DEFENSE WINS! – The De Minimis Rule

In March, 2024, summary judgment was entered on behalf of my client in the Northern District of Illinois District Court based on the de minimis rule. Our case was in federal court based on diversity, so the court applied Illinois law.

First, a quick reminder of the de minimis rule:

Pursuant to 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 this case, the plaintiff exited her car in the parking lot of a store and she was directly next to a cement curb. While exiting her vehicle, the plaintiff tripped and fell – allegedly because there was a deviation of height between the blacktop pavement and the cement curb. The only “measurement” taken of the deviation soon after the incident was with the plaintiff’s husband’s boot heel.

What makes this case unique, is the plaintiff and her expert did NOT dispute the height deviation was less than 2 inches. This is important because while there is technically no bright-line rule, “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. St. Martin, 9 N.E.3d at 1225.

Since the deviation was less than 2 inches, the plaintiff disclosed liability expert David Schroeder, a licensed architect. Rather than have him review the actual evidence in the case, Plaintiff’s counsel only gave him a summary of the testimony. Based on his review of counsel’s information, Mr. Schroeder opined that based on the codes, any change in height over a ¼ inch at any location is a tripping hazard. As we argued to the court, if his opinion was accepted, the de minimis rule can no longer exist. The Court potentially agreed because the Court made little mention of Mr. Schroeder’s opinions in the ruling.

Since the parties agreed the height deviation was under 2 inches, the Court’s focus was on whether there were any aggravator factors to prevent summary judgment. The plaintiff argued four aggravating factors existed – dimension, distraction, bottleneck, and pedestrian foot traffic in a commercial area. The Court evaluated each individually and did not find merit in any of them:

  • Dimension – The plaintiff argued the height differentiation ran the entire length of the 12-foot curb. The Court noted the plaintiff offered no evidence of this and even if she had, the entire span’s height difference was less than two inches.
  • Distraction – Plaintiff argued she was distracted because she was closing her car door. The Court noted there was no evidence presented to support this theory.
  • Bottleneck – Plaintiff argued that every driver who parks in the space at issue will encounter the defect and the area would be “congested” if the driver and passenger exit the vehicle at the same time. The Court did not agree because the parking lot was very large and this involved only one parking space.
  • Pedestrian Foot Traffic In Commercial Area -Plaintiff argued pedestrians would encounter the defect when entering the store or using the nearby cart corral. Based on the parking lot photographs, and lack of evidentiary support, the Court did not agree.

In sum, the Court concluded the height difference between the asphalt and the concrete channel that allegedly caused the plaintiff’s fall was de minimis, and further that no reasonable juror could find the existence of any aggravating factor that would nonetheless impose a duty to correct the defect. For these reasons, summary judgment was entered.