                                  Illinois Official Reports

                                           Appellate Court



               St. Martin v. First Hospitality Group, Inc., 2014 IL App (2d) 130505




Appellate Court              CHARLES L. ST. MARTIN, Plaintiff-Appellant, v. FIRST
Caption                      HOSPITALITY GROUP, INC., d/b/a Hilton Chicago/Indian Lake
                             Resort, Defendant-Appellee.


District & No.               Second District
                             Docket No. 2-13-0505


Filed                        May 1, 2014


Held                         In an action for the injuries plaintiff suffered when he tripped on a
(Note: This syllabus         defect in a sidewalk at the entrance to defendant’s hotel, the trial court
constitutes no part of the   properly entered summary judgment for the hotel based on the
opinion of the court but     de minimis rule, under which there is no duty to repair de minimis
has been prepared by the     defects in sidewalks, notwithstanding defendant’s contention that the
Reporter of Decisions        rule should not be applied because the defect was near the hotel’s door
for the convenience of       and that there were questions of fact about other aggravating factors.
the reader.)


Decision Under               Appeal from the Circuit Court of Du Page County, No. 11-L-632; the
Review                       Hon. Patrick J. Leston, Judge, presiding.



Judgment                     Affirmed.


Counsel on                   Thomas J. Manzella and William J. Rock, both of Block, Klukas &
Appeal                       Manzella, P.C., of Joliet, for appellant.

                             Melissa A. Murphy-Petros and William S. Cook, both of Wilson,
                             Elser, Moskowitz, Edelman & Dicker, LLP, of Chicago, for appellee.
     Panel                     JUSTICE HUDSON delivered the judgment of the court, with
                               opinion.
                               Justices McLaren and Jorgensen concurred in the judgment and
                               opinion.




                                                 OPINION

¶1         Plaintiff, Charles L. St. Martin, appeals the trial court’s summary judgment for defendant,
       First Hospitality Group, Inc. Plaintiff alleged that he was injured when he tripped and fell on an
       uneven portion of sidewalk outside of a hotel owned by defendant. The trial court determined
       that defendant did not owe plaintiff a duty of care, because the defect was de minimis. We
       affirm.

¶2                                            I. BACKGROUND
¶3          On January 19, 2011, plaintiff filed a complaint seeking damages for injuries he sustained
       when he fell outside of the entryway to defendant’s hotel. Plaintiff alleged that, on May 10,
       2010, he tripped over an uneven surface as he approached the hotel’s entryway at
       approximately 9 p.m. He alleged that the area had poor lighting, but he did not make any other
       allegations about the nature of the area or how much foot traffic was present.
¶4          At his deposition, plaintiff testified that, on the day of the fall, he was attending a seminar
       at the hotel. He went outside to smoke a cigarette at some benches 10 to 12 feet from the hotel,
       where there was also an ashtray. When he returned, he tripped over uneven slabs of concrete a
       couple of feet away from one of the doors at the main entrance to the hotel. Photos in the record
       show that it was essentially just outside of the doors, right before the entryway rug, and under a
       roof that extended over a drive-up area at the front of the hotel. One person who was in a
       nearby van saw plaintiff fall and assisted him. Plaintiff injured his knee in the fall. Plaintiff
       stated that the lighting was brighter as he got nearer to the entryway, because the lights were
       “up in the ceiling of that thing,” and he did not think that he fell because of problems with the
       lighting. Plaintiff’s brother later measured the height difference between the concrete slabs at
       between 1½ and 1¾ inches.
¶5          Defendant provided an exhibit of photos, purportedly taken by the hotel’s manager the day
       after the fall, that show the difference at around a half-inch. The record contains photocopies of
       the photos, in which it is difficult to read the ruler or see whether the ruler is held at an angle.
       An expert retained by defendant observed the area on October 24, 2012, and measured the
       height difference at under an inch. The expert averred that the sidewalk would heave and move
       during normal winter conditions and that the varying alignments of the concrete slabs were
       typical, commonplace, and expected. He opined that the area was not in need of repair or
       replacement and that it did not present a hazardous condition. He did not address the condition
       of the area on May 10, 2010.
¶6          Defendant moved for summary judgment, arguing that it did not owe plaintiff a duty of
       care, because the defect in the sidewalk was de minimis. Plaintiff argued that the de minimis

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       rule was inapplicable because of how near the defect was to the front doors and that there were
       issues of fact as to whether aggravating circumstances existed. The trial court granted the
       motion for summary judgment, finding that the defect was de minimis as a matter of law and
       further noting that the affidavit of defendant’s expert was unrebutted. Plaintiff appeals.

¶7                                              II. ANALYSIS
¶8          Plaintiff contends that the de minimis rule does not apply, because the defect was near the
       front doors of the hotel. He further contends that there are issues of fact about the height of the
       defect.
¶9          Summary judgment is appropriate where “the pleadings, depositions, and admissions on
       file, together with the affidavits, if any, show that there is no genuine issue as to any material
       fact and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS
       5/2-1005(c) (West 2010). In determining whether a genuine issue of material fact exists, a
       court must construe the materials of record strictly against the movant and liberally in favor of
       the nonmoving party. See Perri v. Furama Restaurant, Inc., 335 Ill. App. 3d 825, 829 (2002).
       “If fair-minded persons could draw different inferences from the undisputed facts, the issues
       should be submitted to a jury to determine what inference seems most reasonable.” Menough v.
       Woodfield Gardens, 296 Ill. App. 3d 244, 245-46 (1998). We review de novo the entry of
       summary judgment. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90,
       102 (1992).
¶ 10        To prevail in a negligence action, the plaintiff must prove that the defendant owed a duty,
       that the defendant breached that duty, and that the plaintiff’s injury proximately resulted from
       that breach. Tzakis v. Dominick’s Finer Foods, Inc., 356 Ill. App. 3d 740, 745-46 (2005). The
       existence of a duty generally is a question of law and, therefore, may be resolved on a motion
       for summary judgment. Ralls v. Village of Glendale Heights, 233 Ill. App. 3d 147, 154 (1992).
¶ 11        An owner or occupier of land is not an absolute insurer of the safety of an invitee. See
       Hutter v. Badalamenti, 47 Ill. App. 3d 561, 563 (1977). 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. K mart Corp., 136 Ill. 2d 132, 141 (1990).
¶ 12        The primary factors that a court considers in determining the existence of a duty include:
       “(1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the
       magnitude of the burden of guarding against the injury, and (4) the consequences of placing
       that burden on the defendant.” Marshall v. Burger King Corp., 222 Ill. 2d 422, 436-37 (2006).
¶ 13        The de minimis rule originated in cases involving municipalities, where it was noted that
       “[m]unicipalities 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). Thus, although a municipality
       has a duty to keep its property in a reasonably safe condition, it has no duty to repair de minimis
       defects in its sidewalks. Putman v. Village of Bensenville, 337 Ill. App. 3d 197, 202 (2003);
       Hartung v. Maple Investment & Development Corp., 243 Ill. App. 3d 811, 814 (1993). 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 Ill. App. 3d at 202. “It is common knowledge that sidewalks are
       constructed in slabs for the very reason that they must be allowed to expand and contract with


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       changes in temperature.” Hartung, 243 Ill. App. 3d at 816. In Hartung, we extended the
       de minimis rule to apply to private owners and possessors of land. Id. at 815.
¶ 14        Whether a height variance between two sidewalk slabs is de minimis depends on all of the
       pertinent facts, and there is no simple standard to separate de minimis defects from actionable
       ones. Arvidson v. City of Elmhurst, 11 Ill. 2d 601, 604 (1957); Hartung, 243 Ill. App. 3d at 814;
       Birck v. City of Quincy, 241 Ill. App. 3d 119, 122 (1993). However, it is well established that,
       absent any aggravating factors, a vertical displacement of less than two inches is de minimis.
       Thus, the supreme court has held that, although a displacement of 2 inches in a residential area
       is actionable, a variation of only 1⅛ inches, absent more, is de minimis. Warner v. City of
       Chicago, 72 Ill. 2d 100, 104-05 (1978). In Birck, the appellate court held that a variance of 1⅞
       inches was de minimis. Birck, 241 Ill. App. 3d at 121-22. Finally, in Putman, we held that a
       one-inch displacement was de minimis. Putman, 337 Ill. App. 3d at 202-03.
¶ 15        However, we held in Hartung that “the de minimis rule cannot be applied blindly to cover
       every situation. Its application may very well depend on other factors.” Hartung, 243 Ill. App.
       3d at 817. Thus, we have observed that, “[i]n 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 (quoting Baker v. City of Granite City, 75 Ill. App. 3d
       157, 160 (1979)). Likewise, in Repinski v. Jubilee Oil Co., 85 Ill. App. 3d 15, 20-21 (1980), the
       unreasonableness of a defect was a question for the jury when, among other things, there was
       evidence of commercial use of the area. See also Baker, 75 Ill. App. 3d at 160 (defect in a busy
       commercial district was actionable, but it might not have been actionable in a residential area).
       If there is evidence of an aggravating circumstance, whether the defendant owed a duty to the
       plaintiff is a question of fact. See generally Repinski, 85 Ill. App. 3d at 20-21. But if the
       plaintiff fails to provide evidence that such a circumstance exists, summary judgment is
       appropriate. See Hartung, 243 Ill. App. 3d at 817. Here, plaintiff contends that the location of
       the defect, outside the entry to a commercial establishment, was an aggravating circumstance
       precluding the entry of summary judgment.
¶ 16        In Hartung, the plaintiff tripped and fell on a raised portion of sidewalk near a store located
       in a shopping center. The raised portion of the sidewalk was between one-half and
       three-quarters of an inch, and the trial court granted summary judgment in favor of the
       defendant. Noting a lack of pleading or evidence that the area was congested with traffic, we
       applied the de minimis rule. Id. at 815. In doing so, we noted that it is a great burden to
       maintain perfect sidewalks and that to require landowners to monitor and maintain them
       perfectly at all times would be harsh and impractical. Id. at 817. Given 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. Id. at 816. We further noted that
       sidewalks are constructed in slabs for the very reason that they must be allowed to expand and
       contract with changes in temperature. Id. Also, imperfections in sidewalks can be avoided by
       pedestrians more easily than imperfections on stairs. Id. “Moreover, because 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. We believe that a minor defect
       such as the one in the present case is one that a person exercising ordinary care could have
       easily avoided. The defect is one which is routinely encountered in an ordinary sidewalk.” Id.
       at 816-17.



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¶ 17        Harris v. Old Kent Bank, 315 Ill. App. 3d 894, 902 (2000), illustrates when an aggravating
       circumstance may prevent application of the de minimis rule. There, we declined to apply the
       de minimis rule when the plaintiff specifically alleged that the defendant, a bank, failed to
       provide a safe means of ingress and egress to the only entrance of its establishment. We noted
       that it was not 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 not be great. Thus, we did not apply the rule under the particular facts
       of the case. Id.
¶ 18        In Bledsoe v. Dredge, 288 Ill. App. 3d 1021, 1024 (1997), the Third District distinguished
       Hartung and declined to apply the de minimis rule to a fall outside of a partially enclosed
       entryway to a commercial building containing shops and businesses. There, the entry was
       described as a large covered corridor open on the end, with marble flooring. The court noted
       that the existence of shops and businesses could be expected to draw patrons to the entryway.
       Further, the area was partially enclosed and was not fully exposed to the weather. The court
       observed our statement in Hartung that indoor flooring that is 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. Id. Thus, the court declined to apply the de minimis rule
       and reversed a grant of summary judgment. One justice dissented, stating that he would apply
       the de minimis rule anytime a surface has been exposed to the elements. Id. at 1025 (Holdridge,
       J., dissenting).
¶ 19        Here, it is undisputed that the height variation between the concrete slabs was less than two
       inches. Such a defect generally is not actionable, because it is de minimis. Further, plaintiff has
       not specifically alleged or provided any evidence that an aggravating circumstance such as
       heavy foot traffic, distraction, or congestion existed. Instead, the question is whether the close
       proximity to the covered entryway of the commercial building was an aggravating
       circumstance that removes application of the de minimis rule.
¶ 20        We apply Hartung and find that the de minimis rule applies. As we held in Hartung, given
       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. Here, while the
       area was partially covered, its sides were open, exposing it to the elements. Further,
       pedestrians can avoid imperfections in an outdoor walkway more easily than on indoor
       flooring. Requiring a landowner to constantly monitor and perfectly maintain outdoor
       walkways that are exposed to the elements would create an undue burden.
¶ 21        As in Hartung, we view the uneven portion of sidewalk as a minor defect that a person
       exercising ordinary care could easily avoid, as it is the type of imperfection that is routinely
       encountered on an ordinary sidewalk. Hartung, 243 Ill. App. 3d at 816-17. In this regard, we
       note that defendant provided an affidavit from an expert stating the opinion that the area was
       not in need of repair or replacement and that it did not present a hazardous condition. While
       that affidavit was based on observations made well after plaintiff’s fall, it nevertheless was
       uncontroverted by plaintiff, who did not present any expert testimony at all.
¶ 22        We find Bledsoe and Harris distinguishable. In Harris, we were concerned with a specific
       pleading that the plaintiff failed to provide a safe means of ingress and egress to the sole entry
       when the plaintiff might also have been distracted. Here, plaintiff has not alleged that he lacked
       a choice of doors used to enter or exit the hotel and he has not alleged that he was distracted or
       that congestion or foot traffic was an aggravating circumstance. At most, he speculates that he

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       might have been looking for a key or that the door mat might have obscured the imperfection,
       without having presented evidence that this was actually the case. In Bledsoe, the Third
       District was faced with a location that was sheltered from the elements on three sides and that
       had a marble floor. That is far different from a covered drive-up entry that is still exposed to the
       elements and constructed of concrete. As we noted in Hartung, indoor flooring is
       distinguishable from concrete that is exposed to the elements. Thus, we apply Hartung and
       affirm.

¶ 23                                     III. CONCLUSION
¶ 24       The trial court properly applied the de minimis rule and granted defendant’s motion for
       summary judgment. Accordingly, the judgment of the circuit court of Du Page County is
       affirmed.

¶ 25      Affirmed.




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