DEFENSE WINS! – De Minimis Rule

I am happy to report a recent summary judgment win in federal court based on the de minimis rule. In this case, the plaintiff testified she was in the parking lot of a store, and upon exiting her vehicle, she tripped because there was a height deviation between the cement curb next to her vehicle and the blacktop pavement of the parking lot. The court granted summary judgment based on the de minimis rule.

First, here is a brief reminder of the de minimis rule:

Under the de minimis rule, municipalities and private landowners owe no legal duty to repair sidewalks defects that are minor or slight. Thompson v. Menard, Inc., No. 16 C 6560, 2017 WL 4164196, at *5 (N.D. Ill. Sept. 20, 2017) (citing Hartung v. Maple Inv. & Dev. Corp., 612 N.E.2d 885, 888–89 (Ill. App. Ct. 1993)).

The de minimis rule guards against the “unreasonable economic burden” that would accompany an obligation to “keep sidewalks in perfect condition all the time.” St. Martin v. First Hospitality Group, Inc., 9 N.E.3d 1221, 1225 (Ill. App. Ct. 2014). It reflects the “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.” Id. Accordingly, the de minimis rule recognizes that because of Illinois’s “extreme and changeable weather conditions . . . slight variations in sidewalk elevations are to be expected.” Hartung, 612 N.E.2d at 889.

In general, “bright-line rule[s]” do not guide this inquiry. Barrett v. FA Group, LLC, 90 N.E.3d 537, 549 (Ill. App. Ct. 2017). When determining whether a height deviation is de minimis or actionable, courts consider “all of the pertinent facts.” St. Martin, 9 N.E.3d at 1225. Even so, “it is well established that, absent any aggravating factors, a vertical displacement of less than two inches is de minimis” as a matter of law. Id.

In this case, the area at issue was not measured by anyone the day of the fall. Instead, the plaintiff and her husband returned to the parking lot on a later date and measured the height difference of the curb with the heel of her husband’s boot. The plaintiff testified the height difference was the same size as the heel and she claimed it was 1 7/8 inches.

We provided two different measurements of the area. First, we had a store manager take measurements along the entire curb at the parking space at issue (over 2 years after the incident) and the deviation ranged from 0 to 1 1/2 inches. We also hired an expert to opine as to the height of deviation based on the photographs and the plaintiff’s husband’s boot. He determined the height difference was 1.0268 inches.

The plaintiff also retained an expert. The plaintiff’s expert assumed the height difference was 1 3/4 inches – the height told to him by Plaintiff’s counsel. In the plaintiff’s expert’s opinion, the only amount of change in level between surfaces that is not a potential tripping hazard is ¼ inch for an abrupt change or ½ inch for a beveled edge. The number is the same for indoor and outdoor surfaces. He opined that once there is a raising, depression or unevenness of pavement over a quarter inch (unbeveled), the industry standard required the area to be repaired, and this applies to all businesses, retailers and to any location where a person walks.

Despite the plaintiff’s expert’s opinions, the court concluded the de minimis rule to this case. The plaintiff argued that despite admitting that the defect is less than two inches, this concession is not dipositive because “1 and 15/16 of an inch is not significantly different from two inches, which is not de minimis.” The court disagreed and ruled that all the evidence points to the alleged defect being less than two inches.

The analysis then turned on whether any aggravating factors existed. As noted by the court, the de minimis rule is not “applied blindly to cover every situation.” St. Martin, 9 N.E.3d at 1225. (internal quotation marks omitted) Rather, a defect less than two inches may nonetheless be actionable if certain “aggravating factors” are present. Id.

The plaintiff argued four different aggravating factors existed: dimension, distraction, bottleneck, and pedestrian foot traffic in a commercial area. The court evaluated each and ruled none of them applied to this case. Therefore, summary judgment for the defendant was granted.