DENNIS R. MORRIS and DOROTHY J. MORRIS, Plaintiffs-Appellants,
INGERSOLL CUTTING TOOL COMPANY and D.I. PROPERTIES, INC., Defendants-Appellees.
Appeal from the Circuit Court of Winnebago County, No. 10-L-423 Honorable Eugene G. Doherty, Judge, Presiding.
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice McLaren concurred in the judgment and opinion.
¶ 1 Plaintiffs, Dennis Morris (Morris) and Dorothy Morris, appeal from the trial court's grant of summary judgment to defendants, Ingersoll Cutting Tool Co. (Ingersoll) and D.I. Properties, Inc. (D.I.). Plaintiffs brought a negligence suit against defendants after Morris tripped and fell on defendants' property. Plaintiffs alleged that defendants failed to maintain the premises in a reasonably safe condition. In granting defendants' motion for summary judgment, the trial court held that the defect on which plaintiff tripped, measuring 1½ inches high, was de minimis and thus not actionable. Plaintiffs appeal, arguing that the de minimis rule should not be applied given the overall size of the defect and the applicability of other aggravating factors. We disagree and affirm the judgment of the trial court.
¶ 2 I. BACKGROUND
¶ 3 On June 29, 2009, Morris, in his capacity as a truck driver for Con-way Freight (Con-way), stopped at the premises owned by D.I. and leased by Ingersoll to receive goods, as he had done three or four times previously. Morris backed his truck to the loading bay and began to disembark from the vehicle, facing the inside of his vehicle, in accordance with Con-way policy. After reaching the ground, while still facing the trailer, Morris stepped back with his right foot in order to shut the trailer door. His foot caught on a difference in elevation in the ground, which he estimated to be 1½ inches, causing him to fall and sustain injury. Morris was aware of the crack prior to June 29, 2009, and had informed defendants of it.
¶ 4 Rick Davis testified in a deposition that he was the facilities manager of defendants' premises. When asked whether the defect was located where a truck driver would be stepping out of his truck, Davis stated that it was dependent on the length of the trailer and how far a particular trailer was backed into the loading bay. Davis had taken classes covering trip-and-fall prevention where he learned that a one-inch difference in elevation was a rough guideline for a trip hazard. He conducted weekly inspections for hazards on the premises, but there were no written procedures for these inspections or for his job duties. There were approximately 350 employees at the facility.
¶ 5 On October 25, 2011, plaintiffs' expert, Gary Hutter, visited the site with Morris and measured the defect. Plaintiffs submitted an affidavit from Hutter stating:
"The defect on which Mr. Morris tripped on June 30, 2009[, ] is as follows: the asphalt and portions of the curb and associated curb gutter in the area of the fall had cracked in several directions and through a combination of subsidence and erosion, and presented an approximately: 1) 2.5 foot long, 1 foot wide, and 1.5 inches deep depression in the asphalt; and 2) the associated curb and gutter section had an adjacent approximately one foot long, 6 inch [sic], and 0.75 inch deep depression."
Plaintiffs also submitted Morris's own affidavit stating that the defect described by Hutter was the defect on which he tripped.
¶ 6 Defendants moved for summary judgment, which the trial court granted on the basis that the defect in question was de minimis and therefore not actionable. The trial court refused to consider the measurements of the defect beyond the 1½-inch height discrepancy, as Morris's deposition testimony did not indicate that anything beyond the height led him to trip. The court also noted that Hutter's testimony "concerning what the defect looks like now is dubious when describing a condition which he himself suggests takes place over time. Plaintiff did not describe such a depression, just a change in elevation" (emphases in original).
¶ 7 II. ANALYSIS
¶ 8 On appeal, plaintiffs argue that the trial court erred in determining that the defect over which Morris tripped was de minimis, thereby foreclosing their negligence claim. Additionally, plaintiffs argue that the presence of aggravating factors removes the case from the de minimis rule and that the trial court erred in ignoring or rejecting the aggravating factors. Ultimately, plaintiffs contend that the trial court erred in granting summary judgment in favor of defendants.
¶ 9 Plaintiffs argue that a genuine issue of material fact exists as to whether the defect in the asphalt in the area adjacent to defendants' loading bay was de minimis and therefore the trial court erred in granting defendants' motion for summary judgment. "Summary judgment is appropriate where the pleadings, depositions, admissions, and affidavits on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Perez v. Sunbelt Rentals, Inc., ...