Illinois Official Reports 

Appellate Court

Barrett v. FA Group, LLC, 2017 IL App (1st) 170168

Appellate Court 

Caption

RHONDA BARRETT, Plaintiff-Appellant, v. FA GROUP, LLC, an 

Illinois Limited Liability Company; RED PEPPER’S LOUNGE, 

INC., an Illinois Corporation; WHALE FISH AND CHICKEN, INC., 

an Illinois Corporation; WHALE BEEF AND PIZZA, INC., an

Illinois Corporation; 87TH FISH CORPORATION, an Illinois 

Corporation; and WHALES FISH AND CHICKEN II, INC., an 

Illinois Corporation, Defendants (FA Group, LLC, an Illinois Limited 

Liability Company; and 87th Fish Corporation, an Illinois 

Corporation, Defendants-Appellees).

District & No. First District, Fourth Division

Docket No. 1-17-0168

Filed November 2, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 15-M1-301591; 

the Hon. Patricia O’Brien Sheahan, Judge, presiding.

Judgment Reversed.

Counsel on

Appeal

John P. Kolb and Courtney Anderson, of Disparti Law Group, P.A., of 

Chicago, for appellant.

Steve Grossi, of Bruce Farrel Dorn & Associates, of Chicago, for 

appellees.
- 2 - 

Panel JUSTICE GORDON delivered the judgment of the court, with 

opinion.

Justices McBride and Ellis concurred in the judgment and opinion.

 OPINION 

¶ 1 Plaintiff Rhonda Barrett was injured when she stepped in a parking lot pothole and fell. 

The parking lot was allegedly owned by defendants FA Group, LLC, and 87th Fish 

Corporation. Plaintiff filed suit against defendants, alleging that they had negligently 

maintained the parking lot and failed to warn of a dangerous condition. Defendants filed a 

motion for summary judgment, arguing that the size of the pothole was considered 

de minimis and was not actionable as a matter of law. The trial court granted summary 

judgment in defendants’ favor, and plaintiff now appeals. For the reasons that follow, we 

reverse. 

¶ 2 BACKGROUND 

¶ 3 On July 1, 2015, plaintiff filed a complaint against a number of businesses, including 

defendants,1 alleging that plaintiff was injured on October 28, 2013, when she “stepped in a 

pot hole and fell” in a Chicago parking lot due to defendants’ negligence.

¶ 4 On September 17, 2015, FA Group, LLC (FA Group) and 87th Fish Corporation (87th 

Fish) filed a joint answer to plaintiff’s complaint. The answer admits that 87th Fish owned 

and operated the parking lot but denies all other allegations as they relate to either FA Group 

or 87th Fish. Defendants also raised the affirmative defense that plaintiff did not exercise 

ordinary care for her own safety and, therefore, was contributorily negligent. 

¶ 5 The parties engaged in discovery beginning on December 4, 2015, when the trial court 

ordered the parties to conduct their discovery with adequate time such that they would 

complete all discovery and scheduled depositions by March 18, 2016. On June 28, 2016, 

plaintiff filed a motion to reopen and extend discovery, claiming that defendants never 

produced their representative for deposition by the end of the discovery period; plaintiff did 

not explain the three-month delay in filing her motion to reopen discovery. Attached to the 

motion was a March 10, 2016, notice of deposition to defendants that had scheduled a 

deposition of “persons most knowledgeable of the condition of the subject parking lot” for 

March 18, 2016. On July 18, 2016, the trial court denied plaintiff’s motion for reopening and 

extending discovery for the purpose of deposing defendants’ representative. The trial court’s 

order did not explain the basis for its denial. 

¶ 6 On August 11, 2016, defendants filed a motion for summary judgment. The motion 

claimed that defects under two inches in height are considered de minimis and are not 

actionable and that defendants were entitled to summary judgment based on uncontroverted 

 

1On December 15, 2015, the trial court granted plaintiff’s motion to voluntarily dismiss defendant 

Whales Fish and Chicken II without prejudice. On January 5, 2016, the trial court entered default 

judgments against defendants Red Pepper’s Lounge, Whale Fish and Chicken, and Whale Beef and 

Pizza. Only FA Group, LLC, and 87th Fish Corporation are parties to the instant appeal. 
- 3 - 

evidence that the depression plaintiff alleges she tripped on had a height difference no greater 

than half an inch. 

¶ 7 Defendants attached plaintiff’s discovery deposition to their motion for summary 

judgment. In her deposition, plaintiff testified that she fell at approximately 10 p.m. on the 

night of October 28, 2013, while walking to her vehicle in defendants’ parking lot after 

leaving the Red Pepper Lounge. Plaintiff had parked her vehicle in the parking lot; at the 

time she parked in the lot, there were “a significant amount” of vehicles in the parking lot. 

¶ 8 Plaintiff was shown a Google Maps street view image of a parking lot that plaintiff 

confirmed was an accurate portrayal of the size and layout of the parking lot in which she 

fell.2 The Google Maps image was also attached to the motion for summary judgment3 and 

appears to portray a small parking lot that was located between two businesses: the Red 

Pepper Lounge, on the left side of the lot, and Whale Fish Shrimp & Chicken (Whale Fish), 

on the right side of the lot. The left side of the lot appears to have approximately 10 to 12 

angled parking spots along the length of the lot, taking up approximately one third of the 

width of the lot. The right side of the lot appears to have no designated parking spaces, 

although the image shows a vehicle parked alongside the Whale Fish restaurant. There is a 

dumpster in the back right corner of the lot, behind the Whale Fish building, with a vehicle 

parked in front of the dumpster, behind the building; only the front of the vehicle is visible in 

the image. 

¶ 9 Plaintiff was asked to mark an “X” on the Google Maps image of the parking lot to 

approximately identify where the depression that allegedly caused her fall was located. The 

plaintiff marked an “X” surrounded by a circle approximately halfway down the length of the 

lot. The “X” is located on the right side of the lot, approximately one third of the lot’s width 

away from Whale Fish. 

¶ 10 Plaintiff also identified an exhibit that portrayed “[t]he sign for the first five spots for 

Whales Fish customers.”4 She testified that this sign was located on the wall on the left side 

of the Google Maps image—on the wall belonging to the Red Pepper Lounge, near the front 

of the lot. She testified that she interpreted the sign as referring to the five angled parking 

spots closest to the sign. 

¶ 11 Plaintiff testified that, at the time she fell, the parking lot was “fairly dark.” There were 

vehicles parked in the parking lot, including in the spots closest to the Red Pepper Lounge, 

but she was unable to estimate how full the lot was because “[t]he parking lot was dark.” 

When asked whether there were any artificial sources of light, she testified that “[t]here may 

have been one dim light” near the sign reserving parking spaces for Whale Fish customers. 

Plaintiff testified that people were also parking their vehicles at the back of the lot parallel to 

the buildings, in the same direction that the vehicle in the Google Maps image was parked 

alongside the Whale Fish building. Plaintiff parked her vehicle in the same way, near the 

 

2The image was from October 2015, and plaintiff testified that “this parking lot looks like it’s been 

done now” but testified that the layout and size of the parking lot remained the same as it had been at the 

time of her fall. 

3The images attached to the motion for summary judgment are poor quality copies. However, the 

parties supplemented the record on appeal with better-quality versions of those images. 

4This exhibit was not attached to the motion for summary judgment and is not included in the 

record on appeal. 
- 4 - 

back right corner where the dumpster was located in the Google Maps image, parking in 

front of a different vehicle and blocking that vehicle; plaintiff spoke to that vehicle’s driver, 

who was still in the vehicle at the time, and agreed to move her vehicle out of the way when 

the other woman wished to leave. 

¶ 12 Plaintiff testified that she had been in the Red Pepper Lounge with friends for 

approximately an hour when she was asked to move her vehicle by the owner of the vehicle 

plaintiff had blocked in. Plaintiff left the Red Pepper Lounge to move her vehicle and began 

walking toward her vehicle when “I must have stepped down into the hole. *** [T]he heel of 

my shoe went down into the broken asphalt—the pothole, and it wedged between there. The 

front of my foot was still in my shoe, and it jolted me forward. I tried to break my fall. The 

concrete literally ate [my] knee and my face. I saw a white light, and everything went black.” 

¶ 13 Plaintiff testified that she was not using her phone while she was walking to her vehicle 

and that, immediately prior to her fall, she was “looking around the parking lot to see if there 

were any suspicious characters, and—I mean, I paid attention to my surroundings.” When 

asked whether she was looking down at the time of her fall, she testified that “I’m looking 

around. I know I looked down at one point when I was walking towards my car. Ladies 

watch their step when they’re walking.” She testified that she had not walked across the 

parking lot when entering the Red Pepper Lounge. Instead, when she exited her vehicle, she 

walked to the sidewalk, which she followed around Whale Fish and to the Red Pepper 

Lounge. However, when she exited the Red Pepper Lounge to move her vehicle, she walked 

across the parking lot. 

¶ 14 Plaintiff testified that there was a height difference between the surface of the parking lot 

and the area where she fell, testifying that “[i]t was a pothole.” Plaintiff was unable to 

estimate “precisely” how much of a height difference was present, testifying only that “I 

stepped into it.” She testified that there was “some broken up asphalt or there was some 

ground under the asphalt. The heel of my shoe went down into it” and became stuck inside 

the ground, causing her to jolt forward and fall; the shoe remained stuck inside the hole after 

the fall until a friend pulled it out. She placed her hands out to brace her fall, and the corner 

of her phone hit her eye when she fell. 

¶ 15 Plaintiff testified that the fall knocked her unconscious and that she injured her right knee 

and right eye in the process. After returning to consciousness, she needed help to stand up 

and move to her vehicle, had cuts and bruising on her face, and had broken blood vessels in 

her eye. She testified that she spent several hours in the hospital, had headaches for a week, 

had blurry vision for a few weeks, was unable to work for a month, and had trouble both 

walking and performing normal activities for a period of six months while her knee was 

healing. 

¶ 16 Plaintiff was presented with two photographs of the parking lot that were taken on her 

behalf on the day after her fall,5 which she testified accurately depicted the condition of the 

 

5One photograph was attached to the motion for summary judgment, while the other was attached 

to plaintiff’s response to the motion for summary judgment. These photographs were purportedly 

reproduced in the supplemental record on appeal. However, we note that one of the photographs 

appears to have originally been in a landscape page orientation but was reproduced in a portrait page 

orientation, resulting in the reproduced image cutting off the sides of the original image, along with the 

exhibit sticker. The pothole which is at issue on appeal appears in both the original and reproduced 
- 5 - 

parking lot at the time of her fall. She marked the location of her fall on one of the 

photographs, testifying that “I don’t know if it was asphalt or broken ground underneath the 

broken asphalt, but the heel of my shoe went down in there.” The images appear to have been 

taken from the back of the parking lot, facing the front, so the pothole appears on the left side 

of the images and the angled parking spots appear on the right side. Both images show two 

depressions in the surface of the parking lot, located in close proximity to each other. The 

bigger of the two is a sizable depression, possibly up to a few feet in length; the depression is 

an irregular shape but is longer than it is wide. The smaller of the two appears to be 

approximately a third to half the size of the bigger depression and appears to be equally long 

and wide. There does not appear to be any loose debris inside either depression, but it is 

impossible to tell with any certainty. The photographs do not contain any markings as to 

scale, so it is impossible to determine how deep the depressions are. However, there is a 

sufficient difference between the surface of the parking lot and the depth of the depressions 

such that there is a dark band of shadow delineating the border of the depressions. 

¶ 17 Also attached to the motion for summary judgment was the August 1, 2016, affidavit of 

Mohammed Nofal, the owner of both defendants FA Group and 87th Fish. In the affidavit, 

Nofal averred that on October 28, 2013, 87th Fish operated Whale Fish and owned the 

adjacent parking lot. Nofal averred that he “routinely visited” the premises during October 

2013, and that the Google Maps image showed the Whale Fish and the adjacent parking lot. 

Nofal averred that the only marked parking spots in the parking lot appeared on the left side 

of the image, along the Red Pepper Lounge, and “[a]side from these marked angle parking 

spots, there are no other marked parking spots where parking was permitted in the lot on 

October 28, 2013.” Nofal also averred that the depression in the parking lot that plaintiff had 

marked6

during her deposition “did not have a height difference of greater than 0.5 inches

between the depression and surrounding area in the parking lot on or around October 28, 

2013.”

¶ 18 On September 6, 2016, plaintiff filed an emergency motion for discovery pursuant to 

Illinois Supreme Court Rule 191(b) (eff. Jan. 4, 2013), requesting that the trial court allow 

plaintiff to take Nofal’s deposition. The motion claimed that plaintiff had set a deposition of 

defendants’ representatives with the most knowledge of the subject parking lot on the date of 

the subject occurrence for March 18, 2016. On March 10, 2016, defendants’ counsel advised 

plaintiff’s counsel that he would not be producing his clients for the deposition on March 18 

due to a previously-scheduled deposition in Wisconsin. Discovery closed on March 18, 2016, 

 

images. Both photographs in the supplemental record contain no markings, despite plaintiff being 

asked to mark one of the photographs during her deposition; the images attached to the motion for 

summary judgment and response are of such poor quality that it is impossible to determine whether 

they contain plaintiff’s markings. However, a better-quality copy (though still of poor quality) of the 

exhibit plaintiff was asked to mark is also attached to a motion filed by plaintiff. In that image, a faint 

“X” can be observed on the larger of the two depressions depicted in the image, near the far end of the 

depression. 

6Again, the image of the depression attached to the motion for summary judgment is of such poor 

quality that no markings, if there are any present, can be observed, and the better-quality image 

provided in the supplemental record on appeal does not contain any markings. However, in the copy of 

the image located elsewhere in the record, a faint “X” can be observed on the larger of the two 

depressions depicted in the image, near the far end of the depression. 
- 6 - 

and on July 18, 2016, the trial court denied plaintiff’s motion to reopen and extend discovery 

for the purpose of deposing defendants’ representatives. However, defendants attached to 

their motion for summary judgment the affidavit of Nofal, who “has never been disclosed, 

nor was his produced for deposition.” The motion claimed that plaintiff was unable to oppose 

summary judgment because material information was in control of persons unwilling to give 

affidavits by reason of hostility. 

¶ 19 On September 9, 2016, the trial court granted plaintiff’s motion in part, granting plaintiff 

leave to take Nofal’s deposition. However, the court order provided that plaintiff would be 

required to pay for Nofal’s time at the rate of $250 per hour. The order continued the motion 

to September 15, 2016, “in order to set the deposition date and amend the briefing schedule.” 

On September 15, 2016, the trial court entered an order that “Plaintiff’s motion is denied” 

and vacated the September 9, 2016, order.7

¶ 20 On October 1, 2016, plaintiff filed a response to defendants’ motion for summary 

judgment, claiming that the determination that a defect is de minimis does not follow a 

specified mathematical formula, as argued by defendants. She also claimed that there were 

aggravating factors at the time of the incident that should bar the application of the 

de minimis doctrine, including darkness, presence of vehicles, and broken pavement left 

sitting inside the depression. As a result, plaintiff argued that summary judgment was 

precluded by material issues of fact. 

¶ 21 Plaintiff attached an affidavit to her response, averring that she tripped and fell in 

defendants’ parking lot at 10 p.m. on October 28, 2013, on a pothole with a height difference 

“large enough for [her] two-inch heel to get wedged in between,” and that she tripped on 

broken pavement rather than a deviation in height. She further averred that it was “very 

dark,” there was only “one dim light,” and she could not observe the pothole.

¶ 22 On November 17, 2016, the trial court granted defendants’ motion for summary 

judgment. The trial court based its decision on the “de minimis doctrine”: that injuries caused 

by defects with a height difference of less than two inches are not actionable in the absence 

of aggravating factors. It concluded that plaintiff had failed to show the presence of 

aggravating factors sufficient to bar the application of the de minimis doctrine. Finally, it 

found that “[t]o the extent plaintiff’s affidavit conflicts with her testimony, the court will not 

consider such contrary evidence.” However, it found that plaintiff’s affidavit did not contain 

facts that would overcome application of the de minimis doctrine, noting that “[a]t most, 

plaintiff speculates that she tripped over broken pavement in a pothole without presenting 

evidence that this was the case.”

¶ 23 On December 26, 2016, pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 

2010), the trial court found that there was no just reason for delaying either enforcement or 

appeal of the November 17, 2016, order granting summary judgment to defendants. Plaintiff 

filed a notice of appeal, and this appeal follows. 

¶ 24 ANALYSIS 

¶ 25 On appeal, plaintiff argues that the trial court erred in granting summary judgment in 

defendants’ favor because there was a genuine issue of material fact as to whether defendants 

 

7We note that the judge that entered these two discovery orders was not the judge that presided over 

the motion for summary judgment. 
- 7 - 

breached a duty to plaintiff to keep the parking lot safe. A trial court is permitted to grant 

summary judgment only “if the pleadings, depositions, and admissions on file, together with 

the affidavits, if any, show that there is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 

2014). The trial court must view these documents and exhibits in the light most favorable to 

the nonmoving party. Home Insurance Co. v. Cincinnati Insurance Co., 213 Ill. 2d 307, 315 

(2004). We review a trial court’s decision to grant a motion for summary judgment de novo.

Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). De novo

consideration means we perform the same analysis that a trial judge would perform. Khan v. 

BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). 

¶ 26 “Summary judgment is a drastic measure and should only be granted if the movant’s right 

to judgment is clear and free from doubt.” Outboard Marine Corp., 154 Ill. 2d at 102. 

However, “[m]ere speculation, conjecture, or guess is insufficient to withstand summary 

judgment.” Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999). The party 

moving for summary judgment bears the initial burden of proof. Nedzvekas v. Fung, 374 Ill. 

App. 3d 618, 624 (2007). The movant may meet his burden of proof either by affirmatively 

showing that some element of the case must be resolved in his favor or by establishing “ ‘that 

there is an absence of evidence to support the nonmoving party’s case.’ ” Nedzvekas, 374 Ill. 

App. 3d at 624 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). “ ‘The purpose 

of summary judgment is not to try an issue of fact but *** to determine whether a triable 

issue of fact exists.’ ” Schrager v. North Community Bank, 328 Ill. App. 3d 696, 708 (2002) 

(quoting Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001)). We may affirm on any basis 

appearing in the record, whether or not the trial court relied on that basis or its reasoning was 

correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992). 

¶ 27 “To succeed in an action for negligence, the plaintiff must establish that the defendant 

owed a duty to the plaintiff, that defendant breached that duty, and that the breach 

proximately caused injury to the plaintiff.” Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 

112948, ¶ 22. “The existence of a duty under a particular set of circumstances is a question of 

law for the court to decide.” Choate, 2012 IL 112948, ¶ 22. In determining whether a duty 

exists, we 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.” Simpkins v. CSX Transportation, Inc., 

2012 IL 110662, ¶ 18. 

¶ 28 “The duty of an owner or occupier of any premises toward invitees is that of reasonable 

care under the circumstances regarding the state of the premises or acts done or omitted on 

them, and he must maintain the premises in a reasonably safe condition.” St. Martin v. First 

Hospitality Group, Inc., 2014 IL App (2d) 130505, ¶ 11 (citing Ward v. K Mart Corp., 136 Ill. 

2d 132, 141 (1990)); see also Choate, 2012 IL 112948, ¶ 24 (“an owner or occupier of land 

*** owes a duty of reasonable care under the circumstances to all entrants upon the premises 

except to trespassers”). In the case at bar, defendants do not claim a lack of duty to keep the 

parking lot in a reasonably safe condition. Instead, defendants claim that the pothole that led 

to plaintiff’s injury was a de minimis defect and their duty of care did not extend to repairing 

such a defect. 

¶ 29 “If a defect is such that a reasonably prudent person would not anticipate some danger to 

persons walking upon it, it is considered de minimis and is not actionable.” Morris v. 
- 8 - 

Ingersoll Cutting Tool Co., 2013 IL App (2d) 120760, ¶ 12. As the Second District has 

explained, the “de minimis rule” originated in cases involving municipalities, “where it was 

noted that ‘[m]unicipalities do not have a duty to keep all sidewalks in perfect condition at all 

times.’ ” St. Martin, 2014 IL App (2d) 130505, ¶ 13 (quoting Gillock v. City of Springfield, 

268 Ill. App. 3d 455, 457 (1994)). “Thus, although a municipality has a duty to keep its 

property in a reasonably safe condition, it has no duty to repair de minimis defects in its 

sidewalks.” St. Martin, 2014 IL App (2d) 130505, ¶ 13. “This rule stems largely from the 

recognition that placing such a duty on a municipality would create an intolerable economic 

burden. [Citations.] Quite simply, a municipality does not have a duty to keep a sidewalk in 

perfect condition at all times.” Putman v. Village of Bensenville, 337 Ill. App. 3d 197, 202 

(2003). This rule has subsequently been extended to apply to private owners and possessors 

of land in addition to municipalities. See, e.g., St. Martin, 2014 IL App (2d) 130505, ¶ 13; 

Morris, 2013 IL App (2d) 120760, ¶ 12; Hartung v. Maple Investment & Development Corp., 

243 Ill. App. 3d 811, 815 (1993). 

¶ 30 Our supreme court has noted that “[w]hile courts are in marked disagreements as to when 

the sidewalk irregularity or defect is so slight that the question is one of law, and where it is 

one of fact for the jury, nevertheless, the decisions recognize that no mathematical standard 

can be adopted in fixing the line of demarcation, and that each case must be determined upon 

its own particular facts and circumstances.” Arvidson v. City of Elmhurst, 11 Ill. 2d 601, 604 

(1957). Despite this admonition, however, Illinois courts have found that “liability generally 

attaches for sidewalk defects approaching two inches in height.” Morris, 2013 IL App (2d) 

120760, ¶ 13 (citing Birck v. City of Quincy, 241 Ill. App. 3d 119, 121 (1993)). “The 

de minimis rule generally precludes negligence claims on lesser defects, absent aggravating 

circumstances.” Morris, 2013 IL App (2d) 120760, ¶ 13.

¶ 31 In the case at bar, defendants argue, and the trial court found, that Nofal’s affidavit 

established the depth of the pothole as half an inch and that there were no aggravating 

circumstances preventing the application of the de minimis rule, thereby entitling defendants 

to summary judgment. However, we cannot agree with this conclusion. 

¶ 32 As an initial matter, defendants repeatedly refer to Nofal’s affidavit, which contained his 

estimate that the depth of the pothole was half an inch, as “uncontradicted”; the trial court 

also found that “[i]t is undisputed that the depth of the defect located in [the] parking lot was 

less than 0.5 inch.” “When facts are established by affidavit and are uncontradicted by 

opposing affidavit, those facts are taken as true and are admitted for the purpose of summary 

judgment.” Harris v. Village of Fithian, 48 Ill. App. 3d 1019, 1021 (1977). However, our 

examination of the record shows that Nofal’s estimate of the depth of the pothole as half an 

inch was not “uncontradicted” or “undisputed.” Plaintiff attached her own affidavit to her 

response to defendant’s motion for summary judgment, in which she averred that “[t]he 

subject pothole had a height difference that was large enough for [her] two-inch heel to get 

wedged in between.” Thus, while plaintiff did not provide an exact measurement of the depth 

of the pothole—which would have been inappropriate, as she testified in her deposition that 

she did not know the pothole’s exact depth—plaintiff did challenge Nofal’s half-inch 

estimate. We also note that Nofal’s affidavit does not explain how he determined the depth of 

the pothole; his affidavit was dated three years after the incident, the parking lot had since 

been repaved, and he merely states his conclusion that the depression in the parking lot “did 

not have a height difference of greater than 0.5 inches between the depression and 
- 9 - 

surrounding area in the parking lot on or around October 28, 2013.” Affidavits in summary 

judgment proceedings “must consist of facts admissible in evidence as opposed to 

conclusions.” Woolums v. Huss, 323 Ill. App. 3d 628, 636 (2001); see Ill. S. Ct. R. 191(a) 

(eff. Jan. 4, 2013). The affidavit had no basis under the law and should not have been 

considered. See Hudson v. City of Chicago, 378 Ill. App. 3d 373, 400 (2007) (“An expert’s 

opinion is only as valid as the reasons for the opinion.”). Accordingly, we do not take Nofal’s 

half-inch estimate as an official measure of the depth of the pothole. It is, however, clear that 

the height difference was less than two inches, as plaintiff does not claim that the pothole 

was deeper than the two-inch heel of her shoe. Thus, we may safely say that the depth of the 

pothole was somewhere between half an inch and two inches, which would still fall within 

the purview of the de minimis rule, absent any aggravating circumstances. 

¶ 33 However, examining the circumstances of the present case, we cannot say that the defect 

was so minor as to be considered de minimis as a matter of law. First, it is important to 

understand plaintiff’s allegations as to the actual cause of her fall. Plaintiff does not argue 

that the height difference between the interior of the pothole and the surface of the parking 

lot caused her to trip and fall, and does not appear to have ever made such an argument, 

despite defendants’ focus on the issue of the depth of the pothole. Instead, plaintiff argues 

that she stepped in the pothole and her shoe became stuck in either broken pavement or 

broken asphalt within the pothole, which caused her to jolt forward and fall. This version of 

events appears in both plaintiff’s deposition testimony and in her affidavit filed in response to 

the motion for summary judgment.8

Thus, plaintiff’s fall is dissimilar to the cases in which 

the de minimis rule has been applied, which almost uniformly involve the plaintiff tripping as 

a result of a height deviation. Since this is not that type of situation, those cases are of limited 

usefulness. Defendants have cited no cases applying the de minimis rule to a situation in 

which the defect in the pavement has left exposed loose debris such that an individual’s shoe 

could become embedded in the debris and cause him to her to fall. The closest such case we 

have discovered in our research is West v. City of Hoopeston, 146 Ill. App. 3d 538, 541 

(1986), in which the trial court properly denied a directed verdict in a case involving a 

quarter-inch height difference in two sidewalk slabs where the area was “broken, probably 

from weathering and age” and the space between the slabs contained “a lot of loose, 

pebble-like particles lying inside the gap between the slabs.” There, the appellate court found 

that “the defect in level was slight; however, the broken area between the slabs was 

sufficiently wide that a reasonable man could anticipate danger to persons walking upon it.” 

West, 146 Ill. App. 3d at 543. 

¶ 34 Furthermore, despite defendants’ arguments to the contrary, we find the surrounding 

circumstances to be relevant to the determination of whether the defect was de minimis. In 

Arvidson, the case that first set forth the de minimis rule, our supreme court considered the 

circumstances surrounding the plaintiff’s fall, such as the fact that the defective sidewalk was 

near the curb of a business street, near stores and parking meters, so that it was reasonably 

foreseeable that the area would be traversed by pedestrians. Arvidson, 11 Ill. 2d at 609. The 

supreme court also considered the particular way that the plaintiff’s injury occurred, in that 

she stepped with her heel on the higher slab and her sole on the lower slab, and determined 

 

8

Plaintiff is not as specific in her complaint, alleging that she “stepped in a pot hole and fell.” 

However, these allegations are not inconsistent with the more specific claims she later made. 
- 10 - 

that this was also reasonably foreseeable. Arvidson, 11 Ill. 2d at 609. Similarly, the supreme 

court in Warner v. City of Chicago, 72 Ill. 2d 100, 104 (1978), cautioned that the 

determination of whether defects were minor was a factual inquiry specific to each case, 

noting that “[a]n unacceptable height variation in one location, such as a busy commercial 

area where pedestrians must be constantly alert to avoid bumping into one another, may be 

nonactionable in another area, such as a residential one.”

¶ 35 In the case at bar, plaintiff’s injury occurred at night, in an area with dim lighting, on 

asphalt and not on a concrete sidewalk. The asphalt parking lot had a comparatively large 

area of depression and, although the depth was between half an inch and two inches, the 

depressed area contained broken pieces of asphalt within the depression. As noted, it was 

dark with a dim light, and we have found such lighting conditions alone to be sufficient to 

withstand a motion for summary judgment in the past. See Alqadhi v. Standard Parking, Inc., 

405 Ill. App. 3d 14, 19 (2010). Furthermore, the pothole as depicted in the photographs is not 

small, appearing to be up to several feet long and wide, and is located in an area of the 

parking lot in which there are no designated parking spaces, making it more likely for a 

pedestrian to encounter it, especially when walking across a crowded parking lot. “[T]he 

width and depth of the allegedly defective area should be considered in determining whether 

that area is of a minor, nonactionable nature.” West, 146 Ill. App. 3d at 542. If, as plaintiff 

alleges, the pothole contained broken asphalt or pavement such that a shoe could become 

lodged inside the pothole, such a circumstance would be relevant to the determination of 

whether the defect was actionable. See West, 146 Ill. App. 3d at 543 (“A broken, cracked 

sidewalk may be defective.”). Defendants point to Morris, in which the Second District 

found a defect in a loading bay to be de minimis where the alleged defect comprised less than 

4% of the length of the loading bay. However, the Second District expressly noted that its 

mathematical calculations “should not be viewed as an attempt to formulate a bright-line 

rule.” Morris, 2013 IL App (2d) 120760, ¶ 22 n.2. Instead, the calculation was “for the 

purpose of concretizing an abstract discussion and providing a readily comprehensible 

illustration.” Morris, 2013 IL App (2d) 120760, ¶ 22 n.2. Moreover, the area of the defect 

was merely one factor in the court’s reasoning. By contrast, in the case at bar, the other 

circumstances suggest that the defect in the instant case presents a question of fact as to 

whether defendants owed plaintiff and other parking lot users a duty to repair it. 

¶ 36 We are similarly unpersuaded by defendants’ suggestion that plaintiff should have used 

the sidewalk. First, we are not asked to determine what plaintiff should or should not have 

done at this stage of the proceedings—the purpose of summary judgment “ ‘is not to try an 

issue of fact but *** to determine whether a triable issue of fact exists.’ ” Schrager, 328 Ill. 

App. 3d at 708 (quoting Luu, 323 Ill. App. 3d at 952). Additionally, the Google Maps image 

of the lot shows that there are no sidewalks running alongside the length of the parking lot 

and leading to the Red Pepper Lounge or Whale Fish. Indeed, when plaintiff testified in her 

deposition that she used the sidewalk to walk along the street, around Whale Fish, and back 

to the Red Pepper Lounge, this testimony led to additional questioning as to why she took 

such an out-of-the-way route, with her counsel remarking that “[i]t seemed weird to me.” The 

question to be asked in determining whether a duty exists is whether it was reasonably 

foreseeable that such an injury would occur. See Simpkins, 2012 IL 110662, ¶ 18 (in 

determining whether a duty exists, a court should consider “(1) the reasonable foreseeability 

of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding 
- 11 - 

against the injury, and (4) the consequences of placing that burden on the defendant”). Here, 

we cannot say, as a matter of law, that it was not reasonably foreseeable that an individual 

parking his or her vehicle in the parking lot would choose to walk across the lot instead of 

using an out-of-the-way sidewalk. 

¶ 37 Under the de minimis rule, a jury question on the issue of negligence “is presented only 

when the defect in the sidewalk is such that a reasonably prudent man should anticipate some 

danger to persons walking upon it.” Arvidson, 11 Ill. 2d at 605. In the case at bar, under the 

circumstances presented in the instant case and taking the facts in the light most favorable to 

plaintiff as the nonmovant, we cannot say that the defect present in defendants’ parking lot 

was de minimis as a matter of law. Instead, there is a question of fact concerning the size and 

depth of the pothole itself, as well as to whether defendants owed a duty to plaintiff and other 

users of the parking lot to repair the pothole. Accordingly, summary judgment should not 

have been granted. 

¶ 38 Since we have determined that the trial court erred in granting the motion for summary 

judgment, we have no need to determine whether the trial court erred in denying plaintiff 

leave to depose Nofal prior to responding to the motion for summary judgment. 

¶ 39 CONCLUSION 

¶ 40 For the reasons set forth above, we cannot say that the pothole located on defendants’ 

parking lot represented a de minimis defect such that it is not actionable as a matter of law. 

Accordingly, summary judgment should not have been granted in defendants’ favor.

¶ 41 Reversed.