Illinois Official Reports
Appellate Court
St. Martin v. First Hospitality Group, Inc., 2014 IL App (2d) 130505
Appellate Court CHARLES L. ST. MARTIN, Plaintiff-Appellant, v. FIRST
Caption HOSPITALITY GROUP, INC., d/b/a Hilton Chicago/Indian Lake
Resort, Defendant-Appellee.
District & No. Second District
Docket No. 2-13-0505
Filed May 1, 2014
Held In an action for the injuries plaintiff suffered when he tripped on a
(Note: This syllabus defect in a sidewalk at the entrance to defendant’s hotel, the trial court
constitutes no part of the properly entered summary judgment for the hotel based on the
opinion of the court but de minimis rule, under which there is no duty to repair de minimis
has been prepared by the defects in sidewalks, notwithstanding defendant’s contention that the
Reporter of Decisions rule should not be applied because the defect was near the hotel’s door
for the convenience of and that there were questions of fact about other aggravating factors.
the reader.)
Decision Under Appeal from the Circuit Court of Du Page County, No. 11-L-632; the
Review Hon. Patrick J. Leston, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas J. Manzella and William J. Rock, both of Block, Klukas &
Appeal Manzella, P.C., of Joliet, for appellant.
Melissa A. Murphy-Petros and William S. Cook, both of Wilson,
Elser, Moskowitz, Edelman & Dicker, LLP, of Chicago, for appellee.
Panel 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. 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.
¶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
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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 exists, 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
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
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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.
¶ 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 1⅛ 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 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.
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¶ 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 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,
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
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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
¶ 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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