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.
Slip, Trip and Fall Cases in Illinois
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).
What Is the De Minimis Rule?
De minimis means too trivial or minor to merit condition according to the Oxford dictionary. Within the law, when a sidewalk or flooring defect does not approach two (2) inches, absent aggravating circumstances then a negligence claim is precluded. Birch v. City of Quincy, 241 Ill. App. 3d 119, 121 (1993), Harris v. Old Kent Bank, 315 Ill. App. 3d 894, 900 (2000) Morris, 2013 IL App (2d) 120760, ¶ 13, 376 Ill.Dec. 712, 1 N.E.3d 45.
Usually, a sidewalk defect approaching a height difference of two inches is actionable and does not fall within de minimis rule, Burns v. City of Chicago, 2016 IL App (1st) 151925 ¶21.
Who Does the De Minimis Rule Apply To?
The de minimis rule originated in cases involving municipalities, where it was noted that municipalities do not have a duty to keep all sidewalks in perfect condition at all times.” Gillock v. City of Springfield, 268 Ill.App.3d 455, 457 (1994).
The de minimis rule stems in large part from the recognition that municipalities would suffer an unreasonable economic burden were they required to keep their sidewalks in perfect condition all the time. Putman, 337.
The de minimis rule also applies to private landowners and possessors of land. Hartungat 815.
Municipalities and private landowners have a duty to maintain property in a reasonable and safe condition and to keep the sidewalks safe for the intended use. But that duty does not extend to repair de minimis defects in their sidewalks or flooring. Hartung v. Maple Investment & Development Corp., 243 Ill.App.3d 811, 814 (1993); 745 ILCS 10/3–102(a).
Private Landowners’ duty toward invitees is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them, and he must maintain the premises in a reasonably safe condition. Ward v. Kmart Corp., 136 Ill.2d 132, 141 (1990).
Aggravating Factors in a Trip, Slip and Fall Case
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:
Defect not approaching height difference of two (2) inches. Birck v. City of Quincy, 241 Ill.App.3d 119, 122, (1993).
Frequently traversed areas.” Burns v. City of Chicago, 2016 IL App (1st) 151925
Size, width and depth defective area. West v. City of Hoopeston, 146 Ill.App.3d 538, 542 (1986).
Is the defect in a commercial or residential neighborhood. Birck v. City of Quincy 241 Ill. App. 3d 119
Anticipated volume of traffic on the sidewalk, are to be taken into consideration. Id.
Whether in the defect is outdoors or inside. St. Martin v. First Hospitality Group, Inc. 2014 IL App (2d) 130505.
The weather conditions of the area where the defect is located.Burns v. City of Chicago, 2016 IL App (1st) 151925
Lightning Conditions. Burns v. City of Chicago, 2016 IL App (1st) 151925
What is the difference in the de minimis rule for a residential area vs. a commercial area?
In a residential area, a 2 inch displacement is actionable but a variation of only 1 ⅛ inches, without aggravating factors is de minimis. Warner v. City of Chicago, 72 Ill.2d 100, 104–05, (1978).
A variance of 1 ⅞ inches was de minimis. Birck, 241 Ill.App.3d at 121–22. Finally, in Putman,
one-inch displacement was de minimis. Putman, 337 Ill.App.3d at 202–03.
In a ‘busy commercial district,’ it is reasonable to infer that a pedestrian could be sufficiently distracted to overlook an otherwise de minimis defect.” Putman, 337 Ill.App.3d at 205, 271 (quoting Baker v. City of Granite City, 75 Ill.App.3d 157, 160(1979).
Through the distinctions between de minimis in a residential area and commercial area seem similar, a defect in a busy commercial district may be actionable but might not be in a residential area. Baker v. City of Granite City, 75 Ill.App.3d 157,160 (1979).
Outside Defects v. Indoor Defects
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.
What Are Common Defences to a Trip, Slip and Fall Case?
Immunity, Defenses, and Duties
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 duty of an owner or occupier of any premises toward invitees is that of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them, and he must maintain the premises in a reasonably safe condition. Ward v. Kmart Corp., 136 Ill.2d 132, 141 (1990).
An owner or occupier of land is not an absolute insurer of the safety of an invitee. Hutter v. Badalamenti, 47 Ill.App.3d 561, 563, (1977).
How is Duty in a Trip, Slip and Fall Case Determined by a Court?
The Court also considers the following factors to determine the existence of a duty:
the reasonable foreseeability of the injury;
the likelihood of the injury;
the magnitude of the burden of guarding against the injury; and
Constructive Notice – exists when the condition is so evident, plainly visible, or has existed for such duration of time that the public entity should have known of its existence by exercising reasonable care and diligence. Ramirez, 318 Ill.App.3d at 22, 251 Ill.Dec. 619, 740 N.E.2d 1190
Open and Obvious
In addition to identifying whether notice existed, determining whether the defect was open and obvious must all be considered.
Open and Obvious means exactly how it sounds. In a sidewalk defect case, when the alleged dangerous condition is easily observable then liability is precluded. Rexroad v. City of Springfield, 207 Ill.2d 33, 44, 277 Ill.Dec. 674, 796 N.E.2d 1040 (2003); see Restatement (Second) of Torts § 343A(1), at 218 (1965). Illinois courts have defined obvious as both the condition and the risk are apparent to and would be recognized by a reasonable person, in the position of the visitor, exercising ordinary perception, intelligence, and judgment. Bruns, 2014 IL 116998, ¶ 16, 386 Ill.Dec. 765, 21 N.E.3d 684 (quoting Restatement (Second) of Torts § 343A cm t. b, at 219 (1965)).
However, Illinois law permits a limited exception for dangers that are open and obvious, and the landowners may be liable for:
harms the landowner can anticipate despite the condition being obvious; Diebert v. Bauer Brothers Construction Co., 141 Ill.2d 430, 434–35, 152 Ill.Dec. 552, 566 N.E.2d 239 (1990) (discussing adoption of Restatement (Second) of Torts § 343A (1965) in Illinois).
For example, where the landowner would anticipate that the invitee would be distracted.
Trip, Slip and Fall Case Examples
Not 2 Inches but Enough Aggravating Factors to Win
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.
Not 2 Inches or Aggravating Factors
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.
De Minimis Rule Applied to a Private Owner
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.
Too Specific Pleadings and Aggravating Factors Backfire
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.
I’ve Tripped, Slipped and Fallen, Do I Have a Case?
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:
The defect must be 2 inches in height and favorable aggravating factors must be present to persuade that the defect is not de minimis.
Identifying the owner of the property and confirming whether they had notice or should have known of the condition or defect.
Determining whether the defect was anticipated and if there was a duty to repair the defect.
To figure out whether you have a successful sidewalk/flooring case, contact us at 312-223-1700 for a free consultation.