My second favorite defense in premises liability cases (after the natural accumulation doctrine – of course!) is the de minimus rule.

As a quick reminder – The de minimis rule originated in cases involving municipalities. It was ruled that municipalities do not have a duty to keep all sidewalks in perfect condition at all times, and there is no duty to repair de minimus defects in the sidewalks. The basis of the rule is that municipalities would suffer an unreasonable economic burden if required to keep sidewalks in perfect condition.

The de minimus rule was then extended to private owners and possessors of land. In extending it to private owners, the court noted that “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.”

There is no simple standard to determine de minimus, but it is well established that absent any aggravating factors, a vertical displacement of less than 2 inches is de minimus. The de minimus rule applies only to outdoor surfaces.

I recently obtained summary judgment for a retail client in Cook County using the de minimus rule.  The plaintiff was walking through the parking lot after leaving the store when she tripped and fell forward onto her knees and face.  After standing up the plaintiff looked behind her and saw cracks in the pavement.  Her adult daughter commented that she tripped on the cracks.

The daughter took photographs of the area that day but a formal inspectionwas not conducted until over a year later.  The inspection and photographs revealed multiple cracks but they were all flat/flush without any deviation in height.  The plaintiff and her daughter admitted at their depositions that they were not aware of a height deviation in the cracks.  The store manager and pavement vendor also testified the cracks were flat and they questioned the actual location of the fall based on the outside surveillance cameras.

In response to our motion for summary judgment the plaintiff argued the de minimus rule did not apply because the parking lot was made of black-top pavement and not cement.  The court rejected that argument and applied the de minimus rule.  Since there was no evidence of a significant height deviation in any of the cracks, summary judgment was entered.  No appeal was filed.