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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.[1]

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…”[2]

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.[3]  The heel of her shoe stuck in the pothole, causing her to jolt forward and fall.[4]  Plaintiff also asserted that her two inch heel fit into the pothole.[5]

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).[6]; 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.[7] 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.[8] 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.[9]

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.”[10] Further, the court noted that the occurrence at issue occurred at night, in a parking lot with dim lighting.[11] 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.[12] 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.


[1] Barrett v. FA Group, LLC, et al., 2017 IL App (1st) 170168 ¶1;

[2] Barret at ¶17;

[3] Barret at ¶14;

[4] Id at ¶ 14 & 33;

[5] Id. at ¶ 32;

[6] Id. at ¶28;

[7] Id. at ¶29

[8] Id. at ¶ 30

[9] Id. at ¶30;

[10] Id. at ¶32;

[11] Id. at ¶ 35

[12] Id. at ¶33;

Kurt Koepke recently finished a jury trial in Sangamon county Illinois. This personal injury lawsuit involved a two vehicle automobile accident where the defendant exited an alley and struck the vehicle being operated by the plaintiff.  Mr. Koepke represented the defendant. The plaintiff’s passenger also brought suit.  Claimed injuries were soft tissue injuries to neck and back.  Medical specials were approximately $10,000.00 for each of the plaintiffs with no lost wage claim.  The jury returned a verdict in favor of defendant, finding no liability for Mr. Koepke's client.

By Jason G. Schutte


What is the Dead Man’s Act?

The Dead Man’s Act (herein Act) is an evidentiary rule pertaining to the admissibility of testimony that a dead party could have contested.  The Act states:

“In the trial of any action in which any party sues or defends as the representative of a deceased person ***, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased *** or to any event which took place in the presence of the deceased ***.” 735 ILCS 5/8-201 (West 2014).

The Act applies to situations where a party sues a deceased person or defends a suit as the representative of a dead person.[i] The act prevents an adverse party (or person directly interested in the action) from testifying on his own behalf to any conversations with the dead person or to any event which took place in the presence of the dead person.[ii]  The purpose of the act is “to protect decedents’ estates from fraudulent claims and to equalize the position of the parties in regard to the giving of testimony.  The Act bars only that evidence which defendant could have refuted.”[iii] The Act does not wholly prohibit the testimony of the person who interacted with the decedent, or that person’s spouse.[iv]

Facts of The Spencer Case

This case[v] revolves around a personal injury claim asserted by Arlethia Spencer against Mona Strenger. Plaintiff Spencer claims she was injured when she slipped on a floor mat and fell while exiting a vehicle in Defendant’s garage. Defendant Strenger died while the lawsuit was pending.[vi] Plaintiff was a passenger in Strenger’s vehicle on the date of the occurrence at issue.  Plaintiff attempted to exit Strenger’s vehicle in Strenger’s garage.  She stepped onto a floor mat that had been placed in the garage.  The mat slipped, resulting in plaintiff’s alleged fall and injuries.[vii]

The plaintiff filed a negligence suit against Strenger relating to the fall on the garage floor mat.[viii] Strenger denied that the mat slipped when plaintiff stepped on it, causing plaintiff to fall.[ix] Defendant’s special administrator filed a motion for summary judgment arguing that the Illinois Dead Man’s Act (herein Act) barred plaintiff from testifying regarding the fall because it occurred in Strenger’s presence. Further, there was no admissible evidence to establish fault since the plaintiff could not testify regarding the facts of the fall.[x]

Plaintiff opposed the motion and asserted that Strenger was not in a position to see what caused plaintiff to slip, hence, Strenger could not have refuted plaintiff’s testimony about the fall. Therefore, the Act did not bar plaintiff from testifying as to the cause of the fall.

Excerpts of depositions were presented by plaintiff in opposition to the motion. Plaintiff testified in her deposition that she exited the car, then stepped onto the mat, the mat slipped, then she fell into a brick wall. Plaintiff also testified that defendant Strenger was still inside the car at the time and would not have been able to see the mat slipping. Strenger testified in her deposition that a freezer and a refrigerator were located in her garage, mats near the freezer, and that a person who exited the car would walk on the mats.

The trial court granted the motion for summary judgment. Plaintiff moved to reconsider the ruling of the court.  The trial court denied the motion to reconsider.

Spencer Appellate Court Ruling

The Spencer court noted that the purpose of The Act was “to remove the temptation of a survivor to testify to matters that cannot be rebutted because of the death of the only other party to the conversation or witness to the event, but it is not intended to disadvantage the living.”[xi]

The court emphasized that Strenger was indisputably in plaintiff’s presence during the occurrence at issue.  Plaintiff Spencer did not dispute that Strenger was, at a minimum, in the garage and thus within the immediate vicinity and within sight of plaintiff during the fall. Therefore, the plain language of the Act supported the trial court’s conclusion that the event took place in the presence of Strenger.[xii]

The Spencer court put little weight into Spencer’s argument that the Act did not apply because Strenger could not see plaintiff’s feet and thus could not have rebutted plaintiff’s testimony. The court noted that his argument was based on Spencer’s assertion that Strenger was in the driver’s seat when Spencer fell. Hence Strenger could not see plaintiff’s feet and thus could not have refuted her testimony that she slipped on the mat. [xiii]

The weakness in Plaintiff Spencer’s argument is that Strenger could have refuted plaintiff’s assertion that Strenger was in the driver’s seat. Strenger answered “yes” when asked if she saw plaintiff fall during her deposition. She was not asked where she was located when she saw plaintiff fall, and she never admitted having been in the driver’s seat during the fall. Plaintiff’s testimony that Strenger was in the driver’s seat at the time of her fall is barred under the Act since Strenger could have contested it.  Spencer could not rely on this inadmissible testimony to save her testimony about the fall.  Hence, Spencer’s testimony about the fall itself was barred as well.[xiv]

The motion for summary judgment was properly granted because the defendant could not present any admissible evidence to establish the cause of her fall.  Hence, failing to satisfy the requirements of a prima facia negligence case.

Importance of the Act

The Dead Man’s Act can be a very effective tool in defending personal injury claims.  It can be used to wholly defeat a negligence case, as occurred in Spencer. Also, it can be used to limit portions of testimony that could be detrimental to the defense of a case.

Claims representatives, investigators and attorneys should take special note of cases where the insured defendant has died during the event, after the event or is ill or elderly.  In such cases, we should specifically investigate the potential testimony of the parties and potential witnesses. An in depth, detailed investigation of what events were seen, or heard, must be obtained. If the witnesses cannot testify to some, or all of the events in issue, then the Act may be useful in limiting the potential trial testimony of the plaintiff.  For instance, the severity of a car accident, or an admission of prior knowledge of a defective condition might be excluded in the available testimony supports such action under the Act.

Please contact us with any questions you may have regarding the Illinois Dead Man’s Act or related issues.


[i] Rerack v. Lally, 241 Ill. App. 3d 692, 695 (1st. Div. 1992)            ;

[ii] Rerack at 695;

[iii] Ruback v. Doss, et. al., 347 Ill. App. 3d 808, 812, (1st. Dist. 2004), citing Smith v. Haran, 273 Ill. App. 3d 866, 875 (1995);

[iv] Danzot v. Zablika, 342 Ill. App. 3d 493, 498 (1st. Dist. 2003);

[v] Spencer v. Strenger Wayne, 2017 IL App (2d) 160801;

[vi] Spencer at ¶1;

[vii] Spencer at ¶3;

[viii] Spencer at ¶4;

[ix] Spencer ¶5;

[x] Spencer ¶6;

[xi] Spencer ¶ 17 citing Balma v. Henry, 404 Ill. App. 3d 233, 238 (2010);

[xii] Spencer ¶18;

[xiii] Spencer ¶19;

[xiv] Spencer ¶23.

This underinsured motorist claim revolved around a motor vehicle collision occurring on Route 83 near Lake Villa, Illinois. Attorney Kurt Koepke represented the insurance company in this matter. The claimant was a passenger in a vehicle involved in the collision. The vehicle being operated by the at fault driver drifted from his lane into the claimant’s lane of travel. The vehicle that the claimant was a passenger in had moderate damage. Claimant was a restrained passenger in the right front passenger seat.

Claimant settled his claim against the at fault driver for $50,000 and pursued this underinsured motorist claim. Claimant asserted that he continued to suffer from mid-back pain that radiates down his left leg which started the day of the accident. Additionally, claimant stated incurred medical bills of claim of $34,184.34. The matter proceeded to arbitration pursuant to the provisions of claimant’s underinsured motorist coverage in the applicable insurance policy.

Claimant and attorney Koepke presented evidence and arguments to the arbitration panel. The arbitrators determined that the total value of this claim was $45,000. Claimant received a net award of $0 after applying the insurance companies’ right to set off $50,000 for the payment received by Claimant from the at fault driver. This was an excellent result for attorney Koepke and his client.

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