Second District Appellate Court Overturns Trial Court’s de minimis Finding

June 2018

By Andrew R. Makauskas

Bartkowiak v. City of Aurora, 2018 Ill. App. (2d) 170406, arose out of a fall at the parking lot of the Route 59 train station in Naperville. The plaintiff caught her toe in a depression in a pavement seam in a driving aisle as she crossed the aisle to get to her car. She alleged the defendant failed to maintain the asphalt surface of the parking lot in a reasonably safe condition. She also contended the defendant failed to provide adequate artificial lighting in the parking lot so that pedestrians could see potential defects that existed therein (the latter allegation was eventually dropped, as experts from both sides agreed that lighting was not an issue).

Plaintiff testified that the depression causing her to catch her foot and fall had a vertical depth of four inches. Her expert testified that the depression appeared to be 1.5 inches deep. The expert, however, also testified the depression constituted an unreasonably dangerous condition.

At trial, the jury entered a verdict in favor of plaintiff. A special interrogatory was tendered, asking if the depression had “a vertical difference of 1.5 inches or less”. As the answer to the special interrogatory was in the affirmative, the trial court entered judgment for defendant, finding the special interrogatory was inconsistent with the general verdict.

The Appellate Court reversed, and discussed the theory behind the de minimis rule in Illinois. Because of the weather in Illinois, it is not reasonable to place the duty on a municipality or property owner to protect against differences in height of less than a certain height. Most of the case law comes down at under 2 inches. However, the Appellate Court noted the height differential was not the only consideration. The de minimis rule generally precludes negligence claims on lesser defects, absent aggravating circumstances, citing Morris v Ingersoll Cutting Tool Co., 2013 Ill. App. 2d 120760.

In this case, the Appellate Court found aggravating circumstances. The size of the defect was not insubstantial, it was located in an area where it was likely to be encountered by pedestrians, it contained broken asphalt and it was deep enough for plaintiff’s foot to become stuck (as opposed to simply tripping), causing her to “stop dead and fall forward”. Further, evidence of the parking lot’s bottleneck design, the “madhouse” conditions of the congested parking lot during rush hour when plaintiff was injured, and defendant’s employees’ testimony that the defect needed to be repaired because it was a tripping hazard all constituted aggravating circumstances.

The court also found that the special interrogatory should not have been tendered because the answer to that interrogatory was not inconsistent with the general verdict. Namely, finding the defect was 1.5 inches or less did not preclude a finding of negligence due to the “aggravating circumstances” requirement of the de minimis rule.

The case is significant because it highlights there is more to the analysis of the de minimis defense than the depth of the defect.