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The Illinois Appellate Court for the First District recently determined that surrounding circumstances are relevant when determining whether a defect can be de minimis as a matter of law. A pothole of a depth between half an inch and 2 inches was a defect not so minor to be considered de minimis as a manner of law.

The de minimis rule precludes negligence claims in cases involving lesser defects in the absence of aggravating circumstances. If a defect is such that a reasonably prudent person would not anticipate some danger to the persons walking upon it, it is considered de minimis and not actionable. In Barrett v. FA Group, LLC, the Court found that the circuit court had to look at all of the surrounding circumstances and not solely the depth of the pothole in determining whether the defect was de minimis.

In Barrett, Plaintiff was walking across the parking lot of a restaurant owned by Defendants at night. Her two-inch heel fell into a pothole in the parking lot and became wedged. She subsequently fell down, lost consciousness and injured her right knee and right eye. She filed a negligence complaint against the Defendants alleging that they had negligently maintained the parking lot and failed to warn of the dangerous condition.

Defendants filed a motion for summary judgment and argued that the size of the pothole was considered de minimis and was not actionable as a matter of law. Defendants attached an affidavit of one of the owners of the parking lot, Mohammed Nofal, who stated that the depression in the parking lot did not have a height difference of greater than 0.5 inches between the depression and the surrounding area in the parking lot on the date of the fall. In her response, Plaintiff attached an affidavit that the pothole had a height difference large enough for her two-inch heel to get wedged in between and that she tripped on broken pavement rather than a deviation in height.

The trial court granted Defendants' motion for summary judgment and asserted that injuries caused by defects with a height difference of less than two inches are not actionable in the absence of aggravating factors under the de minimis doctrine. The trial court further noted that Plaintiff's affidavit did not contain facts that would overcome the de minimis doctrine and that she speculated that she tripped over broken pavement in a pothole without presenting evidence that it was the case.

The Illinois Appellate Court of the First District disagreed that the Nofal's affidavit established that the pothole had a depth of half an inch and that there were no aggravating circumstances that prevented the application of the de minimis rule. Plaintiff, in her affidavit, had challenged Nofal's half-inch estimate of the depth of the pothole when she stated that her two-inch heel had become wedged in the pothole. Thus, the depth was somewhere between half an inch and two inches.

Moreover, there were aggravating circumstances that would override the application of the de minimis rule. Plaintiff did not argue that the height difference had caused her fall. Rather, she argued that her shoe became stuck in either broken pavement or broken asphalt within the pothole which caused her to jolt forward and fall. The trial court also should have considered the surrounding circumstances as well such as the fact that Plaintiff's injury occurred at night, the parking lot was dim-lit, the pothole was in an area with a lot of pedestrian traffic and the pothole itself appeared to be several feet long and wide. These circumstances concerning the defect presented a question of fact as to whether the Defendants owed Plaintiff and other parking lot users a duty to repair it.

Given the circumstances and taking the facts in the light most favorable to the Plaintiff, the Court could not say that the pothole was de minimis as a matter of law. There existed a question of fact concerning the size and depth of the pothole itself as well as whether the Defendants owed a duty to Plaintiff and other users of the parking lot to repair the pothole. Accordingly, the Court reversed the trial court's decision granting Defendants' motion for summary judgment.

The de minimis rule is no longer a game of inches for Defendants seeking to escape responsibility for failing to protect pedestrians on their property. At the Law Offices of Mathys & Schneid, we will go the full mile for you and ensure that Defendants are held accountable to the full extent of the law in slip and fall cases.

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