A judge denied my motion for summary judgment based on the de minimus rule because the plaintiff estimated the deviation between two pieces of cement may have been 2 inches. This was very frustrating because the plaintiff also later took a photograph showing the deviation was one inch. Rather than rely on the photograph, the judge found a question of fact existed based on the plaintiff’s testimony and her guess as to the height. All of the employees also testified the deviation was approximately an inch in height.
After receiving this ruling I decided a closer look at the de minimus rule was needed. The de minimis rule originated in cases involving municipalities, where it was noted that municipalities would not be held to a duty to keep all sidewalks in perfect condition at all times. Gillock v. City of Springfield, 268 Ill.App.3d 455, 457 (4th Dist. 1994). The de minimis rule stems from the understanding that municipalities would suffer an unreasonable economic burden were they required to keep their sidewalks in perfect condition all the time. Putman v. Village of Bensenville, 337 Ill.App.3d 197, 202 (2nd Dist. 2003). The rule was later extended to apply to private owners and possessors of land. Hartung v. Maple Investment & Development Corp., 243 Ill.App.3d 811, 814 (2nd Dist. 1993). According to the ruling in Hartung, the de minimus rule applies only to outdoor / weather exposed areas.
Whether a height variance is de minimis depends on all of the pertinent facts, and the courts assert there is no simple standard to separate de minimis defects from actionable ones. Arvidson v. City of Elmhurst, 11 Ill.2d 601, 604 (1957). However, it is well established that, absent any aggravating factors, a vertical displacement of less than two inches is de minimus.
The following is a rather exhaustive look at the case law on this subject to better understand the trend of the courts when making a de minimus ruling. All of these cases found no liability under the de minimus rule:
|Case Name / Cite||Case Facts||Size of Deviation|
|Valk v. Kroger Company, 2016 IL App (2d) 151079-U||Customer tripped and fell in a pot hole in grocery store parking lot.
|Burns v. City of Chicago, 2016 IL App (1st) 151925||Pedestrian tripped and fell on raised sensory tiles on sidewalk.
|¾ – 1 ½ inch|
|Komis v. Exel, Inc., 2016 IL App (2d) 160231-U
|Worker tripped and fell on a portion of raised sidewalk outside of Defendant’s building.||1 ½ – 2 inches|
|Fulton v. Kroger Limited Partnership, 2016 IL App (4th) 160234-U
|Customer tripped on defect in asphalt ramp from parking lot to walkway at front of store.||1 ½ inch|
|St. Martin v. First Hospitality Group, Inc., 2014 IL App (2d) 130505||Hotel guest tripped and fell on an uneven portion of sidewalk a couple of feet from the hotel’s main entrance.
|1 ½ – 1 ¾ inches|
|Morris v. Ingersoll Cutting Tool Company, 2013 IL App (2d) 120760
|Truck driver unloading at commercial facility tripped and fell in depression in asphalt in loading bay.
|1 ½ inch|
|Harms v. Village of Romeoville, 2011 IL App (3d) 100858-U
|Pedestrian tripped and fell on a city sidewalk.||1 ¼ – 1 ½ inches|
|Putman v. Village of Bensenville, 337 Ill.App.3d 197, 202 (2nd Dist. 2003)
|Pedestrian tripped and fell on city sidewalk and rendered a paraplegic.||1 inch|
|Siegel v. Village of Wilmette, 324 Ill.App.3d 903 (1st Dist. 2001)
|Pedestrian fell because of pitch and deviation in sidewalk.||1 inch|
|Barnhisel v. Village of Oak Park, 311 Ill.App.3d 108 (1st Dist. 1999)
|Pedestrian tripped and fell in crack in sidewalk.||¾ – 1 inch|
|Gillock v. City of Springfield, 268 Ill.App.3d 455 (4th Dist. 1994)||Pedestrian tripped and fell on sidewalk.||Pl failed to prove size – directed verdict granted|
|Birck v. City of Quincy, 241 IllApp.3d 119 (4th Dist. 1993)
|Pedestrian tripped and fell on city sidewalk.||1 7/8 inches|
|Hartung v. Maple Investment & Development Corp., 243 Ill.App.3d 811, 814 (2nd Dist. 1993)
|Pedestrian tripped and fell on sidewalk owned by a retailer.||½ – ¾ of an inch|
|Warner v. City of Chicago, 72 Ill.2d 100 (1978)||Pedestrian tripped and fell on city sidewalk.||1 1/8 inch|
Some aggravating factors that could prevent summary judgment even where a deviation is considered de minimus are: a busy commercial district (Putman v. Village of Bensenville, 337 Ill.App.3d 197, 202 (2nd Dist. 2003)); defect at the only entrance/exit area (Harris v. Old Kent Bank, 315 Ill.App.3d 894, 902 (2000)); partially enclosed entranceway (Bledsoe v. Dredge, 288 Ill.App.3d 1021, 1024 (1997)).
The lesson learned from this case law evaluation is that actual proof of height is key to winning summary judgment under the de minimus doctrine. Employees should photograph the deviation immediately and if possible, do so with something next to it that can later be used to provide an actual height. This will help prevent the plaintiff from “guessing” the deviation was 2 or more inches.