Rehearing denied April 27, 2018
from the Circuit Court of Kane County, No. 12-L-119; the Hon.
Mark A. Pheanis, Judge, presiding.
Jones, of Tarpey, Jones & Schroeder, LLC, and David R.
Nordwall, both of Chicago, for appellant.
Jennifer L. Turiello, Dominick L. Lanzito, and Thomas J.
Condon Jr., of Peterson, Johnson & Murray-Chicago, LLC,
of Chicago, for appellee.
JUSTICE BURKE delivered the judgment of the court, with
opinion. Justices McLaren and Zenoff concurred in the
judgment and opinion.
1 Plaintiff, Hollace Bartkowiak, brought a negligence action
against defendant, the City of Aurora, for injuries that she
alleged were caused by a depression located in an asphalt
parking lot of the Route 59 Metra train station. The jury
rendered a verdict in favor of plaintiff but answered yes to
a special interrogatory that asked if the depression had
"a vertical difference of 1.5 inches or less." The
trial court entered judgment for defendant, finding that the
special interrogatory was inconsistent with the general
verdict. In its denial of plaintiff's motion to
reconsider, the court determined that the special
interrogatory resolved the factual question of whether the
depression was de minimis and that, because it was
de minimis and there were no aggravating factors
that could render it actionable, defendant, as a matter of
law, owed no duty to guard against hazards created by the
depression. Plaintiff contends that the special interrogatory
should not have been given, as it was not determinative of an
ultimate fact, and that the answer was not irreconcilable
with the general verdict. Both issues turn on plaintiff's
argument that, even if the depth of the depression was 1.5
inches or less, aggravating factors presented a question of
fact as to whether it posed an unreasonable risk. We agree,
and thus we reverse the trial court's judgment and remand
the cause with directions to reinstate the verdict.
2 I. FACTS
3 At approximately 5:20 p.m. on December 6, 2011, plaintiff
was walking to her parked car in the parking lot of the Route
59 Metra train station, which was owned, managed, controlled,
and maintained by defendant, when plaintiff fell. She had
caught her toe in a depression located in a pavement seam in
a driving aisle as she crossed the aisle to get to her car.
Plaintiff suffered a fractured humerus and underwent four
surgeries, including a total reverse shoulder replacement,
followed by multiple courses of physical therapy.
4 Plaintiff sued defendant for the injuries she sustained as
a result of the fall. She alleged that defendant failed to
maintain the asphalt surface of the parking lot in a
reasonably safe condition. She also contended that defendant
failed to provide adequate artificial lighting in the parking
lot so that pedestrians could see potential defects that
5 Defendant denied the material allegations and raised the
affirmative defenses of contributory negligence and immunity
under section 3-102 of the Local Governmental and
Governmental Employees Tort Immunity Act (Tort Immunity Act)
(745 ILCS 10/3-102 (West 2010)).
6 Following discovery, defendant filed a motion for summary
judgment under section 3-102 of the Tort Immunity Act.
Defendant argued that plaintiff failed to establish that
defendant had actual or constructive notice of the depression
in which she tripped. Defendant also argued that the
depression was de minimis. Plaintiff responded that
the de minimis rule was inapplicable because she
testified during her deposition that she believed that the
depression was four inches deep. Plaintiff reiterated her
allegation that the parking lot's artificial lighting was
insufficient to allow her to spot the depression and avoid
her accident. She further argued that at the time of the
accident her attention was diverted by pedestrian and
vehicular traffic in the parking lot such that the
distraction exception to the open-and-obvious doctrine
7 The trial court denied the motion, finding that a question
of material fact existed as to whether the depression was
de minimis, based upon plaintiff's deposition
testimony that the depression was four inches deep. The court
also rejected defendant's open-and-obvious defense,
finding a material factual dispute based on plaintiff's
deposition testimony regarding the purported insufficiency of
the artificial lighting in defendant's parking lot.
8 After discovery of expert witnesses, defendant filed a
motion to reconsider the order denying summary judgment.
Defendant noted that plaintiff's and defendant's
experts agreed that the lighting in the parking lot was
sufficient when the accident occurred and that the depression
was de minimis.
9 Plaintiff maintained that summary judgment was not
warranted, due to conflicting testimony about both the depth
of the depression and the sufficiency of the lighting.
Plaintiff argued that her expert's testimony about the
depth of the depression and the sufficiency of the lighting
did not defeat her contrary attestations that the depression
had a vertical depth of four inches and that the parking lot
was inadequately illuminated. Notwithstanding her
expert's opinion that the depression appeared shallow,
plaintiff noted that he also had opined that the depression
constituted an unreasonably dangerous condition.
10 Plaintiff further argued that, even accepting her
expert's testimony that the depression appeared to be 1.5
inches deep, aggravating factors rendered the de
minimis rule inapplicable. Plaintiff noted the extremely
high volume of pedestrians and that defendant knew about the
deteriorated condition of the pavement seam, having
previously repaired other openings, cracks, and depressions
along the seam.
11 The trial court granted in part and denied in part the
motion to reconsider. The court found that the sufficiency of
lighting in a commercial or public setting was a subject
requiring expert testimony. Thus, based upon the expert
testimony, the court found that no genuine issue of material
fact existed as to the adequacy of the lighting in the
parking lot, and it awarded defendant summary judgment on
that issue. As to the depression, defendant argued that it
was either de minimis or open and obvious and
therefore not actionable. The court found that
plaintiff's estimation of the depth of the depression as
four inches created a question of fact "as to whether
the [depression was] de ...