right before the entryway rug, and under a
roof that extended over a drive-up area at the front of the hotel. One person who was in a nearby
van saw plaintiff fall and assisted him. Plaintiff injured his knee in the fall. Plaintiff stated that
the lighting was brighter as he got nearer to the entryway, because the lights were “up in the ceiling
of that thing,” and he did not think that he fell because of problems with the lighting. Plaintiff’s
brother later measured the height difference between the concrete slabs at between 1½ and 1¾
inches.
¶5 Defendant provided an exhibit of photos, purportedly taken by the hotel’s manager the day
after the fall, that show the difference at around a half-inch. The record contains photocopies of
the photos, in which it is difficult to read the ruler or see whether the ruler is held at an angle. An
expert retained by defendant observed the area on October 24, 2012, and measured the height
difference at under an inch. The expert averred that the sidewalk would heave and move during
normal winter conditions and that the varying alignments of the concrete slabs were typical,
commonplace, and expected. He opined that the area was not in need of repair or replacement
and that it did not present a hazardous condition. He did not address the condition of the area on
May 10, 2010.
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¶6 Defendant moved for summary judgment, arguing that it did not owe plaintiff a duty of
care, because the defect in the sidewalk was de minimis. Plaintiff argued that the de minimis rule
was inapplicable because of how near the defect was to the front doors and that there were issues of
fact as to whether aggravating circumstances existed. The trial court granted the motion for
summary judgment, finding that the defect was de minimis as a matter of law and further noting
that the affidavit of defendant’s expert was unrebutted. Plaintiff appeals.
¶7 II. ANALYSIS
¶8 Plaintiff contends that the de minimis rule does not apply, because the defect was near the
front doors of the hotel. He further contends that there are issues of fact about the height of the
defect.
¶9 Summary judgment is appropriate where “the pleadings, depositions, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c)
(West 2010). In determining whether a genuine issue of material fact exits, a court must construe
the materials of record strictly against the movant and liberally in favor of the nonmoving party.
See Perri v. Furama Restaurant, Inc., 335 Ill. App. 3d 825, 829 (2002). “If fair-minded persons
could draw different inferences from the undisputed facts, the issues should be submitted to a jury
to determine what inference seems most reasonable.” Menough v. Woodfield Gardens, 296 Ill.
App. 3d 244, 245-46 (1998). We review de novo the entry of summary judgment. Outboard
Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).
¶ 10 To prevail in a negligence action, the plaintiff must prove that the defendant owed a duty,
that the defendant breached that duty, and that the plaintiff’s injury proximately resulted from that
breach. Tzakis v. Dominick’s Finer Foods, Inc., 356 Ill. App. 3d 740, 745-46 (2005). The
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existence of a duty generally is a question of law and, therefore, may be resolved on a motion for
summary judgment. Ralls v. Village of Glendale Heights, 233 Ill. App. 3d 147, 154 (1992).
¶ 11 An owner or occupier of land is not an absolute insurer of the safety of an invitee. See
Hutter v. Badalamenti, 47 Ill. App. 3d 561, 563 (1977). The duty of an owner or occupier of any
premises toward invitees is that of reasonable care under the circumstances regarding the state of
the premises or acts done or omitted on them, and he must maintain the premises in a reasonably
safe condition. Ward v. K mart Corp., 136 Ill. 2d 132, 141 (1990).
¶ 12 The primary factors that a court considers in determining the existence of a duty include:
“(1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude
of the burden of guarding against the injury, and (4) the consequences of placing that burden on the
defendant.” Marshall v. Burger King Corp., 222 Ill. 2d 422, 436-37 (2006).
¶ 13 The de minimis rule originated in cases involving municipalities, where it was noted that
“[m]unicipalities do not have a duty to keep all sidewalks in perfect condition at all times.”
Gillock v. City of Springfield, 268 Ill. App. 3d 455, 457 (1994). Thus, although a municipality has
a duty to keep its property in a reasonably safe condition, it has no duty to repair de minimis defects
in its sidewalks. Putman v. Village of Bensenville, 337 Ill. App. 3d 197, 202 (2003); Hartung v.
Maple Investment & Development Corp., 243 Ill. App. 3d 811, 814 (1993). The de minimis rule
stems in large part from the recognition that municipalities would suffer an unreasonable
economic burden were they required to keep their sidewalks in perfect condition all the time.
Putman, 337 Ill. App. 3d at 202. “It is common knowledge that sidewalks are constructed in slabs
for the very reason that they must be allowed to expand and contract with changes in temperature.”
Hartung, 243 Ill. App. 3d at 816. In Hartung, we extended the de minimis rule to apply to private
owners and possessors of land. Id. at 815.
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¶ 14 Whether a height variance between two sidewalk slabs is de minimis depends on all of the
pertinent facts, and there is no simple standard to separate de minimis defects from actionable ones.
Arvidson v. City of Elmhurst, 11 Ill. 2d 601, 604 (1957); Hartung, 243 Ill. App. 3d at 814; Birck v.
City of Quincy, 241 Ill. App. 3d 119, 122 (1993). However, it is well established that, absent any
aggravating factors, a vertical displacement of less than two inches is de minimis. Thus, the
supreme court has held that, although a displacement of 2 inches in a residential area is actionable,
a variation of only 1• inches, absent more, is de minimis. Warner v. City of Chicago, 72 Ill. 2d
100, 104-05 (1978). In Birck, the appellate court held that a variance of 1⅞ inches was de
minimis. Birck, 241 Ill. App. 3d at 121-22. Finally, in Putman, we held that a one-inch
displacement was de minimis. Putman, 337 Ill. App. 3d at 202-03.
¶ 15 However, we held in Hartung that “the de minimis rule cannot be applied blindly to cover
every situation. Its application may very well depend on other factors.” Hartung, 243 Ill. App.
3d at 817. Thus, we have observed that, “[i]n a ‘busy commercial district,’ it is reasonable to infer
that a pedestrian could be sufficiently distracted to overlook an otherwise de minimis defect.”
Putman, 337 Ill. App. 3d at 205 (quoting Baker v. City of Granite City, 75 Ill. App. 3d 157, 160
(1979)). Likewise, in Repinski v. Jubilee Oil Co., 85 Ill. App. 3d 15, 20-21 (1980), the
unreasonableness of a defect was a question for the jury when, among other things, there was
evidence of commercial use of the area. See also Baker, 75 Ill. App. 3d at 160 (defect in a busy
commercial district was actionable, but it might not have been actionable in a residential area). If
there is evidence of an aggravating circumstance, whether the defendant owed a duty to the
plaintiff is a question of fact. See generally Repinski, 85 Ill. App. 3d at 20-21. But if the plaintiff
fails to provide evidence that such a circumstance exists, summary judgment is appropriate. See
Hartung, 243 Ill. App. 3d at 817. Here, plaintiff contends that the location of the defect, outside
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the entry to a commercial establishment, was an aggravating circumstance precluding the entry of
summary judgment.
¶ 16 In Hartung, the plaintiff tripped and fell on a raised portion of sidewalk near a store located
in a shopping center. The raised portion of the sidewalk was between one-half and three-quarters
of an inch, and the trial court granted summary judgment in favor of the defendant. Noting a lack
of pleading or evidence that the area was congested with traffic, we applied the de minimis rule.
Id. at 815. In doing so, we noted that it is a great burden to maintain perfect sidewalks and that to
require landowners to monitor and maintain them perfectly at all times would be harsh and
impractical. Id. at 817. Given the extreme and various weather conditions in Illinois, slight
variations in sidewalk elevations are to be expected, and sidewalks cannot be perfectly maintained
at all times. Id. at 816. We further noted that sidewalks are constructed in slabs for the very
reason that they must be allowed to expand and contract with changes in temperature. Id. Also,
imperfections in sidewalks can be avoided by pedestrians more easily than imperfections on stairs.
Id. “Moreover, because indoor flooring is not exposed to the weather and can be more easily
monitored for defects, courts have been more inclined to find smaller defects in flooring
actionable. We believe that a minor defect such as the one in the present case is one that a person
exercising ordinary care could have easily avoided. The defect is one which is routinely
encountered in an ordinary sidewalk.” Id. at 816-17.
¶ 17 Harris v. Old Kent Bank, 315 Ill. App. 3d 894, 902 (2000), illustrates when an aggravating
circumstance may prevent application of the de minimis rule. There, we declined to apply the de
minimis rule when the plaintiff specifically alleged that the defendant, a bank, failed to provide a
safe means of ingress and egress to the only entrance of its establishment. We noted that it was
not unreasonable to presume that the plaintiff could be distracted by reviewing receipts, looking
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for car keys, or looking toward her car and that the economic burden of repairing the area would
not be great. Thus, we did not apply the rule under the particular facts of the case. Id.
¶ 18 In Bledsoe v. Dredge, 288 Ill. App. 3d 1021, 1024 (1997), the Third District distinguished
Hartung and declined to apply the de minimis rule to a fall outside of a partially enclosed entryway
to a commercial building containing shops and businesses. There, the entry was described as a
large covered corridor open on the end, with marble flooring. The court noted that the existence
of shops and businesses could be expected to draw patrons to the entryway. Further, the area was
partially enclosed and was not fully exposed to the weather. The court observed our statement in
Hartung that indoor flooring that is not exposed to the weather can be more easily monitored for
defects and does not impose an equivalent of the burden of monitoring an expanse of sidewalks.
Id. Thus, the court declined to apply the de minimis rule and reversed a grant of summary
judgment. One justice dissented, stating that he would apply the de minimis rule anytime a
surface has been exposed to the elements. Id. at 1025 (Holdridge, J., dissenting).
¶ 19 Here, it is undisputed that the height variation between the concrete slabs was less than two
inches. Such a defect generally is not actionable, because it is de minimis. Further, plaintiff has
not specifically alleged or provided any evidence that an aggravating circumstance such as heavy
foot traffic, distraction, or congestion existed. Instead, the question is whether the close
proximity to the covered entryway of the commercial building was an aggravating circumstance
that removes application of the de minimis rule.
¶ 20 We apply Hartung and find that the de minimis rule applies. As we held in Hartung,
given the extreme and various weather conditions in Illinois, slight variations in sidewalk
elevations are to be expected, and sidewalks cannot be perfectly maintained at all times. Here,
while the area was partially covered, its sides were open, exposing it to the elements. Further,
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2014 IL App (2d) 130505
pedestrians can avoid imperfections in an outdoor walkway more easily than on indoor flooring.
Requiring a landowner to constantly monitor and perfectly maintain outdoor walkways that are
exposed to the elements would create an undue burden.
¶ 21 As in Hartung, we view the uneven portion of sidewalk as a minor defect that a person
exercising ordinary care could easily avoid, as it is the type of imperfection that is routinely
encountered on an ordinary sidewalk. Hartung, 243 Ill. App. 3d at 816-17. In this regard, we
note that defendant provided an affidavit from an expert stating the opinion that the area was not in
need of repair or replacement and that it did not present a hazardous condition. While that
affidavit was based on observations made well after plaintiff’s fall, it nevertheless was
uncontroverted by plaintiff, who did not present any expert testimony at all.
¶ 22 We find Bledsoe and Harris distinguishable. In Harris, we were concerned with a
specific pleading that the plaintiff failed to provide a safe means of ingress and egress to the sole
entry when the plaintiff might also have been distracted. Here, plaintiff has not alleged that he
lacked a choice of doors used to enter or exit the hotel and he has not alleged that he was distracted
or that congestion or foot traffic was an aggravating circumstance. At most, he speculates that he
might have been looking for a key or that the door mat might have obscured the imperfection,
without having presented evidence that this was actually the case. In Bledsoe, the Third District
was faced with a location that was sheltered from the elements on three sides and that had a marble
floor. That is far different from a covered drive-up entry that is still exposed to the elements and
constructed of concrete. As we noted in Hartung, indoor flooring is distinguishable from
concrete that is exposed to the elements. Thus, we apply Hartung and affirm.
¶ 23 III. CONCLUSION
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¶ 24 The trial court properly applied the de minimis rule and granted defendant’s motion for
summary judgment. Accordingly, the judgment of the circuit court of Du Page County is
affirmed.
¶ 25 Affirmed.
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