By Jason G. Schutte
Synopsis: Court finds that plaintiff’s claim that shoe sticking in asphalt and darkness are circumstances sufficient to defeat summary judgment.
Plaintiff Rhonda Barrett (herein Plaintiff) was injured while walking in a parking lot after she stepped in a pothole and fell. Plaintiff filed a personal injury suit against the Defendants arguing negligent maintenance of the property and failure to warn of dangerous conditions that were present.
Defendants moved for summary judgment asserting that the pothole in issue was a de minimis defect, and thus, they could not be found liable for plaintiff’s claimed injuries under Illinois law. In support of their motion for summary judgment, Defendants included an affidavit averring that the depression/pothole “did not have a height difference of greater than 0.5 inches between the depression and surrounding area in the parking lot…”
Plaintiff was unable to provide a precise estimate of the height difference present; rather, she testified that she stepped in a pothole and that there was some broken up asphalt in the pothole. The heel of her shoe stuck in the pothole, causing her to jolt forward and fall. Plaintiff also asserted that her two inch heel fit into the pothole.
Illinois Law Governing De Minimis defects:
Illinois law places a duty of reasonable care on owners/occupiers of a premises to maintain that premises in a reasonably safe condition for invitees to the property (note that this same duty is not owed to trespassers).; however, if the defect is such that a reasonably prudent person would not anticipate some danger to persons walking upon the defect, then it is considered de minimis and a negligence suit cannot be based upon the defect. The de minimis rule initially only applied to municipalities, but has since been extended to private property owners.
The question that most commonly arises in these cases is ‘what constitutes a de minimis defect?’ There is not a bright line test to answer this question. Illinois courts continually emphasize that there is no mathematical standard to determine if a defect is de minimis; rather, each case must be decided on the facts and circumstances particular to that case. The rule has developed a ‘ceiling’ on defect size though. Generally, if a defect is approaching two inches in height, it will be actionable. Smaller defects will generally be considered de minimis, absent aggravating circumstances.
In the case at bar, plaintiff filed an affidavit asserting that the height difference in the pothole was large enough that her two inch heel got wedged “in between.” Further, the court noted that the occurrence at issue occurred at night, in a parking lot with dim lighting. The Court also found that Plaintiff’s argument that her shoe became stuck in the broken pavement to be important to their evaluation of the applicability of the de minimis rule and its applicability to the case. The court noted that cases involving the de minimis rule almost uniformly involve tripping as a result of height deviation. Whereas, Plaintiff alleges her shoe got stuck in the defect. Hence, Plaintiff’s specific allegations created a distinguishable situation from traditional de minimis defect cases.
The Court overturned the summary judgment entered in favor of Defendant because the de minimis rule was of questionable applicability to the case. Further, the court stated that even assuming the rule applied, Plaintiff’s affidavit created a question of fact as to the height of the defect, and aggravating factors including dim lighting and potential falls in a crowded parking lot created aggravating factors.
Effect of Case:
The most important effect of this case is that it establishes a precedent to distinguish all de minimis rule cases when the fall results from a shoe “catching” in a defect, as opposed to someone simply catching their toe on the defect. The author feels this is a distinction without a difference; however, attorneys and claims professionals alike will need to be very precise in investigating cases that might be defensible under the de minimis rule in light of this ruling.
Investigation of the defect should take place immediately upon learning of a potential claim. Photographs should be taken as soon as possible to document the current condition of the alleged defect. This will be particularly important to determine if the defect includes any broken up fragments which arguably could “catch” a shoe. Likewise, the photographs should document the size of the defect. The author recommends including an object to identify the size of the defect, for instance a ruler or tape measure.
Additionally, during interviews, precise language must be used in questioning the injured person since this case will turn on very specific facts. What did the defect look like? When did they first see it? How deep was it? How familiar were they with the area? Inquire about the weather, lighting, pedestrian and automobile traffic, and specifically how the fall occurred. For instance, did they catch their toe or heel? What type of shoes were they wearing? What made the shoe catch? Were there any witnesses?
Addressing all the above referenced issues will be of utmost importance to determining whether a trip and fall negligence claim can be defended based on the de minimis rule, or, whether the matter will remain a question of fact for the jury.
 Barrett v. FA Group, LLC, et al., 2017 IL App (1st) 170168 ¶1;
 Barret at ¶17;
 Barret at ¶14;
 Id at ¶ 14 & 33;
 Id. at ¶ 32;
 Id. at ¶28;
 Id. at ¶29
 Id. at ¶ 30
 Id. at ¶30;
 Id. at ¶32;
 Id. at ¶ 35
 Id. at ¶33;