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Harris v. Old Kent Bank

September 01, 2000

ANN H. HARRIS, PLAINTIFF-APPELLANT,
v.
OLD KENT BANK, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Kane County. No. 97--L--609 Honorable Pamela K. Jensen, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Bowman

Plaintiff, 74-year-old Ann Harris, brought a negligence action in the circuit court of Kane County against defendant, Old Kent Bank, for injuries she sustained when she tripped and fell on the sidewalk as she exited the bank. Defendant filed a motion for summary judgment, contending that the height differential between the two slabs of the concrete sidewalk upon which plaintiff tripped was so minor as to constitute a de minimus defect and therefore defendant owed plaintiff no duty. The trial court granted defendant's summary judgment motion, and plaintiff appeals.

On appeal plaintiff contends that (1) the trial court erred in granting defendant's motion for summary judgment, as a genuine issue of material fact existed regarding whether the size of the sidewalk defect plaintiff complained of was de minimus; and (2) the trial court abused its discretion in denying plaintiff's motion for a continuance of the hearing on the summary judgment motion.

The following facts are taken from the pleadings and the bystander's report. On October 30, 1995, at approximately 12:45 p.m., plaintiff exited defendant's banking facility after transacting business. In the preceding five years plaintiff had transacted business at the bank about once a week. On the date of the incident, the day was clear and dry. Plaintiff walked toward her car, which was parked in the first parking space nearest to the entrance of the bank. Plaintiff did not remember ever parking in this space, as usually another car would be parked there. The parking spot was directly parallel to a portion of the sidewalk leading to the entrance. Photographs of the area showed that the parking lot and sidewalk are outdoors and completely exposed to the elements. Photographs also showed that the sidewalk consisted of a short portion leading from the first parking space to the bank and a longer portion running parallel to the length of defendant's building and adjacent to the other parking spaces for defendant's patrons.

While walking toward her car, plaintiff caught her foot on one of the slabs of the sidewalk that was higher than an adjoining slab. Plaintiff lost her balance and fell forward to the sidewalk. As a result of the fall, plaintiff sustained multiple injuries, including a fractured elbow. Both an ambulance and the St. Charles police department were summoned to the bank.

Neither plaintiff nor anyone else to her knowledge measured the height differential between the two slabs. Officer Charles Nyari of the St. Charles police department responded to the call regarding the incident at the bank. As a result of his observations and investigation of the incident, he completed a report. According to the report, the height differential between the slabs of sidewalk was "an approximate one inch." Nothing in the officer's report or affidavit indicates whether he measured the height differential.

Following the accident, plaintiff's son took photos of the area where plaintiff allegedly tripped over the sidewalk. At the point where the height differential existed between the two slabs of concrete, plaintiff's son placed a shoe plaintiff had been wearing, as a device for measuring the height differential.

On April 9, 1999, Sandra Holder, defendant's bank manager, learned the precise area where plaintiff claimed to have fallen and measured the height differential of the two sidewalk slabs. The distance from the top plane of the lower slab to the top plane of the higher slab was three-fourths of an inch. According to Holder's deposition testimony, there had been no repairs to the sidewalk since plaintiff's accident.

On October 23, 1997, plaintiff sued defendant for negligence. Defendant answered, denying any liability. In May 1999 defendant filed its motion for summary judgment contending that, pursuant to photographs, Holder's affidavit, and excerpts from plaintiff's discovery deposition, all of which were attached to the motion, and Illinois case law, the height differential between the two sidewalk slabs upon which plaintiff allegedly tripped constituted a de minimus sidewalk defect and, therefore, defendant owed plaintiff no duty.

Plaintiff filed a response, attaching the photographs taken by her son, excerpts from her discovery deposition, Officer Nyari's incident report, and excerpts from the discovery deposition of Holder. Plaintiff asserted that the photographs attached to her response "distinctly indicate that there is at least a one-inch, if not larger, disparity" between the two slabs of sidewalk.

At the beginning of the hearing conducted on defendant's summary judgment motion, plaintiff requested that the hearing be continued until (1) defendant complied with its promise to produce certain documents and records that Holder identified during her deposition and (2) plaintiff had the opportunity to submit an affidavit from Officer Nyari regarding his measurement of the one-inch height differential where plaintiff's injuries occurred. Defendant responded that the supplemental production request in question was not yet due and that the items requested were broader and different from those referred to at Holder's deposition. Additionally, the items requested were not relevant to the issue raised in the summary judgment motion pertaining to the de minimus height differential of the sidewalk.

Plaintiff maintained that the parties had made an oral agreement during Holder's deposition that the documents would be produced and that defendant was obligated to comply with that promise regardless of whether subsequent written confirmation of the request had been received by defendant. Plaintiff also asserted that the requested documentation was material and relevant to the issues.

Defendant replied by reiterating the difference in scope and nature between the items requested in the written supplemental production request and the items requested at Holder's deposition. Defendant also stated that there had never been any specific agreement to produce the items requested at Holder's deposition but only an agreement that Holder would inquire as to whether certain documents existed.

The court denied plaintiff's request for a continuance but granted plaintiff leave to supplement the record with Officer Nyari's affidavit. The court stated that it would consider the facts as ...


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