Barrett v. FA Group, LLC, 90 N.E.3d 537

Background

Barrett fell at night in a small commercial parking lot after her shoe "wedged" in a pothole/area of broken asphalt and she was injured; she sued FA Group, LLC and 87th Fish Corp. for negligent maintenance and failure to warn.
Defendants answered, admitted ownership, and asserted contributory negligence; discovery closed March 18, 2016; plaintiff sought but was initially denied to reopen discovery to depose defendants’ owner.
Defendants moved for summary judgment, relying on an affidavit by owner Mohammed Nofal asserting the depression was no more than 0.5 inches — invoking the de minimis rule (defects <2 inches not actionable absent aggravating factors).
Plaintiff opposed with her deposition, two photographs of the pothole (showing two depressions, one several feet long), and an affidavit stating her 2" heel became lodged in broken pavement within the depression and that it was very dark.
Trial court granted summary judgment for defendants, finding the defect de minimis and that plaintiff’s affidavit conflicted with her deposition; Barrett appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether summary judgment was proper under the de minimis rule	Barrett: the defect included broken asphalt/loose debris that trapped her heel, darkness and lot layout are aggravating factors creating a factual dispute	Defendants: Nofal’s affidavit shows the depression was only 0.5" (under de minimis threshold) and no aggravating circumstances exist	Reversed: genuine factual issues exist about the nature/size of the defect and aggravating circumstances, so summary judgment improper
Whether Nofal’s affidavit was undisputed admissible evidence	Barrett: Nofal was never deposed; his conclusory, post‑event measurement lacks foundation and is contradicted by her affidavit and photos	Defendants: affidavit establishes an uncontradicted fact controlling the case	Court: Nofal’s affidavit was not dispositive — it lacked foundation and was contradicted by plaintiff’s admissible affidavit and other evidence
Whether lighting/lot layout/surface type are aggravating factors to defeat de minimis	Barrett: dim lighting, presence of vehicles/traffic patterns, asphalt condition and wide/long depressed area make the defect foreseeable and not de minimis	Defendants: no sufficient aggravating factors; depth alone is minor	Court: those circumstances are relevant; they present factual issues for the jury and preclude summary judgment
Whether plaintiff’s inconsistent affidavit should be disregarded	Defendants: plaintiff’s affidavit conflicts with deposition and should be ignored	Barrett: affidavit supplements deposition and raises material issues	Court: rejected blanket disregard — plaintiff’s affidavit sufficiently challenges defendants’ proof to create triable issues

Key Cases Cited

Arvidson v. City of Elmhurst, 11 Ill.2d 601 (Ill. 1957) (de minimis rule originates; determination is fact‑specific and depends on surrounding circumstances)
Warner v. City of Chicago, 72 Ill.2d 100 (Ill. 1978) (context matters; same defect may be actionable in a busy area but not in a residential one)
West v. City of Hoopeston, 146 Ill. App.3d 538 (Ill. App. Ct. 1986) (even small vertical variations can be actionable when the area is broken and contains loose debris)
Birck v. City of Quincy, 241 Ill. App.3d 119 (Ill. App. Ct. 1993) (courts often treat defects approaching two inches as actionable)
Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment principles and burden shifting)
Alqadhi v. Standard Parking, Inc., 405 Ill. App.3d 14 (Ill. App. Ct. 2010) (dim lighting can be an aggravating circumstance to resist summary judgment)
Woolums v. Huss, 323 Ill. App.3d 628 (Ill. App. Ct. 2001) (affidavits for summary judgment must state facts admissible in evidence)
Hudson v. City of Chicago, 378 Ill. App.3d 373 (Ill. App. Ct. 2007) (expert or conclusory opinions without foundation are insufficient)