NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2020 IL App (3d) 190345-U
Order filed February 14, 2020 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
LYNNE WRIGHT, ) Appeal from the Circuit Court ) of the 10th Judicial Circuit, Plaintiff-Appellant, ) Peoria County, Illinois. ) v. ) Appeal No. 3-19-0345 ) Circuit No. 17-LM-1522 IMI GRAND PRAIRIE NORTH, LLC, d/b/a ) The Shoppes at Grand Prairie, ) Honorable ) Michael P. McCuskey Defendant-Appellee. ) Judges, Presiding. ____________________________________________________________________________
JUSTICE O’BRIEN delivered the judgment of the court. Presiding Justice Lytton and Justice Carter concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: Summary judgment in favor of the owner of a shopping mall in an action by a mall patron to recover for injuries sustained when the patron tripped on the cement sidewalk was reversed because there were questions of fact regarding whether the patron’s shopping bag was an aggravating factor causing her trip over a de minimis sidewalk defect and whether the mall had constructive notice of the defect.
¶2 The plaintiff in an action to recover for injuries sustained in a fall at the defendant’s
shopping mall appealed the grant of summary judgment in favor of the defendant.
¶3 FACTS ¶4 The plaintiff, Lynne Wright, was injured on July 1, 2017, while shopping with her daughter
at The Shoppes at Grand Prairie, a shopping mall owned and/or possessed by the defendant, IMI
Grand Prairie North, LLC. The plaintiff filed suit against the defendant, alleging that she fell due
to the negligence of the defendant. The plaintiff’s amended complaint alleged that she was carrying
a shopping bag so that she could not see the unevenness of the pavement, and she tripped and fell.
¶5 The defendant filed a motion for summary judgment, arguing that the unevenness in the
pavement was so slight that it was not actionable as a matter of law pursuant to the de minimis
rule. Further, the plaintiff could not show that the defendant had actual or constructive notice of
the defect. In support of the motion for summary judgment, the defendant submitted the plaintiff’s
deposition. The plaintiff testified that she was walking with her daughter and carrying a shopping
bag that contained two pairs of shoes. The mall was not crowded, but there were two people
walking the opposite direction. The plaintiff greeted the other two people and then when she
stepped, her left ankle buckled. She fell on her knee and her face, which required her to have her
partial bridge replaced.
¶6 The defendant also submitted the deposition of Jason McKee, the operations manager from
the defendant’s property management firm. McKee testified that the defendant’s property was
made up of approximately 325 square feet of sidewalk. McKee would walk and drive the property
during the weekdays and any weekend day that he was on the property. The part-time maintenance
man also performed checks on the area and would report any dangerous conditions. Also, the
security firm did daily checks. McKee testified that he did not have any indication prior to the
plaintiff’s injury from any of these sources of any type of dangerous condition in the area where
the plaintiff fell. However, the area at issue had been ground down at least six months prior to the
plaintiff’s accident because the concrete had risen.
2 ¶7 The general manager of the defendant’s shopping center, Greg Slowiak, testified that he
was in charge of the overall maintenance of the property. Slowiak testified that the weather
generally caused concrete sidewalks to become uneven. The location where the plaintiff fell had
been previously ground down and had not been ground down again after that date. Slowiak testified
that no one paid more attention to the area since it had been ground down because he thought the
tripping hazard had been remedied. Prior to the plaintiff’s fall, Slowiak testified that he did not
know of any other falls in the area. The defendant also submitted photographs showing the defect
in the sidewalk where the plaintiff fell.
¶8 The trial court granted the defendant’s motion for summary judgment. Although the trial
court’s oral ruling was a little unclear, it stated that there were no genuine issues of material fact
and that the defendant was entitled to judgment as a matter of law. The plaintiff appealed.
¶9 ANALYSIS
¶ 10 The plaintiff argues that the trial court erred in granting summary judgment to the
defendant. First, the plaintiff argues that there was a question of material fact whether the
plaintiff’s shopping bag was an aggravating factor so that the de minimis rule did not apply.
Second, the plaintiff argues that the trial court found that there was notice. We review a grant of
summary judgment de novo, determining whether the pleadings, depositions, admissions, and
affidavits on file, when viewed in the light most favorable to the nonmoving party, reveal any
genuine issues of material fact that would preclude judgment as a matter of law. 735 ILCS 5/2-
1005(c) (West 2016); Brugger v. Joseph Academy, Inc., 202 Ill. 2d 435, 446 (2002).
¶ 11 A plaintiff alleging negligence must allege facts establishing that the defendant owed the
plaintiff a duty of care, that he breached that duty of care, and that the alleged breach proximately
caused the plaintiff’s injuries. Iseberg v. Gross, 227 Ill. 2d 78, 86-87 (2007). When determining
3 whether the defendant owed the plaintiff a duty of care, courts consider “ ‘(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.’ ”
St. Martin v. First Hospitality Group, Inc., 2014 IL App (2d) 130505, ¶ 12 (quoting Marshall v.
Burger King Corp., 222 Ill. 2d 422, 436-37 (2006)). The question of whether a duty is owed is a
question of law for the court. Iseberg, 227 Ill. 2d at 87. The burden to prove all the elements of a
negligence claim remains on the plaintiff throughout the proceedings. It is not the defendant’s
burden to disprove negligence. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 233 (2010).
¶ 12 The defendant, as an owner or possessor of the mall, had a duty of reasonable care under
the circumstances and a duty to maintain the premises in a reasonably safe condition. Hartung v.
Maple Investments and Development Corp., 243 Ill. App. 3d 811, 816 (1993). To prevail on a
premises liability negligence claim, the plaintiff must prove: (1) a condition on the property
presented an unreasonable risk of harm to people on the property; (2) the defendant knew or, in
the exercise of ordinary care, should have known of both the condition and the risk; (3) the
defendant could reasonably expect that people on the property would not discover or realize the
danger or would fail to protect themselves against such danger; (4) the defendant was negligent in
one or more ways; (5) the plaintiff was injured; and (6) the defendant’s negligence was a proximate
cause of the plaintiff’s injury. Hope v. Hope, 398 Ill. App.
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NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
2020 IL App (3d) 190345-U
Order filed February 14, 2020 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
LYNNE WRIGHT, ) Appeal from the Circuit Court ) of the 10th Judicial Circuit, Plaintiff-Appellant, ) Peoria County, Illinois. ) v. ) Appeal No. 3-19-0345 ) Circuit No. 17-LM-1522 IMI GRAND PRAIRIE NORTH, LLC, d/b/a ) The Shoppes at Grand Prairie, ) Honorable ) Michael P. McCuskey Defendant-Appellee. ) Judges, Presiding. ____________________________________________________________________________
JUSTICE O’BRIEN delivered the judgment of the court. Presiding Justice Lytton and Justice Carter concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: Summary judgment in favor of the owner of a shopping mall in an action by a mall patron to recover for injuries sustained when the patron tripped on the cement sidewalk was reversed because there were questions of fact regarding whether the patron’s shopping bag was an aggravating factor causing her trip over a de minimis sidewalk defect and whether the mall had constructive notice of the defect.
¶2 The plaintiff in an action to recover for injuries sustained in a fall at the defendant’s
shopping mall appealed the grant of summary judgment in favor of the defendant.
¶3 FACTS ¶4 The plaintiff, Lynne Wright, was injured on July 1, 2017, while shopping with her daughter
at The Shoppes at Grand Prairie, a shopping mall owned and/or possessed by the defendant, IMI
Grand Prairie North, LLC. The plaintiff filed suit against the defendant, alleging that she fell due
to the negligence of the defendant. The plaintiff’s amended complaint alleged that she was carrying
a shopping bag so that she could not see the unevenness of the pavement, and she tripped and fell.
¶5 The defendant filed a motion for summary judgment, arguing that the unevenness in the
pavement was so slight that it was not actionable as a matter of law pursuant to the de minimis
rule. Further, the plaintiff could not show that the defendant had actual or constructive notice of
the defect. In support of the motion for summary judgment, the defendant submitted the plaintiff’s
deposition. The plaintiff testified that she was walking with her daughter and carrying a shopping
bag that contained two pairs of shoes. The mall was not crowded, but there were two people
walking the opposite direction. The plaintiff greeted the other two people and then when she
stepped, her left ankle buckled. She fell on her knee and her face, which required her to have her
partial bridge replaced.
¶6 The defendant also submitted the deposition of Jason McKee, the operations manager from
the defendant’s property management firm. McKee testified that the defendant’s property was
made up of approximately 325 square feet of sidewalk. McKee would walk and drive the property
during the weekdays and any weekend day that he was on the property. The part-time maintenance
man also performed checks on the area and would report any dangerous conditions. Also, the
security firm did daily checks. McKee testified that he did not have any indication prior to the
plaintiff’s injury from any of these sources of any type of dangerous condition in the area where
the plaintiff fell. However, the area at issue had been ground down at least six months prior to the
plaintiff’s accident because the concrete had risen.
2 ¶7 The general manager of the defendant’s shopping center, Greg Slowiak, testified that he
was in charge of the overall maintenance of the property. Slowiak testified that the weather
generally caused concrete sidewalks to become uneven. The location where the plaintiff fell had
been previously ground down and had not been ground down again after that date. Slowiak testified
that no one paid more attention to the area since it had been ground down because he thought the
tripping hazard had been remedied. Prior to the plaintiff’s fall, Slowiak testified that he did not
know of any other falls in the area. The defendant also submitted photographs showing the defect
in the sidewalk where the plaintiff fell.
¶8 The trial court granted the defendant’s motion for summary judgment. Although the trial
court’s oral ruling was a little unclear, it stated that there were no genuine issues of material fact
and that the defendant was entitled to judgment as a matter of law. The plaintiff appealed.
¶9 ANALYSIS
¶ 10 The plaintiff argues that the trial court erred in granting summary judgment to the
defendant. First, the plaintiff argues that there was a question of material fact whether the
plaintiff’s shopping bag was an aggravating factor so that the de minimis rule did not apply.
Second, the plaintiff argues that the trial court found that there was notice. We review a grant of
summary judgment de novo, determining whether the pleadings, depositions, admissions, and
affidavits on file, when viewed in the light most favorable to the nonmoving party, reveal any
genuine issues of material fact that would preclude judgment as a matter of law. 735 ILCS 5/2-
1005(c) (West 2016); Brugger v. Joseph Academy, Inc., 202 Ill. 2d 435, 446 (2002).
¶ 11 A plaintiff alleging negligence must allege facts establishing that the defendant owed the
plaintiff a duty of care, that he breached that duty of care, and that the alleged breach proximately
caused the plaintiff’s injuries. Iseberg v. Gross, 227 Ill. 2d 78, 86-87 (2007). When determining
3 whether the defendant owed the plaintiff a duty of care, courts consider “ ‘(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.’ ”
St. Martin v. First Hospitality Group, Inc., 2014 IL App (2d) 130505, ¶ 12 (quoting Marshall v.
Burger King Corp., 222 Ill. 2d 422, 436-37 (2006)). The question of whether a duty is owed is a
question of law for the court. Iseberg, 227 Ill. 2d at 87. The burden to prove all the elements of a
negligence claim remains on the plaintiff throughout the proceedings. It is not the defendant’s
burden to disprove negligence. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 233 (2010).
¶ 12 The defendant, as an owner or possessor of the mall, had a duty of reasonable care under
the circumstances and a duty to maintain the premises in a reasonably safe condition. Hartung v.
Maple Investments and Development Corp., 243 Ill. App. 3d 811, 816 (1993). To prevail on a
premises liability negligence claim, the plaintiff must prove: (1) a condition on the property
presented an unreasonable risk of harm to people on the property; (2) the defendant knew or, in
the exercise of ordinary care, should have known of both the condition and the risk; (3) the
defendant could reasonably expect that people on the property would not discover or realize the
danger or would fail to protect themselves against such danger; (4) the defendant was negligent in
one or more ways; (5) the plaintiff was injured; and (6) the defendant’s negligence was a proximate
cause of the plaintiff’s injury. Hope v. Hope, 398 Ill. App. 3d 216, 219 (2010).
¶ 13 A property owner does not have a duty to keep all sidewalks in perfect condition at all
times; the duty is to maintain the property in a reasonably safe condition. Hartung, 243 Ill. App.
3d at 814. Thus, courts have applied a de minimis rule, which holds that minor defects in sidewalks
are not actionable as a matter of law. Id. The de minimis rule applies to actions against
municipalities and has been extended to private owners of land. Id. at 816. The plaintiff
4 acknowledges that the size of the defect in this case, by itself, was de minimis, but she contends
that her large shopping bag, which the defendant should expect patrons of the mall to carry, was
an aggravating factor that prevented her from seeing and avoiding the defect in the sidewalk, so
the defect was actionable. See id. at 815 (minor defects in a sidewalk may be actionable when
there are other aggravating factors such as heavy traffic).
¶ 14 The plaintiff alleged in her amended complaint that her shopping bag prevented her from
seeing the defect in the sidewalk. The defendant argues, first, that a shopping bag was not a
sufficient distraction so to be an exception to the de minimis rule and, second, that the plaintiff’s
deposition testimony did not support her allegation. We cannot say as a matter of law that a
shopping bag can never be an aggravating factor. In this case, the plaintiff alleged that the shopping
bag prevented her from seeing the defect. Her deposition testimony was that she was carrying the
bag on her left arm, she could not see the defect in the sidewalk, and she fell after her left ankle
gave way after stepping on the defect. Reviewing the record in the light most favorable to the
plaintiff, with our de novo review, we find that there is a question of fact whether her shopping
bag was an aggravating factor. See Harris v. Old Kent Bank, 315 Ill. App. 3d 894, 902 (2000) (the
fact that the defect was at the sole entry to the defendant’s business, where plaintiffs are expected
to be distracted, was sufficient to create an issue of fact); see also Warner v. City of Chicago, 72
Ill. 2d 100, 105 (1978) (in was a question for the jury whether a half inch of snow obscuring a
minor defect in a sidewalk was actionable). Thus, the trial court erred in granting summary
judgment in favor of the defendant on the basis that the defect was de minimis as a matter of law.
¶ 15 With respect to notice, the defendant argues that the plaintiff could not demonstrate that
the defendant had knowledge or had reason to know of the defect. The plaintiff argues that the
5 defendant had constructive notice because it had a prior issue in the area, and remedied that area,
but had done nothing to change the area so that the problem would not reoccur.
¶ 16 The burden of proving notice is on the party charging it. Burke v. Grillo, 227 Ill. App. 3d
9, 18 (1992). In the absence of proof of actual knowledge of a dangerous condition, to prove
constructive notice, a plaintiff must show that the hazardous condition existed for a sufficient
amount of time or that, through the exercise of reasonable care, the defendant should have
discovered the dangerous condition. Hornacek v. 5th Avenue Property Management, 2011 IL App
(1st) 103502, ¶ 29.
¶ 17 McKee and Slowiak both testified that they had no notice of the complained of condition
prior to the plaintiff’s fall and were unaware of any employee having such notice, but the exact
same area had been ground down several months prior to the plaintiff’s fall. Slowiak testified that
he thought the problem had been taken care of when it was ground down and that none of the
maintenance people paid it any extra attention going forward. Viewing the record in the light most
favorable to the plaintiff, we find that there is a question of fact whether the actual knowledge of
the prior known issue was sufficient to infer constructive knowledge of the defect on the defendant.
The trial court’s conflicting oral ruling regarding notice, 1 where he alludes to the notion that he
found there was constructive notice, also leaves us with the undeniable feeling that there is a
material question of fact sufficient to overcome the defendant’s motion. Thus, we also reverse the
grant of summary judgment on the basis of notice.
¶ 18 CONCLUSION
¶ 19 The judgment of the circuit court of Peoria County is reversed and remanded.
1 The record of proceedings of the trial court’s decision reads: “I just don’t think you can then eliminate actual notice from the testimony into constructive notice ***.” That statement seemingly conflicts with the remainder of the trial court’s oral ruling and its adoption of the defendant’s memorandum in support of summary judgment. 6 ¶ 20 Reversed and remanded.