Summary Judgment under the De Minimis Rule Held Appropriate in Slip-and-Fall Action

In a recent Second District Appellate Court decision, the Court affirmed the trial court’s summary judgment for the defendant in a slip-and-fall negligence action.  The plaintiff had alleged that he was injured when he tripped and fell on an uneven portion of the sidewalk outside a hotel owned by the defendant.  The defendant had moved for summary judgment, arguing that it did not owe plaintiff a duty of care, because the defect in the sidewalk was de minimis.  The trial court granted the defendant’s motion for summary judgment, finding that the defect in the sidewalk was de minimis as a matter of law.  The plaintiff appealed.

The plaintiff had claimed that he had tripped over uneven slabs of concrete a few feet away from one of the doors at the main entrance of the hotel at approximately 9:00 p.m.  Although the plaintiff alleged that the area had poor lighting, he did not make any other allegations about the area where he fell or describe how much foot traffic was present at the time of his fall.  Importantly, the plaintiff had not alleged that he had no choice but to enter or exit through one set of doors, that he was otherwise distracted, or that there was heavy congestion or foot traffic at the time of his fall.  It was undisputed that the height variation between the slabs of concrete was less than two inches.

The appellate court began its analysis by noting that a premises owner is not an absolute insurer of the safety of an invitee; instead the premises owner’s duty is that of reasonable care under the circumstances.  The de minimis rule originated in cases involving municipalities, where it was noted that although a municipality has a duty to keep its property in a reasonably safe condition, it has not duty to repair de minimis defects in its sidewalks.  The Second District has extended the de minimis rule to apply to private owners and possessors of land.

Although the appellate court noted that the de minimis rule cannot be applied blindly in every situation, it is nevertheless “well established” that, absent any aggravating factors, a “vertical displacement” between sidewalk slabs of less than two inches is de minimis.  Perhaps the Court’s decision was influenced, at least in part, by Chicago’s particularly hard winter as it noted that “[g]iven the extreme and various weather conditions in Illinois, slight variations in sidewalk elevations are to be expected, and sidewalks cannot be perfectly maintained at all times.”  Sidewalks are constructed in slabs for the very reason that they must be allowed to expand and contract with changes in temperature.

The Martin Court listed certain aggravating circumstances that may prevent the application of the de minimis rule.  Such aggravating circumstances may include evidence of heavy foot traffic, distraction, or congestion.  For example, in a busy commercial district it is reasonable to infer that a pedestrian could be sufficiently distracted to overlook an otherwise de minimis defect in the sidewalk.  Similarly, the de minimis rule did not apply in a situation where a bank had failed to provide a safe means of ingress and egress to the only entrance of its establishment as the court noted both that:  (1) it was reasonable to assume that customers could be distracted and (2) the economic burden of keeping that small area safe would not have been burdensome.  Courts have found that the de minimis rule did not apply to areas that are partially enclosed and not fully exposed to the weather as such areas can presumably be more easily monitored.

If there is evidence of an aggravating circumstance, whether the defendant owed a duty to the plaintiff becomes a question of fact.  However, if the plaintiff fails to provide evidence that such a circumstance exists, summary judgment is appropriate.