No. 2--02--0722			 

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

ALBERT P. PUTMAN and ARDELLE J.	)	Appeal from the Circuit

PUTMAN,						)	Court of Du Page County.

							)

	Plaintiffs-Appellants,		)

							)

v.							)	No. 98--L--680

							)

THE VILLAGE OF BENSENVILLE, EAGLE	)	

CONCRETE CONTRACTORS, INC., and	)	

JAMES J. BENES AND ASSOCIATES, 	)	Honorable

INC.							)	John T. Elsner and	

		)	James W. Jerz,

	Defendants-Appellees.		)	Judges, Presiding.

	JUSTICE GROMETER delivered the opinion of the court:

	Plaintiffs, Albert P. Putman and Ardelle J. Putman, instituted

an action in the circuit court of Du Page County following a fall

that rendered Albert a quadriplegic.  Plaintiffs named as

defendants, among others, the Village of Bensenville (Bensenville

or the Village), Eagle Concrete Contractors, Inc. (Eagle), and

James J. Benes & Associates, Inc. (Benes).  Eagle was a

subcontractor hired on a road improvement project in Bensenville,

and Benes was the engineering firm hired by the vVillage for the

project.  A number of other defendants settled or were granted

summary judgment and are not parties to this appeal.  Defendants

moved for summary judgment.  The trial court granted defendants'

motions, and plaintiffs now appeal.  For the reasons that follow,

we affirm in part, reverse in part, and remand the cause.

I. BACKGROUND

	On November 9, 1995, Albert was to attend a meeting at the

Veterans of Foreign Wars (VFW) building in Bensenville.  The

meeting was to commence at 8 p.m.  He arrived about 7:30 and parked

in a lot across the street.  As he approached the intersection to

cross the street, he noted that the pedestrian crosswalk and

traffic signals were working,, but the overhead lighting at the

intersection was not.  Albert stated that the intersection was dark

and shadowy.  Albert pressed the pedestrian signal button and

waited until the walk signal came on before crossing the

intersection.   When he was about halfway across the intersection,

the signal changed to "don't walk."  Albert related that he

increased his pace "a trifle," but "didn't hurry that much." 

Albert acknowledged that he was familiar with the intersection due

to the number of times he had previously traversed it, which he

estimated at approximately 30.  Albert stated that the signal

appeared to be quicker than usual on the night of the accident.  In

fact, the signal had been damaged about three weeks earlier, and a

temporary controller had been installed.  This controller would

give a pedestrian the walk signal for between 3 and 8 seconds and

then allow an additional 15 seconds to cross the intersection.

	On the VFW side of the intersection, Bensenville had installed

a ramp to make the sidewalk handicapped accessible.  The ramp

consisted of a sloped portion of the sidewalk that came down to

meet the road.  There was a gutter at the base of the ramp.  As

Albert was leaving the roadway, he tripped on the front edge of the

ramp where it adjoined the gutter.  He fell forward and struck his head on a concrete parking block.  As a result, he was paralyzed

from the neck down.  The record in this case is voluminous, and

additional facts will be discussed as they pertain to the issues

raised by plaintiffs.

	Before proceeding to the merits of this appeal, we note that

both Benes and Eagle have filed motions to strike portions of

plaintiffs' brief.  We ordered these motions taken with the case. 

The whole of Eagle's motion and a portion of Benes's are based on

plaintiffs' failure to cite authority in support of some of their

arguments, in contravention of Supreme Court Rule 341(e)(7)

(Official Reports Advance Sheet No. 21 (October 17, 2001), R.

341(e)(7) (eff. October 1, 2001)).  It is well established that

points not supported by authority may be deemed waived.  Groenings v. City of St. Charles, 215 Ill. App. 3d 295, 306 (1991).  However, this principle is "an admonition to the parties and not a

limitation upon the power of a reviewing court to address issues of

law as the case may require."  Mayfield v. ACME Barrel Co., 258 Ill. App. 3d 32, 37 (1994).  Hence, we deny these motions and will

apply the doctrine as we see fit in addressing the merits of this

appeal.  Benes also requests that a portion of plaintiffs' brief be

stricken because it pertains to an order not mentioned in

plaintiffs' notice of appeal (see 155 Ill. 2d R. 303(b)(2)). 

However, plaintiffs have voluntarily withdrawn this issue,

rendering that portion of Benes's motion moot.

	We also note that, except for Benes, all parties at times, and

plaintiffs persistently, fail to comply with Supreme Court Rules 6

and 341(d) (145 Ill. 2d R. 6; Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(d) (eff. October 1, 2001)).  These rules

mandate that "c]itations of cases must be by title, to the page of

the volume where the case begins, and to the pages upon which the pertinent matter appears in at least one of the reporters cited."  (Emphasis added.)  145 Ill. 2d R. 6.  The failure to abide by these

rules is also sufficient to result in the waiver of an argument. 

See Chicago Title & Trust Co. v. Weiss, 238 Ill. App. 3d 921, 927- 28 (1992).  We advise all appellate counsel to pay close attention

to these rules in the future.

II. ANALYSIS

	The trial court granted summary judgment in favor of all three

defendants.  As the issues pertaining to the separate defendants

are discrete, we will address them separately.  Because this cause

comes to us following a grant of summary judgment, review is de novo.  Corona v. Malm, 315 Ill. App. 3d 692, 694 (2000).  Summary judgment is appropriate only where no genuine issues of material

fact exist and the movant is entitled to judgment as a matter of

law.  Stewart v. Jones, 318 Ill. App. 3d 552, 557-58 (2001).  The record must be construed liberally in favor of the party opposing

the motion.  Largosa v. Ford Motor Co., 303 Ill. App. 3d 751, 753 (1999).  We will now turn to the merits of this appeal.

A. Bensenville

	Among the grounds relied on by the trial court in granting

Bensenville's motion for summary judgment was that any defect in

the ramp was de minimis and thus could not support liability on the Village's behalf.  As we find this issue dispositive, we need not

address the alternate bases articulated by the trial court in support of its decision.  The rule that a village has no duty to repair de minimis defects in its sidewalks is well established in this state.  See Gillock v. City of Springfield, 268 Ill. App. 3d 455, 457 (1994); Hartung v. Maple Investment & Development Corp., 243 Ill. App. 3d 811, 815 (1993); Birck v. City of Quincy, 241 Ill. App. 3d 119, 121, 124-25 (1993); Arvidson v. City of Elmhurst, 11 Ill. 2d 601, 604 (1957); Walter v. City of Rockford, 332 Ill. App. 243, 246, 251 (1947).  This rule stems largely from the recognition

that placing such a duty on a municipality would create an

intolerable economic burden.  See Gillock, 268 Ill. App. 3d at 457- 58 ("The economic burden would be too great to require

municipalities to repair every slight defect existing in the miles

of sidewalk they maintain"); Birck, 241 Ill. App. 3d at 123.  Quite simply, a municipality does not have a duty to keep a sidewalk in

perfect condition at all times.  Hartung, 243 Ill. App. 3d at 814.  Because the existence of a duty is a question of law, it is an

issue that properly can be resolved in a motion for summary

judgment.  Ralls v. Village of Glendale Heights, 233 Ill. App. 3d 147, 154 (1992); see also Bledsoe v. Dredge, 288 Ill. App. 3d 1021, 1023 (1997) (holding that the de minimis rule renders minor defects in a sidewalk not actionable as a matter of law). 

	In the instant case, the evidence, viewed in the light most

favorable to plaintiffs, shows that there was a one-inch lip

between the ramp and the gutter.  Plaintiffs' expert, Paul Box,

produced a diagram showing this change in elevation.  The upper

half of the inch reflected the distance where the ramp sloped

downward, and only the lower half was perpendicular to the gutter.  Defendants produced testimony indicating that the lip was smaller;

however, as this appeal involves a summary judgment, we must accept

the testimony of plaintiffs' expert.  We also note that Albert

estimated the distance from the lowest point in the gutter to the

ramp at two to three inches.  This measurement is not relevant, as

Albert asserts that he tripped on the front edge of the ramp. 

Moreover, it is not surprising that, to allow for drainage, the

lowest point of the gutter was somewhat lower than the ramp.

	Thus, for the purpose of resolving this issue, we will assume

that a one-inch lip existed at the front edge of the ramp. 

Numerous cases have held that such defects fall within the de minimis rule.  See, e.g., Birck, 241 Ill. App. 3d at 121 (defect of 1 7/8 inches); Warner v. City of Chicago, 72 Ill. 2d 100, 104 (1978) ("Turning to the facts in the case before us, we believe

that the city's evidence, a 1 1/8-inch-maximum height variation,

would indicate that, in view of the surrounding circumstances, no

cause of action would lie due to the minimal nature of the

defect"); Walter, 332 Ill. App. at 246 (one-inch defect).  In fact, the Fourth District has noted that, generally, the point at which

liability attaches in such cases is when the defect approaches two

inches.  Birck, 241 Ill. App. 3d at 122.  The evidence, viewed in plaintiffs' favor, indicates a defect of one inch.  Such a defect

lies within the ambit of the de minimis rule and is not actionable.

	Plaintiffs do not seriously attempt to argue that the one-inch

defect would not fall within the de minimis rule.  Instead, they attempt to argue that the rule has no application to the case at

bar.  To this end, they advance two arguments.  First, they argue that the ramp was a special, statutorily mandated handicapped ramp,

rather than a portion of the ordinary sidewalk.  Second, they

contend that certain regulations that state how such ramps should

be constructed should control this action and trump the de minimis rule.  We find both arguments unpersuasive.

	First, we attach no significance to the fact that Albert

tripped on the ramp rather than on some other portion of the

sidewalk.  Plaintiffs attempt to distinguish the ramp from the

balance of the sidewalk by pointing out that the design of such

ramps is set forth in detail in certain administrative regulations. 

See 71 Ill. Adm. Code §400.31 (`99`199`1) (incorporating standard 4.7 of

the American National Standards Institute (ANSI)).  However, other

portions of a sidewalk are also governed by exacting standards. 

See, e.g., Illinois Department of Transportation, Standard Specifications for Road and Bridge Construction §424.01 et seq.  (1997).  Thus, the fact that the ramps are heavily regulated

provides no basis for distinguishing them from the rest of the

sidewalk.

	More fundamentally, adopting the position advocated by

plaintiffs would lead to an absurdity.  A sidewalk ramp is,

obviously, intended to provide access to a sidewalk.  Thus, the

same individuals who traverse the ramp also use the sidewalk.  If

we were to exclude ramps from the de minimis rule, an individual who tripped on a defect in the ramp would have a cause of action

while one who tripped on a defect in the very next slab after

leaving the ramp would not.  The ramp is, in fact, part of the

sidewalk.  No reason is apparent to apply a heightened standard of care to ramps when users of the ramp will encounter similar

defects, which are nonactionable, on the rest of the sidewalk. 

Accordingly, we reject plaintiffs' contention that the mere fact

that the accident occurred on a ramp makes the de minimis rule inapplicable.

	Plaintiffs also argue that they should be allowed to proceed

with this action because the ramp did not comply with the relevant

provisions of the Illinois Accessibility Code (Code) (see 71 Ill. Adm.

Code §400.110 et seq. (1991)).  Initially, we note that the Code provides that it is to be enforced by the Attorney General and does

not expressly create a private cause of action.  71 Ill. Adm. Code

§400.140 (1991).  Plaintiffs do not suggest that a private cause of

action can be implied under the Code.  See, e.g., Rodgers v. St. Mary's Hospital of Decatur, 149 Ill. 2d 302, 308 (1992).  They do, however, assert that the Code establishes the standard of care to

which Bensenville should be held.

	A statute or regulation may establish the standard of care in

certain circumstances.  Powell v. Village of Mt. Zion, 88 Ill. App. 3d 406, 409 (1980); Kronenberger v. Husky, 38 Ill. 2d 376, 377 (1967).  This principle is particularly applicable where the

statute or regulation is designed for the protection of human life. 

Millburn Mutual Insurance Co. of Lake Villa v. Glaze, 86 Ill. App. 3d 1055, 1064 (1980).  However, we need not decide whether the Code

establishes the standard of care in the present case because we

conclude that, even if it does, it does so subject to the de minimis rule.

	Section 288A of the Restatement (Second) of Torts provides, in

pertinent part, "An excused violation of a legislative enactment or

an administrative regulation is not negligence."  Restatement

(Second) of Torts §288A(1) (1965).  The section goes on to

enumerate a nonexclusive list of circumstances under which a

violation would be excused.  Restatement (Second) of Torts §288A(2)

(1965).  The comments to section 288A further explain that

"[w]here, as in the case of the rules of the highway, the

legislation is adopted in a field where the common law has already

recognized a number of excuses for conduct which would otherwise be

negligent, such excuses may continue to be recognized when the

court adopts the statute as a standard."  Restatement (Second) of

Torts §288A, Comment d, at 35 (1965).  While there are not numerous excuses applicable in cases like the present, the de minimis rule has been well recognized in this state for an extended period of

time.  Birck, 241 Ill. App. 3d at 121; Walter v. City of Rockford, 332 Ill. App. 243 at 246, City of Chicago v. Norton, 116 Ill. App. 570 (1904).  Given that the rule is so well established, we conclude that, even if the

regulations upon which plaintiffs rely establish the standard of

care, they do not abrogate the de minimis rule.

	Plaintiffs point out that, in addition to the defect in the

ramp, overhead lighting at the intersection was not functioning and

the pedestrian crossing signal was, as Albert described, "faster"

than usual on the night of the accident.  Regarding the lighting,

there is no duty to illuminate a defect that is not otherwise

actionable.  Swett v. Village of Algonquin, 169 Ill. App. 3d 78, 89 (1988).  A contrary rule would require a municipality to install lighting over every nonactionable defect in a sidewalk,

substantially undercutting the purpose of the de minimis rule.  

	Regarding the crossing signal, Albert acknowledged that it had

always been fast, that there was no traffic in the area, and that,

after the signal changed, he increased his pace "a trifle" or "very

minimally."  It has been observed that a defect that is not

otherwise actionable may be actionable if the surrounding

circumstances warrant.  For example, in Baker v. City of Granite City, 75 Ill. App. 3d 157, 160 (1979), the court held that, "[w]hile a defect of this magnitude may not be actionable in [a]

residential area, a jury could reasonably determine that such a

defect or condition located in a busy commercial district should

result in a finding of negligence."  In a "busy commercial

district," it is reasonable to infer that a pedestrian could be

sufficiently distracted to overlook an otherwise de minimis defect.  We do not believe that the quicker walk signal was a distraction of

sufficient magnitude to bring this case within the exception to the

de minimis rule alluded to in Baker.  Moreover, we question whether the quicker walk signal was causally related to Albert's injury, as

plaintiffs point to nothing to suggest that a properly operating

signal would allow a pedestrian to clear the intersection

completely before it switched back to "don't walk."

	Two final points need to be addressed.  First, plaintiffs

allege, without citation to authority, that the defendants were

contractually obligated to make the transition between the curb and

the gutter flush.  They do not explain why plaintiffs, who are not

parties to any of the contracts relating to the construction of the ramp, are entitled to benefit from this obligation.  This argument

is thus waived.  Groenings, 215 Ill. App. 3d at 306.  Plaintiffs also suggest that the contract demonstrates that the Village

voluntarily undertook certain responsibilities regarding the

sidewalk (see Kavales v. City of Berwyn, 305 Ill. App. 3d 536, 545- 46 (1999)); however, given the de minimis nature of the defect at issue, there is no basis to conclude that it did not fulfill any

responsibilities it assumed.  They further posit a duty on the part

of the Village to supervise the construction of and to maintain the

ramp.  However, as we have determined that the ramp contained no

actionable defect, even if such duties existed, they could not have

been breached as a matter of law.

	Accordingly, we hold that, in accordance with the de minimis rule, Bensenville had no duty to remedy the minor defect in the

ramp.  We affirm the decision of the trial court granting summary

judgment to the Village.

B. Eagle

	Plaintiffs next contend that the trial court erred in granting

summary judgment in favor of Eagle.  Plaintiffs contend that an

issue of fact exists as to whether Eagle constructed the ramp in

accordance with applicable plans and specifications.  Eagle makes

two responses.  First, it asserts that there is no evidence in the

record to establish that the defect in the ramp existed at the time

it completed the ramp.  Second, it argues that it, like the

Village, is entitled to the benefit of the de minimis rule.  We disagree with both contentions; thus, we reverse the order of the

trial court granting summary judgment to Eagle.

	In Hunt v. Blasius, 74 Ill. 2d 203, 208-09 (1978), our supreme court held that an independent contractor may be held liable for

its work pursuant to traditional negligence principles.  See also

Polak v. Person, 232 Ill. App. 3d 505, 515 (1992).  Two rules modify this principle.  First, "[a]n independent contractor owes no

duty to third persons to judge the plans, specifications or

instructions which he has merely contracted to follow."  Hunt, 74 Ill. 2d at 209.  Thus, "[i]f the contractor carefully carries out

the specifications provided him, he is justified in relying upon

the adequacy of the specifications."  Hunt, 74 Ill. 2d at 209.  Second, such reliance is not justified where the plans "are so

obviously dangerous that no competent contractor would follow

them."  Hunt, 74 Ill. 2d at 209.  Hence, unless the plans in question are obviously dangerous, an independent contractor cannot

be held liable for merely following them.  In the instant case,

plaintiffs do not argue that the plans and specifications for the

ramp were obviously dangerous; instead, they contend that Eagle did

not follow them.

	Eagle contends that no issue of material fact exists as to

whether it complied with the plans.  In support of this position,

Eagle points to the testimony of several witnesses who inspected

the ramp around the time Eagle completed its work.  Contrary

evidence exists in the record.  Robert Tarosky, an engineer

retained by plaintiffs as an expert witness, averred that the ramp

had a lip in excess of one-quarter of an inch and that this defect

violated the applicable standard that applied to the construction of the ramp.  Hence, we are presented with a conflict in the

evidence, making summary judgment inappropriate.

	Eagle counters that Tarosky's testimony has no probative value

whatsoever regarding whether Eagle complied with the plans and

specifications because Tarosky did not examine the ramp until about

nine years after Eagle completed its work.  Eagle relies on Clauson v. Lake Forest Improvement Trust, 1 Ill. App. 3d 1041 (1971), and the trial court accepted this argument.  We find Clauson distinguishable.  In Clauson, the court held that it was error to allow expert testimony regarding the slope of an alley where there

was no evidence that the condition of the alley had not changed in

the 30 months between the plaintiff's injury and the expert's

inspection of the alley.  Clauson, 1 Ill. App. 3d at 1045.  In the instant case, evidence exists that supports an inference that the

ramp was in the same condition at the time of Albert's injury and

Tarosky's examination.  Specifically, Tarosky averred that he

examined photographs of the ramp taken shortly after the accident

and found it to be in "pristine" condition.  More to the point,

Tarosky also averred that "[t]here is no evidence of upheaval, tree

roots, cracks, sinking, deterioration, or other changes or

movements of the concrete ramp and gutter area where plaintiff

tripped.  It is in substantially the same condition as when it was

constructed."  Thus, the evidence lacking in Clauson is present here.

	Eagle also contends that the de minimis rule, discussed in the previous section, applies to it as well as the Village.  We

disagree.  As noted above, the de minimis rule finds its basis in the reality that the economic burden would be too great if

municipalities were required to maintain their sidewalks in perfect

condition.  See Gillock, 268 Ill. App. 3d at 457-58 ("The economic burden would be too great to require municipalities to repair every

slight defect existing in the miles of sidewalk they maintain"). 

A finding of liability under the facts of the present case would

subject Eagle to no such burden.  Eagle is not a municipality and

does not maintain the sidewalks of Bensenville on an ongoing basis. 

If Eagle complied with the plans and specifications for the ramp,

no further duty would exist on Eagle's behalf.  Hunt, 74 Ill. 2d at 209.  There is a significant difference between building a sidewalk

in the first place and maintaining it ever after.  We decline to

equate Eagle's duty to build the sidewalk with that of a

municipality to maintain one.  Accordingly, we hold that Eagle is

not entitled to the benefit of the de minimis rule.

	Therefore, we reverse the decision of the circuit court

granting Eagle's motion for summary judgment.

C. Benes

	Regarding Benes, the trial court granted summary judgment on

the basis of the following provision in the contract under which

Benes agreed to provide inspection services for the project:

	"Notwithstanding anything to the contrary which may be

contained in this Agreement or any other material incorporated

herein by reference, or in any agreement between PUBLIC AGENCY

and any other party concerning this project, the ENGINEER

shall not have control or be in charge of and shall not be

responsible for the means, methods, techniques, sequences or procedures or construction *** nor shall ENGINEER be

responsible for the acts or omissions of PUBLIC AGENCY

provided that the ENGINEER has properly executed his duties. 

ENGINEER shall not be responsible for the failure of the

PUBLIC AGENCY, any architect, engineer, consultant, contractor

or subcontractor  to carry out their respective

responsibilities in accordance with the project documents or

any other agreement concerning the project."

The trial court found that the duty of Benes regarding the project

was set forth in the contract, and, thus, the above-cited provision

limited Benes's liability.

	In their opening brief, plaintiffs assert that Benes owed them

a duty, pursuant to the contract, to supervise and inspect the

project.  Plaintiffs provide no citations to authority whatsoever

in this argument and, in particular, fail to cite authority

regarding why they are entitled to benefit from Benes's contractual

obligation.  Therefore, this argument is waived.  Groenings, 215 Ill. App. 3d at 306.  Moreover, even if we were not to deem it

waived, we would find it unpersuasive.  Parenthetically, we note

that plaintiffs do not address whether Benes could disclaim

liability for its own negligence (see, e.g., First Financial Insurance Co. v. Purolator Security, Inc., 69 Ill. App. 3d 413, 417-18 (1979)); rather, they limit their argument to whether Benes

has effectively done so.  We will similarly limit our discussion of

this issue.

	It is true that a defendant may be charged with negligence for

failing to perform an act required by a contract.  Perkaus v. Chicago Catholic High School Athletic League, 140 Ill. App. 3d 127, 134 (1986).  The question of whether a duty exists in such cases is

determined by the terms of the contract, and the duty, if any, will

not extend beyond that described in the contract.  Perkaus, 140 Ill. App. 3d at 134.  Even though such actions lie in tort, the

scope of the duty is defined by the contract.  Ferentchak v. Village of Frankfort, 105 Ill. 2d 474, 482 (1985); Bolsmo v. Mark V Roofing Co., 190 Ill. App. 3d 334, 337 (1989).  In the instant case, the contract upon which plaintiffs seek to base a duty

clearly limits Benes's liability for the failure of a

"subcontractor to carry out their respective responsibilities in

accordance with the project documents or any other agreement

concerning the project."

	Plaintiffs attempt to avoid the effect of this disclaimer by

distinguishing between the acts of Benes and those of Eagle. 

Plaintiffs assert that their action against Benes is not based on

Eagle's failure to comply with the plans for the ramp.  Instead,

they claim that their action is based on Benes's own failure to

properly inspect the ramp.  We find this argument completely

unpersuasive.

	In interpreting a contract, it is axiomatic that the primary

goal is to give effect to the intent of the parties.  Omnitrus Merging Corp. v. Illinois Tool Works, Inc., 256 Ill. App. 3d 31, 34 (1993).  Moreover, meaning and effect must be given to each portion

of a contract if possible, for the parties presumably intended each

portion to serve some purpose.  Taber v. Taber, 248 Ill. App. 3d 435, 438 (1993).  Limiting the disclaimer in the manner suggested by the plaintiffs would effectively write it out of the contract. 

Virtually every error in construction by a subcontractor could be

recast and advanced against Benes as a failure to supervise or

inspect the project.  We cannot find that the parties intended such

a result.  Accordingly, we hold that the disclaimer set forth above

is effective to relieve Benes of liability on the present issue. 

The trial court properly granted summary judgment in favor of

Benes. 

III. CONCLUSION

	In light of the foregoing, we affirm the decision of the

circuit court of Du Page County granting summary judgment to

Bensenville and Benes.  We reverse the grant of summary judgment to

Eagle and remand this portion of the cause for further proceedings.

	Affirmed in part and reversed in part; cause remanded.

	BYRNE and CALLUM, JJ., concur.