Barrett v. FA Group, LLC
2017 IL App (1st) 170168
| Ill. App. Ct. | 2017Background
- Barrett sued FA Group, LLC and 87th Fish Corp. after tripping and falling in a parking-lot pothole on October 28, 2013, alleging negligent maintenance and failure to warn.
- Discovery closed without defendants’ representative being deposed; defendants later submitted an affidavit from owner Mohammed Nofal (dated 2016) stating the depression was no greater than 0.5 inches. Plaintiff thereafter submitted her own affidavit describing her 2-inch-heeled shoe becoming wedged in broken asphalt inside the pothole and the lot being very dark.
- Photographs (taken the day after the fall) show two adjacent depressions in the asphalt, one substantially larger, with visible shadowing but no scale to measure depth.
- Defendants moved for summary judgment invoking the de minimis doctrine (defects under two inches are nonactionable absent aggravating circumstances); the trial court granted summary judgment, finding the defect less than two inches and no aggravating factors.
- On appeal the court considered whether (1) the owner’s 0.5-inch affidavit was uncontroverted and admissible, and (2) the de minimis rule applied given the surrounding circumstances (darkness, broken asphalt, size/width of depression, location in parking lot).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the parking-lot defect is de minimis and therefore nonactionable as a matter of law | Barrett: the defect was not merely a slight height deviation but contained broken asphalt/debris that trapped her 2-in heel; darkness, size and location are aggravating factors creating a jury question | Defendants: the depression was ≤ 0.5 inch (per Nofal affidavit) and less than 2 inches, so de minimis absent aggravating circumstances | Reversed summary judgment — factual dispute exists; defect not de minimis as a matter of law given the circumstances and plaintiff’s affidavit |
| Whether Nofal’s affidavit establishing 0.5-inch depth was uncontradicted and properly considered | Barrett: her affidavit and testimony contradict Nofal’s measurement; Nofal’s affidavit lacks foundation and is conclusory (post‑hoc, after repaving) | Defendants: Nofal’s affidavit shows the defect was only 0.5 inch, supporting summary judgment | Court: Nofal’s affidavit was not entitled to dispositive weight; plaintiff’s affidavit and the affidavit’s lack of factual foundation preclude treating the 0.5-inch figure as undisputed |
| Whether aggravating circumstances (darkness, broken asphalt, size/location) bar application of de minimis rule | Barrett: poor lighting, presence of broken pavement/debris, large depression area and pedestrian use of lot are aggravating and produce triable issues | Defendants: no sufficient aggravating circumstances shown to overcome de minimis rule | Court: aggravating circumstances are material and, viewed in plaintiff’s favor, present a triable issue of fact |
| Whether summary judgment was appropriate without plaintiff deposing Nofal first | Barrett: defendants supplied Nofal’s affidavit without prior deposition; plaintiff sought to depose him before the motion but was prevented | Defendants: relied on affidavit evidence to meet burden for summary judgment | Court: did not decide remainder of discovery issue because summary judgment was reversed on substantive grounds |
Key Cases Cited
- Arvidson v. City of Elmhurst, 11 Ill.2d 601 (discusses de minimis rule and that no mathematical standard exists; determination is fact-specific)
- Warner v. City of Chicago, 72 Ill.2d 100 (de minimis inquiry depends on location and circumstances; factual determination)
- West v. City of Hoopeston, 146 Ill. App.3d 538 (broken sidewalk with loose material within small height variation can present jury question)
- Putman v. Village of Bensenville, 337 Ill. App.3d 197 (municipal duty does not extend to repairing de minimis defects)
- Birck v. City of Quincy, 241 Ill. App.3d 119 (liability generally attaches for sidewalk defects approaching two inches)
- Alqadhi v. Standard Parking, Inc., 405 Ill. App.3d 14 (poor lighting can be an aggravating circumstance preventing summary judgment)
- Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill.2d 90 (standard: summary judgment reviewed de novo)