While walking down a sidewalk or walking in an enclosed building, something catches your foot and you slip and/or trip and fall. Once you get beyond any embarrassment, you realize that the potential cause of your fall was a defect in sidewalk or flooring. Tripping, falling, and injuring yourself because of an uneven sidewalk or some other floor defect can have consequences against the owners of the sidewalk but under specific and certain circumstances.
According to the Consumer Product Safety Commission (CPSC), floors and flooring materials contribute directly to more than 2 million fall injuries each year.
Illinois case law provides a guideline to determine whether sidewalk/floor defects are actionable against private owners (i.e. hotel owners) and municipalities (i.e. cities, townships).
Defects that are not two inches must have some aggravating factors to help convince that the defect is not de minimis. Illinois Courts have considered the follow factors to determine whether a defect is de minimis:
In Illinois, given the extreme and various weather conditions, slight variations in sidewalk elevations are to be expected, and sidewalks cannot be perfectly maintained at all times. St. Martin v. First Hospitality Group, Inc. 2014 IL App (2d) 130505 ¶20. It is common knowledge that sidewalks are constructed in slabs for the very reason that they must be allowed to expand and contract with changes in temperature.” Hartung, 243 Ill.App.3d at 816, 184 Ill.Dec. 9, 612 N.E.2d 885. Requiring a landowner to constantly monitor and perfectly maintain outdoor walkways that are exposed to the elements would create an undue burden. Id. Therefore, the height of the defect and its aggravating factors are important to analyze whether the de minimis rule would apply to falls that occur because of outdoor defects.
Pedestrians can avoid imperfections in an outdoor walkway more easily than on indoor flooring. St. Martin 014 IL App (2d) 130505 ¶20. Indoor flooring not exposed to the weather can be more easily monitored for defects and does not impose an equivalent of the burden of monitoring an expanse of sidewalks. Bledsoe v. Dredge, 288 Ill. App. 3d 1021, 1025 (court declined to apply the de minimis rule to a fall outside of a partially enclosed entryway to a commercial building containing shops and businesses). Since indoor flooring is not exposed to the weather and can be more easily monitored for defects, courts have been more inclined to find smaller defects in flooring actionable. Id. Therefore, falls that occur indoors may have more wiggle room to succeed where the height of the defect does not meet 2 inches.
Arguably, the de minimis rule can serve as a defense when the height of the defect is not enough and there are not favorable aggravating factors. In addition to the de minimis rule, there are other defenses available to owners of sidewalk/flooring defects.
The Local Governmental and Governmental Employees Tort Immunity Act, statutorily provides an immunity defense for municipalities in many circumstances. Specifically, the act precludes local public entities or public employees from liability unless it is proven that they (i) had actual or constructive notice of the existence of a condition; (ii) the condition is not reasonably safe; and (iii) notice occurred in a reasonably sufficient time before an injury to allow measures to remedy, or protect against, the condition. 745 ILCS 10/3–102(a) (West 2012).
The Court also considers the following factors to determine the existence of a duty:
Whether it is a municipality or a private owner, notice of the defect is required to have a successful claim. There are two types notice:
In addition to identifying whether notice existed, determining whether the defect was open and obvious must all be considered.
West v. City of Hoopeston, 146 Ill. App.3d 538(1986), Plaintiff fell on a public sidewalk and broke her left elbow, lost much of the grip in her left hand, and as a result lost full mobility of her left elbow and arm. Plaintiff filed a lawsuit against the city alleging that the City allowed the sidewalk to become broken, uneven, and cracked, and failed to maintain the sidewalk in a reasonable safe condition for pedestrian traffic. Testimony from a witness detailed that the area where Plaintiff fell was broken with small, chipped rocks in it, and many cracks and Plaintiff fell in an area where a large crack extends across the sidewalk. Plaintiff alleged she tripped on an uneven cracked portion of the sidewalk. Defendant argued that the height variance where Plaintiff fell was minimal therefore not actionable.
The Appellate Court reasoned that the defect level was slight, however the broken area between the slabs was sufficiently wide and that a reasonable person could not anticipate danger to persons walking upon it. Lastly, though a pedestrian is required to use ordinary care of their own safety, they are not required to “keep their eyes glued to a sidewalk” in search of defects.
The Appellate court affirmed the trial Court’s decision where the jury returned a verdict in favor of Plaintiff awarding $58,50.00 in damages and a finding of no negligence.
In Hartung, the appellate court found the de minimis rule applied where plaintiff tripped and fell on a raised portion of sidewalk that was between 1/2 and 3/4 of an inch near a store located in a shopping center because the lack of pleading or evidence that the area was congested with traffic. Hartung v. Maple Investment & Development Corp., 243 Ill. App.3d 811(1993).
Burn v. City of Chicago, 2016 IL App (1st) 151925, Plaintiff tripped, fell, and injured himself, in a crosswalk with ADA compliant sensory tile made up of truncated domes aligned in a square or radial grid pattern laid on top of fresh concrete. Plaintiff noticed the raised tiles above the sidewalk level after he fell. Plaintiff estimated the difference to be 1.5 inches however photos depicted the defect to be 3/4 of an inch above the sidewalk.
The court considered testimony that Plaintiff had crossed the intersection at issue at least once a week and never noticed the condition; on the date of the accident it was raining at a medium volume; Plaintiff did not have on a raincoat and was not using an umbrella.
City moved for summary judgment arguing that the (i) complained condition was de minimis; (ii) City did not have actual or constructive notice and (iii) the condition was open and obvious. The trial court granted the motion for summary judgment. Plaintiff challenges the motion arguing that the (i) tiles are warning devices; (ii) the raised tiles were not a de minimis condition; (iii) City had constructive notice of the raised tiles; and (iv) City owned Plaintiff a duty because the raised tiles were open and obvious. Plaintiff adds that the raised between 3/4 to 1 1/2 above the sidewalk was an aggravating circumstances that the condition was not de minimis and that the sidewalk was made of different materials and the tiles were mounted at a slight incline.
The Court disagreed with the Plaintiff and could not conclude that aggravating factors exist despite the difference of sidewalk materials and slight incline. The condition would not cause a reasonably prudent person to foresee some danger to persons walking on it. Therefore the defect was de minimis.
St. Martin v. First Hospitality Group, Inc. 2014 IL App (2d) 130505, Plaintiff alleged he was injured when he tripped and fell on an uneven portion of sidewalk outside of a hotel entryway owned by the defendant. Plaintiff alleged that the area had poor lighting but did not make any other allegations about the area or the amount of present foot traffic. The height difference between concrete slabs between 1 1/5 and 1 3/4 inches. The following day, Defendant took photos of the defect that showed the difference at around 1/2 inch, which was supported by Defendant’s expert, who testified that the sidewalk would heave and move during normal winter conditions and the varying alignments of the concrete slabs were typical, commonplace and expected and that the area was not in need of repair or replacement. Defendant moved for summary judgment arguing no duty owed to Plaintiff and the defect was de minimis.
Plaintiff argued that the de minimis rule did not apply because the defect was near the front doors of the hotel and there were issues of fact about the height of the defect.
The Court found that the de minimis rule applied given the extreme and various weather conditions in Illinois, slight variations in sidewalk elevations are to be expected, and sidewalks cannot be perfectly maintained; pedestrians can avoid imperfections in an outdoor walkway more easily than on indoor flooring and maintaining outdoor walkways exposed to the elements would create an undue burden. The uneven portion of the sidewalk was a minor defect that a person exercising ordinary care could easily avoid.
Harris v. Old Kent Bank, 315 Ill. App.3d 894 (2000), the court declined to apply the de minimis rule because the Plaintiff specifically alleged that the defendant “failed to provide a safe means of ingress and egress to the only entrance of its establishment.” The court discussed that it was unreasonable to presume that the Plaintiff could be distracted by reviewing receipts, looking for car keys, or looking toward her car and that the economic burden of repairing the area would be great. Therefore, the rule did not apply to those facts.
A lot of elements, considerations, and analysis is used to determine whether a case involving a fall on a sidewalk or flooring defect will be successful. Here are some of the key factors an experienced trip and fall attorney will use to determine if you have a case:
To figure out whether you have a successful sidewalk/flooring case, contact us at 312-223-1700 for a free consultation.