2017 IL App (1st) 170168
No. 1-17-0168
Fourth Division
September 29, 2017
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
RHONDA BARRETT, )
)
Plaintiff-Appellant, )
)
v. ) Appeal from the Circuit Court
) of Cook County.
FA GROUP, LLC, an Illinois Limited Liability Company; )
and 87th FISH CORPORATION, an Illinois Corporation, ) No. 15 M1 301591
)
Defendants-Appellees ) The Honorable
) Patricia O’Brien Sheahan,
(Red Pepper’s Lounge, Inc., an Illinois Corporation; ) Judge Presiding.
Whale Fish and Chicken, Inc., an Illinois Corporation; )
Whale Beef and Pizza, Inc., an Illinois Corporation; and )
Whales Fish and Chicken II, an Illinois Corporation; )
Defendants). )
)
______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices McBride and Ellis concurred in the judgment and opinion.
OPINON
¶1 Plaintiff Rhonda Barrett was injured when she stepped in a parking lot pothole and fell.
The parking lot was allegedly owned by defendants FA Group, LLC, and 87th Fish
Corporation. Plaintiff filed suit against defendants, alleging that they had negligently
maintained the parking lot and failed to warn of a dangerous condition. Defendants filed a
motion for summary judgment, arguing that the size of the pothole was considered de
No. 1-17-0168
minimis and was not actionable as a matter of law. The trial court granted summary judgment
in defendants’ favor, and plaintiff now appeals. For the reasons that follow, we reverse.
¶2 BACKGROUND
¶3 On July 1, 2015, plaintiff filed a complaint against a number of businesses, including
defendants, 1 alleging that plaintiff was injured on October 28, 2013, when she “stepped in a
pot hole and fell” in a Chicago parking lot due to defendants’ negligence.
¶4 On September 17, 2015, FA Group, LLC (FA Group), and 87th Fish Corporation (87th
Fish), filed a joint answer to plaintiff’s complaint. The answer admits that 87th Fish owned
and operated the parking lot, but denies all other allegations as they relate to either FA Group
or 87th Fish. Defendants also raised the affirmative defense that plaintiff did not exercise
ordinary care for her own safety and, therefore, was contributorily negligent.
¶5 The parties engaged in discovery beginning on December 4, 2015, when the trial court
ordered the parties to conduct their discovery with adequate time such that they would
complete all discovery and scheduled depositions by March 18, 2016. On June 28, 2016,
plaintiff filed a motion to reopen and extend discovery, claiming that defendants never
produced their representative for deposition by the end of the discovery period; plaintiff did
not explain the three-month delay in filing her motion to reopen discovery. Attached to the
motion was a March 10, 2016, notice of deposition to defendants that had scheduled a
deposition of “persons most knowledgeable of the condition of the subject parking lot” for
March 18, 2016. On July 18, 2016, the trial court denied plaintiff’s motion for reopening and
1
On December 15, 2015, the trial court granted plaintiff’s motion to voluntarily dismiss
defendant Whale Fish and Chicken II without prejudice. On January 5, 2016, the trial court entered
default judgments against defendants Red Pepper’s Lounge, Whale Fish and Chicken, and Whale Beef
and Pizza. Only FA Group, LLC, and 87th Fish Corp., are parties to the instant appeal.
2
No. 1-17-0168
extending discovery for the purpose of deposing defendants’ representative. The trial court’s
order did not explain the basis for its denial.
¶6 On August 11, 2016, defendants filed a motion for summary judgment. The motion
claimed that defects under two inches in height are considered de minimis and are not
actionable, and that defendants were entitled to summary judgment based on uncontroverted
evidence that the depression plaintiff alleges she tripped on had a height difference no greater
than half an inch.
¶7 Defendants attached plaintiff’s discovery deposition to their motion for summary
judgment. In her deposition, plaintiff testified that she fell at approximately 10 p.m. on the
night of October 28, 2013, while walking to her vehicle in defendants’ parking lot after
leaving the Red Pepper Lounge. Plaintiff had parked her vehicle in the parking lot; at the
time she parked in the lot, there were “a significant amount” of vehicles in the parking lot.
¶8 Plaintiff was shown a Google Maps street view image of a parking lot that plaintiff
confirmed was an accurate portrayal of the size and layout of the parking lot in which she
fell. 2 The Google Maps image was also attached to the motion for summary judgment 3 and
appears to portray a small parking lot that was located between two businesses: the Red
Pepper Lounge, on the left side of the lot, and Whales Fish, on the right side of the lot. The
left side of the lot appears to have approximately 10 to 12 angled parking spots along the
length of the lot, taking up approximately one third of the width of the lot. The right side of
the lot appears to have no designated parking spaces, although the image shows a vehicle
2
The image was from October 2015, and plaintiff testified that “this parking lot looks like it’s
been done now,” but testified that the layout and size of the parking lot remained the same as it had been
at the time of her fall.
3
The images attached to the motion for summary judgment are poor quality copies. However, the
parties supplemented the record on appeal with better-quality versions of those images.
3
No. 1-17-0168
parked alongside the Whales Fish restaurant. There is a dumpster in the back right corner of
the lot, behind the Whales Fish building, with a vehicle parked in front of the dumpster,
behind the building; only the front of the vehicle is visible in the image.
¶9 Plaintiff was asked to mark an “X” on the Google Maps image of the parking lot to
approximately identify where the depression that allegedly caused her fall was located. The
plaintiff marked an “X” surrounded by a circle approximately halfway down the length of the
lot. The “X” is located on the right side of the lot, approximately one third of the lot’s width
away from Whales Fish.
¶ 10 Plaintiff also identified an exhibit that portrayed “[t]he sign for the first five spots for
Whales Fish customers.” 4 She testified that this sign was located on the wall on the left side
of the Google Maps image—on the wall belonging to the Red Pepper Lounge, near the front
of the lot. She testified that she interpreted the sign as referring to the five angled parking
spots closest to the sign.
¶ 11 Plaintiff testified that, at the time she fell, the parking lot was “fairly dark.” There were
vehicles parked in the parking lot, including in the spots closest to the Red Pepper Lounge,
but she was unable to estimate how full the lot was because “[t]he parking lot was dark.”
When asked whether there were any artificial sources of light, she testified that “[t]here may
have been one dim light” near the sign reserving parking spaces for Whales Fish customers.
Plaintiff testified that people were also parking their vehicles at the back of the lot parallel to
the buildings, in the same direction that the vehicle in the Google Maps image was parked
alongside the Whales Fish building. Plaintiff parked her vehicle in the same way, near the
back right corner where the dumpster was located in the Google Maps image, parking in
4
This exhibit was not attached to the motion for summary judgment and is not included in the
record on appeal.
4
No. 1-17-0168
front of a different vehicle and blocking that vehicle; plaintiff spoke to that vehicle’s driver,
who was still in the vehicle at the time, and agreed to move her vehicle out of the way when
the other woman wished to leave.
¶ 12 Plaintiff testified that she had been in the Red Pepper Lounge with friends for
approximately an hour when she was asked to move her vehicle by the owner of the vehicle
plaintiff had blocked in. Plaintiff left the Red Pepper Lounge to move her vehicle and began
walking toward her vehicle when “I must have stepped down into the hole. *** [T]he heel of
my shoe went down into the broken asphalt—the pothole, and it wedged between there. The
front of my foot was still in my shoe, and it jolted me forward. I tried to break my fall. The
concrete literally ate [my] knee and my face. I saw a white light, and everything went black.”
¶ 13 Plaintiff testified that she was not using her phone while she was walking to her vehicle
and that, immediately prior to her fall, she was “looking around the parking lot to see if there
were any suspicious characters, and—I mean, I paid attention to my surroundings.” When
asked whether she was looking down at the time of her fall, she testified that “I’m looking
around. I know I looked down at one point when I was walking towards my car. Ladies
watch their step when they’re walking.” She testified that she had not walked across the
parking lot when entering the Red Pepper Lounge. Instead, when she exited her vehicle, she
walked to the sidewalk, which she followed around Whales Fish and to the Red Pepper
Lounge. However, when she exited the Red Pepper Lounge to move her vehicle, she walked
across the parking lot.
¶ 14 Plaintiff testified that there was a height difference between the surface of the parking lot
and the area where she fell, testifying that “[i]t was a pothole.” Plaintiff was unable to
estimate “precisely” how much of a height difference was present, testifying only that “I
5
No. 1-17-0168
stepped into it.” She testified that there was “some broken up asphalt or there was some
ground under the asphalt. The heel of my shoe went down into it” and became stuck inside
the ground, causing her to jolt forward and fall; the shoe remained stuck inside the hole after
the fall until a friend pulled it out. She placed her hands out to brace her fall and the corner of
her phone hit her eye when she fell.
¶ 15 Plaintiff testified that the fall knocked her unconscious, and that she injured her right
knee and right eye in the process. After returning to consciousness, she needed help to stand
up and move to her vehicle, had cuts and bruising on her face, and had broken blood vessels
in her eye. She testified that she spent several hours in the hospital, had headaches for a
week, had blurry vision for a few weeks, was unable to work for a month, and had trouble
both walking and performing normal activities for a period of six months while her knee was
healing.
¶ 16 Plaintiff was presented with two photographs of the parking lot that were taken on her
behalf on the day after her fall, 5 which she testified accurately depicted the condition of the
parking lot at the time of her fall. She marked the location of her fall on one of the
photographs, testifying that “I don’t know if it was asphalt or broken ground underneath the
broken asphalt, but the heel of my shoe went down in there.” The images appear to have been
5
One photograph was attached to the motion for summary judgment, while the other was attached
to plaintiff’s response to the motion for summary judgment. These photographs were purportedly
reproduced in the supplemental record on appeal. However, we note that one of the photographs appears
to have originally been in a landscape page orientation but was reproduced in a portrait page orientation,
resulting in the reproduced image cutting off the sides of the original image, along with the exhibit
sticker. The pothole which is at issue on appeal appears in both the original and reproduced images. Both
photographs in the supplemental record contain no markings, despite plaintiff being asked to mark one of
the photographs during her deposition; the images attached to the motion for summary judgment and
response are of such poor quality that it is impossible to determine whether they contain plaintiff’s
markings. However, a better-quality copy (though still of poor quality) of the exhibit plaintiff was asked
to mark is also attached to a motion filed by plaintiff. In that image, a faint “X” can be observed on the
larger of the two depressions depicted in the image, near the far end of the depression.
6
No. 1-17-0168
taken from the back of the parking lot, facing the front, so the pothole appears on the left side
of the images and the angled parking spots appear on the right side. Both images show two
depressions in the surface of the parking lot, located in close proximity to each other. The
bigger of the two is a sizable depression, possibly up to a few feet in length; the depression is
an irregular shape, but is longer than it is wide. The smaller of the two appears to be
approximately a third to half the size of the bigger depression and appears to be equally long
and wide. There does not appear to be any loose debris inside either depression, but it is
impossible to tell with any certainty. The photographs do not contain any markings as to
scale, so it is impossible to determine how deep the depressions are. However, there is a
sufficient difference between the surface of the parking lot and the depth of the depressions
such that there is a dark band of shadow delineating the border of the depressions.
¶ 17 Also attached to the motion for summary judgment was the August 1, 2016, affidavit of
Mohammed Nofal, the owner of both defendants FA Group and 87th Fish. In the affidavit,
Nofal averred that on October 28, 2013, 87th Fish operated Whales Fish and owned the
adjacent parking lot. Noval averred that he “routinely visited” the premises during October
2013, and that the Google Maps image showed the Whales Fish and the adjacent parking lot.
Noval averred that the only marked parking spots in the parking lot appeared on the left side
of the image, along the Red Pepper Lounge, and “[a]side from these marked angle parking
spots, there are no other marked parking spots where parking was permitted in the lot on
October 28, 2013.” Noval also averred that the depression in the parking lot that plaintiff had
marked 6 during her deposition “did not have a height difference of greater than 0.5 inches
6
Again, the image of the depression attached to the motion for summary judgment is of such poor
quality that no markings, if there are any present, can be observed, and the better-quality image provided
in the supplemental record on appeal does not contain any markings. However, in the copy of the image
7
No. 1-17-0168
between the depression and surrounding area in the parking lot on or around October 28,
2013.”
¶ 18 On September 6, 2016, plaintiff filed an emergency motion for discovery pursuant to
Illinois Supreme Court Rule 191(b) (eff. Jan. 4, 2013), requesting that the trial court allow
plaintiff to take Nofal’s deposition. The motion claimed that plaintiff had set a deposition of
defendants’ representatives with the most knowledge of the subject parking lot on the date of
the subject occurrence for March 18, 2016. On March 10, 2016, defendants’ counsel advised
plaintiff’s counsel that he would not be producing his clients for the deposition on March 18
due to a previously-scheduled deposition in Wisconsin. Discovery closed on March 18, 2016,
and on July 18, 2016, the trial court denied plaintiff’s motion to reopen and extend discovery
for the purpose of deposing defendants’ representatives. However, defendants attached to
their motion for summary judgment the affidavit of Noval, who “has never been disclosed,
nor was his produced for deposition.” The motion claimed that plaintiff was unable to oppose
summary judgment because material information was in control of persons unwilling to give
affidavits by reason of hostility.
¶ 19 On September 9, 2016, the trial court granted plaintiff’s motion in part, granting plaintiff
leave to take Nofal’s deposition. However, the court order provided that plaintiff would be
required to pay for Nofal’s time at the rate of $250 per hour. The order continued the motion
to September 15, 2016, “in order to set the deposition date and amend the briefing schedule.”
On September 15, 2016, the trial court entered an order that “Plaintiff’s motion is denied”
and vacated the September 9, 2016, order.
located elsewhere in the record, a faint “X” can be observed on the larger of the two depressions depicted
in the image, near the far end of the depression.
8
No. 1-17-0168
¶ 20 On October 1, 2016, plaintiff filed a response to defendants’ motion for summary
judgment, claiming that the determination that a defect is de minimis does not follow a
specified mathematical formula, as argued by defendants. She also claimed that there were
aggravating factors at the time of the incident that should bar the application of the de
minimis doctrine, including darkness, presence of vehicles, and broken pavement left sitting
inside the depression. As a result, plaintiff argued that summary judgment was precluded by
material issues of fact.
¶ 21 Plaintiff attached an affidavit to her response, averring that she tripped and fell in
defendants’ parking lot at 10 p.m. on October 28, 2013, on a pothole with a height difference
“large enough for [her] two-inch heel to get wedged in between,” and that she tripped on
broken pavement rather than a deviation in height. She further averred that it was “very
dark,” there was only “one dim light,” and she could not observe the pothole.
¶ 22 On November 17, 2016, the trial court granted defendants’ motion for summary
judgment. The trial court based its decision on the “de minimis doctrine”: that injuries caused
by defects with a height difference of less than two inches are not actionable in the absence
of aggravating factors. It concluded that plaintiff had failed to show the presence of
aggravating factors sufficient to bar the application of the de minimis doctrine. Finally, it
found that “[t]o the extent plaintiff’s affidavit conflicts with her testimony, the court will not
consider such contrary evidence.” However, it found that plaintiff’s affidavit did not contain
facts that would overcome application of the de minimis doctrine, noting that “[a]t most,
plaintiff speculates that she tripped over broken pavement in a pothole without presenting
evidence that this was the case.”
9
No. 1-17-0168
¶ 23 On December 26, 2016, pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26,
2010), the trial court found that there was no just reason for delaying either enforcement or
appeal of the November 17, 2016, order granting summary judgment to defendants. Plaintiff
filed a notice of appeal, and this appeal follows.
¶ 24 ANALYSIS
¶ 25 On appeal, plaintiff argues that the trial court erred in granting summary judgment in
defendants’ favor because there was a genuine issue of material fact as to whether defendants
breached a duty to plaintiff to keep the parking lot safe. A trial court is permitted to grant
summary judgment only “if 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
2014). The trial court must view these documents and exhibits in the light most favorable to
the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315
(2004). We review a trial court’s decision to grant a motion for summary judgment de novo.
Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). De novo
consideration means we perform the same analysis that a trial judge would perform. Khan v.
BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 26 “Summary judgment is a drastic measure and should only be granted if the movant’s right
to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102.
However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary
judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). The party
moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill.
App. 3d 618, 624 (2007). The movant may meet his burden of proof either by affirmatively
10
No. 1-17-0168
showing that some element of the case must be resolved in his favor or by establishing “ ‘that
there is an absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas, 374 Ill.
App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “ ‘The purpose
of summary judgment is not to try an issue of fact but *** to determine whether a triable
issue of fact exists.’ ” Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002)
(quoting Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)). We may affirm on any basis
appearing in the record, whether or not the trial court relied on that basis or its reasoning was
correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992).
¶ 27 “To succeed in an action for negligence, the plaintiff must establish that the defendant
owed a duty of care to the plaintiff, that defendant breached that duty, and that the breach
proximately caused injury to the plaintiff.” Choate v. Indiana Harbor Belt R.R. Co., 2012 IL
112948, ¶ 22. “The existence of a duty under a particular set of circumstances is a question of
law for the court to decide.” Choate, 2012 IL 112948, ¶ 22. In determining whether a duty
exists, we consider “(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.” Simpkins v. CSX Transportation,
Inc., 2012 IL 110662, ¶ 18.
¶ 28 “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.” St. Martin v. First
Hospitality Group, Inc., 2014 IL App (2d) 130505, ¶ 11 (citing Ward v. K Mart Corp., 136
Ill. 2d 132, 141 (1990)); see also Choate, 2012 IL 112948, ¶ 25 (“an owner or occupier of
land *** owes a duty of reasonable care under the circumstances to all entrants upon the
11
No. 1-17-0168
premises except to trespassers”). In the case at bar, defendants do not claim a lack of duty to
keep the parking lot in a reasonably safe condition. Instead, defendants claim that the pothole
that led to plaintiff’s injury was a de minimis defect and their duty of care did not extend to
repairing such a defect.
¶ 29 “If a defect is such that a reasonably prudent person would not anticipate some danger to
persons walking upon it, it is considered de minimis and is not actionable.” Morris v.
Ingersoll Cutting Tool Co., 2013 IL App (2d) 120760, ¶ 12. As the Second District has
explained, 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.’ ” St. Martin, 2014 IL App (2d) 130505, ¶ 13 (quoting 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.” St. Martin, 2014 IL App (2d) 130505, ¶ 13. “This rule stems largely from the
recognition that placing such a duty on a municipality would create an intolerable economic
burden. [Citation.] Quite simply, a municipality does not have a duty to keep a sidewalk in
perfect condition at all times.” Putman v. Village of Bensenville, 337 Ill. App. 3d 197, 202
(2003). This rule has subsequently been extended to apply to private owners and possessors
of land in addition to municipalities. See, e.g., St. Martin, 2014 IL App (2d) 130505, ¶ 13;
Morris, 2013 IL App (2d) 120760, ¶ 12; Hartung v. Maple Investment & Development Corp.,
243 Ill. App. 3d 811, 815 (1993).
¶ 30 Our supreme court has noted that “[w]hile courts are in marked disagreements as to when
the sidewalk irregularity or defect is so slight that the question is one of law, and where it is
one of fact for the jury, nevertheless, the decisions recognize that no mathematical standard
12
No. 1-17-0168
can be adopted in fixing the line of demarcation, and that each case must be determined upon
its own particular facts and circumstances.” Arvidson v. City of Elmhurst, 11 Ill. 2d 601, 604
(1957). Despite this admonition, however, Illinois courts have found that “liability generally
attaches for sidewalk defects approaching two inches in height.” Morris, 2013 IL App (2d)
120760, ¶ 13 (citing Birck v. City of Quincy, 241 Ill. App. 3d 119, 121 (1993)). “The de
minimis rule generally precludes negligence claims on lesser defects, absent aggravating
circumstances.” Morris, 2013 IL App (2d) 120760, ¶ 13.
¶ 31 In the case at bar, defendants argue, and the trial court found, that Nofal’s affidavit
established the depth of the pothole as half an inch and that there were no aggravating
circumstances preventing the application of the de minimis rule, thereby entitling defendants
to summary judgment. However, we cannot agree with this conclusion.
¶ 32 As an initial matter, defendants repeatedly refer to Nofal’s affidavit, which contained his
estimate that the depth of the pothole was half an inch, as “uncontradicted”; the trial court
also found that “[i]t is undisputed that the depth of the defect located in [the] parking lot was
less than 0.5 inch.” “When facts are established by affidavit and are uncontradicted by
opposing affidavit, those facts are taken as true and are admitted for the purpose of summary
judgment.” Harris v. Village of Fithian, 48 Ill. App. 3d 1019, 1021 (1977). However, our
examination of the record shows that Nofal’s estimate of the depth of the pothole as half an
inch was not “uncontradicted” or “undisputed.” Plaintiff attached her own affidavit to her
response to defendant’s motion for summary judgment, in which she averred that “[t]he
subject pothole had a height difference that was large enough for [her] two-inch heel to get
wedged in between.” Thus, while plaintiff did not provide an exact measurement of the depth
of the pothole—which would have been inappropriate, as she testified in her deposition that
13
No. 1-17-0168
she did not know the pothole’s exact depth—plaintiff did challenge Nofal’s half-inch
estimate. We also note that Nofal’s affidavit does not explain how he determined the depth of
the pothole; his affidavit was dated three years after the incident, the parking lot had since
been repaved, and he merely states his conclusion that the depression in the parking lot “did
not have a height difference of greater than 0.5 inches between the depression and
surrounding area in the parking lot on or around October 28, 2013.” Affidavits in summary
judgment proceedings “must consist of facts admissible in evidence as opposed to
conclusions.” Woolums v. Huss, 323 Ill. App. 3d 628 (2001); see Ill. S. Ct. R. 191(a) (eff.
Jan. 4, 2013). The affidavit had no basis under the law and should not have been considered.
See Hudson v. City of Chicago, 378 Ill. App. 3d 373, 400 (2007) (“An expert’s opinion is
only as valid as the reasons for the opinion.”). Accordingly, we do not take Nofal’s half-inch
estimate as an official measure of the depth of the pothole. It is, however, clear that the
height difference was less than two inches, as plaintiff does not claim that the pothole was
deeper than the two-inch heel of her shoe. Thus, we may safely say that the depth of the
pothole was somewhere between half an inch and two inches, which would still fall within
the purview of the de minimis rule, absent any aggravating circumstances.
¶ 33 However, examining the circumstances of the present case, we cannot say that the defect
was so minor as to be considered de minimis as a matter of law. First, it is important to
understand plaintiff’s allegations as to the actual cause of her fall. Plaintiff does not argue
that the height difference between the interior of the pothole and the surface of the parking
lot caused her to trip and fall, and does not appear to have ever made such an argument,
despite defendants’ focus on the issue of the depth of the pothole. Instead, plaintiff argues
that she stepped in the pothole and her shoe became stuck in either broken pavement or
14
No. 1-17-0168
broken asphalt within the pothole, which caused her to jolt forward and fall. This version of
events appears in both plaintiff’s deposition testimony and in her affidavit filed in response to
the motion for summary judgment. 7 Thus, plaintiff’s fall is dissimilar to the cases in which
the de minimis rule has been applied, which almost uniformly involve the plaintiff tripping as
a result of a height deviation. Since this is not that type of situation, those cases are of limited
usefulness. Defendants have cited no cases applying the de minimis rule to a situation in
which the defect in the pavement has left exposed loose debris such that an individual’s shoe
could become embedded in the debris and cause him to her to fall. The closest such case we
have discovered in our research is West v. City of Hoopeston, 146 Ill. App. 3d 538, 541
(1986), in which the trial court properly denied a directed verdict in a case involving a
quarter-inch height difference in two sidewalk slabs where the area was “broken, probably
from weathering and age” and the space between the slabs contained “a lot of loose, pebble-
like particles lying inside the gap between the slabs.” There, the appellate court found that
“the defect in level was slight; however, the broken area between the slabs was sufficiently
wide that a reasonable man could anticipate danger to persons walking upon it.” West, 146
Ill. App. 3d at 543.
¶ 34 Furthermore, despite defendants’ arguments to the contrary, we find the surrounding
circumstances to be relevant to the determination of whether the defect was de minimis. In
Arvidson, the case that first set forth the de minimis rule, our supreme court considered the
circumstances surrounding the plaintiff’s fall, such as the fact that the defective sidewalk was
near the curb of a business street, near stores and parking meters, so that it was reasonably
foreseeable that the area would be traversed by pedestrians. Arvidson, 11 Ill. 2d at 609. The
7
Plaintiff is not as specific in her complaint, alleging that she “stepped in a pot hole and fell.”
However, these allegations are not inconsistent with the more specific claims she later made.
15
No. 1-17-0168
supreme court also considered the particular way that the plaintiff’s injury occurred, in that
she stepped with her heel on the higher slab and her sole on the lower slab, and determined
that this was also reasonably foreseeable. Arvidson, 11 Ill. 2d at 609. Similarly, the supreme
court in Warner v. City of Chicago, 72 Ill. 2d 100, 104 (1978), cautioned that the
determination of whether defects were minor was a factual inquiry specific to each case,
noting that “[a]n unacceptable height variation in one location, such as a busy commercial
area where pedestrians must be constantly alert to avoid bumping into one another, may be
nonactionable in another area, such as a residential one.”
¶ 35 In the case at bar, plaintiff’s injury occurred at night, in an area with dim lighting, on
asphalt and not on a concrete sidewalk. The asphalt parking lot had a comparatively large
area of depression and, although the depth was between half an inch and two inches, the
depressed area contained broken pieces of asphalt within the depression. As noted, it was
dark with a dim light, and we have found such lighting conditions alone to be sufficient to
withstand a motion for summary judgment in the past. See Alqadhi v. Standard Parking, Inc.,
405 Ill. App. 3d 14, 19 (2010). Furthermore, the pothole as depicted in the photographs is not
small, appearing to be up to several feet long and wide, and is located in an area of the
parking lot in which there are no designated parking spaces, making it more likely for a
pedestrian to encounter it, especially when walking across a crowded parking lot. “[T]he
width and depth of the allegedly defective area should be considered in determining whether
that area is of a minor, nonactionable nature.” West, 146 Ill. App. 3d at 542. If, as plaintiff
alleges, the pothole contained broken asphalt or pavement such that a shoe could become
lodged inside the pothole, such a circumstance would be relevant to the determination of
whether the defect was actionable. See West, 146 Ill. App. 3d at 543 (“A broken, cracked
16
No. 1-17-0168
sidewalk may be defective.”). Defendants point to Morris, in which the Second District
found a defect in a loading bay to be de minimis where the alleged defect comprised less than
4% of the length of the loading bay. However, the Second District expressly noted that its
mathematical calculations “should not be viewed as an attempt to formulate a bright-line
rule.” Morris, 2013 IL App (2d) 120760, ¶ 22 n.2. Instead, the calculation was “for the
purpose of concretizing an abstract discussion and providing a readily comprehensible
illustration.” Morris, 2013 IL App (2d) 120760, ¶ 22 n.2. Moreover, the area of the defect
was merely one factor in the court’s reasoning. By contrast, in the case at bar, the other
circumstances suggest that the defect in the instant case presents a question of fact as to
whether defendants owed plaintiff and other parking lot users a duty to repair it.
¶ 36 We are similarly unpersuaded by defendants’ suggestion that plaintiff should have used
the sidewalk. First, we are not asked to determine what plaintiff should or should not have
done at this stage of the proceedings—the purpose of summary judgment “ ‘is not to try an
issue of fact but *** to determine whether a triable issue of fact exists.’ ” Schrager, 328 Ill.
App. 3d at 708 (quoting Luu, 323 Ill. App. 3d at 952). Additionally, the Google Maps image
of the lot shows that there are no sidewalks running alongside the length of the parking lot
and leading to the Red Pepper Lounge or Whales Fish. Indeed, when plaintiff testified in her
deposition that she used the sidewalk to walk along the street, around Whales Fish, and back
to the Red Pepper Lounge, this testimony led to additional questioning as to why she took
such an out-of-the-way route, with her counsel remarking that “[i]t seemed weird to me.” The
question to be asked in determining whether a duty exists is whether it was reasonably
foreseeable that such an injury would occur. See Simpkins, 2012 IL 110662, ¶ 18 (in
determining whether a duty exists, a court should consider “(1) the reasonable foreseeability
17
No. 1-17-0168
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”). Here,
we cannot say, as a matter of law, that it was not reasonably foreseeable that an individual
parking his or her vehicle in the parking lot would choose to walk across the lot instead of
using an out-of-the-way sidewalk.
¶ 37 Under the de minimis rule, a jury question on the issue of negligence “is presented only
when the defect in the sidewalk is such that a reasonably prudent man should anticipate some
danger to persons walking upon it.” Arvidson, 11 Ill. 2d at 605. In the case at bar, under the
circumstances presented in the instant case and taking the facts in the light most favorable to
plaintiff as the nonmovant, we cannot say that the defect present in defendants’ parking lot
was de minimis as a matter of law. Instead, there is a question of fact concerning the size and
depth of the pothole itself, as well as to whether defendants owed a duty to plaintiff and other
users of the parking lot to repair the pothole. Accordingly, summary judgment should not
have been granted.
¶ 38 Since we have determined that the trial court erred in granting the motion for summary
judgment, we have no need to determine whether the trial court erred in denying plaintiff
leave to depose Nofal prior to responding to the motion for summary judgment.
¶ 39 CONCLUSION
¶ 40 For the reasons set forth above, we cannot say that the pothole located on defendants’
parking lot represented a de minimis defect such that it is not actionable as a matter of law.
Accordingly, summary judgment should not have been granted in defendants’ favor.
¶ 41 Reversed.
18