Application Of De Minimis Rule Upheld By Second District

June 2014

By Andrew R. Makauskas

In Charles L. St. Martin v. First Hospitality Group, Inc., d/b/a Hilton Chicago/Indian Lake Resort, 2014 Ill.App. (2d) 130505, the plaintiff alleged he was injured when he tripped and fell on an uneven portion of sidewalk outside the hotel owned by defendant. At his deposition, plaintiff testified that on the day of the fall, he was attending a seminar at the hotel. He went outside to smoke a cigarette at some benches 10 to 12 feet from the main entrance where an ashtray was located. When he returned, he tripped over uneven slabs of concrete a couple of feet away from one of the doors at the main entrance to the hotel. Photographs showed the area was just before the entryway rug and under a roof that extended over a drive-up area at the front of the hotel. Plaintiff's brother later measured the height difference between the concrete slabs at 1 ½ - 1 ¾ inches.

The defendant provided photographs which were purportedly taken by the hotel's manager the day after the fall. The photographs showed the difference in height to be around ½ inch. An expert retained by defendant observed the area approximately 29 months after the incident date and measured the height difference at under an inch. In an affidavit, the expert stated the sidewalk would heave and move during normal winter conditions and that the varying alignments of the concrete slabs were typical, commonplace and expected. He opined the area was not in need of repair or replacement and that it did not constitute a hazardous condition.

The defendant moved for summary judgment, arguing it did not owe plaintiff a duty of care because the defect in the sidewalk was de minimis. Plaintiff argued the de minimis rule was inapplicable because of how near the defect was to the front doors. Thus, he maintained, there was an issue of fact as to whether aggravating circumstances existed. The trial court granted the motion for summary judgment, finding the defect was de minimis as a matter of law and further noting the affidavit of defendant's expert was unrebutted. Plaintiff appealed.

On appeal, the Second District discussed the de minimis rule and how it originated in cases involving municipalities, where it was noted that municipalities do not have a duty to keep all sidewalks in perfect condition at all times. Gillock v. City of Springfield, 268 Ill.App. (3d) 455, 457 (1994). The de minimis rule stems in large part from the recognition that municipalities would suffer an unreasonable economic burden were they required to keep their sidewalks in perfect condition all of the time. Putnam v. Village of Bensenville, 337 Ill.App. (3d) 197, 202 (2003).

In Hartung v. Maple Investment & Development Corp., 243 Ill.App. (3d) 811, 816 (1993), the de minimis rule was extended to apply to private owners and possessors of land. It is common knowledge that sidewalks are constructed in slabs for the very reason they must be allowed to expand and contract with changes in temperature. It is well established that, absent any aggravating factors, a vertical displacement of less than 2 inches is de minimis. Although a displacement of 2 inches is actionable, a variation of one inch, absent more, is de minimis. Warner v. City of Chicago, 72 Ill.2d 100, 104-05 (1978).

The Second District noted in the previously cited Hartung case, the de minimis rule cannot be applied blindly to cover every situation. Its application may very well depend on other factors. Hartung, 243 Ill.App. (3d), 817.

In the present case, St. Martin's attorney contended the location of the defect, outside the entryway of a commercial establishment, was an aggravating circumstance precluding entry of summary judgment. However, the Second District was not convinced. Looking first at the issue of the height differential, it was undisputed that the differential was less than 2 inches. Thus, it was de minimis. Further, the court noted the plaintiff did not specifically allege or provide any evidence that an aggravating circumstance such as heavy foot traffic, distraction, or congestion existed. At most, he speculated he might have been looking for a key or that the doormat might have obscured the imperfection, without having presented evidence that this was actually the case. The court found the presence of the height differential in close proximity to the covered entryway of the commercial building, in and of itself, was not an aggravating circumstance that removes application of the de minimis rule. Thus, the trial court's application of the de minimis rule in granting defendant's motion for summary judgment was affirmed.