## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Morris v. Ingersoll

Cut ting Tool Co. , 2013 IL App (2d) 120760

Appellate Court Caption DENNI S R. MORRI S and DOROTHY J

. MORR I S
, PlaintiffsAppellants, v. I

NGERSOL L CUTTI

NG TOOL COMPANY an d D.I

. PROP ERTI ES, I

NC., Defe ndant-Appe llees.

District & N o. Second District Docke t No. 2-12-0760

Filed September 16, 2013

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n an action for the injury plaintiff suffe red when he tripped and fell in a loading bay at defe ndants ’ b u s i ness while making a delivery
, the trial
court proper ly enter ed summary judgme nt f or def endants on the g round that the 11⁄2-inch defe ct in the surfa ce in the are a wher e plaintiff fell was de minimis and not actionable in the absenc e of a ny ag g rava ting f actor s that would be suff

icient to neg ate the de minimis rule.

Dec ision Under
Review Appea l from the Circuit Court of Winnebag o County
, No. 10-L -423; the Hon. Eug ene G . Doher

ty , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l L ouis F. Pignate lli and Eliz abeth Uhrich, both of Pignate lli & Associates, P.C., of Rock Falls, for a

ppellants.

Wil liam W. R anar d, J ulie A. Teusc her, a nd L ea A nn C. Fra casso, a ll of Cassiday Schade L L P, of Chicag o, for a ppellees.

Panel J USTI CE BI RKETT deliver ed the judg ment of the c ourt, with opinion. Presiding J ustice Bur

ke and J ustice McL are n concur red in the judgme nt and opinion.

OP INION

¶ 1 Plaintiffs, Dennis Morris (Morris) and Dorothy Morris
, a p peal from the trial court’s grant of summary judgme nt to defe ndants, Ing ersoll Cutti ng Tool C o

. (Inge rsoll) and D.I

. Properties, Inc. (D.I .). Plaintiffs broug ht a neg ligen ce suit ag ainst defe ndants afte r Morris tripped and fell on defe ndants’ proper ty

. Plaintiffs alleg ed that defe ndants failed to maintain the premises i n a rea sonably safe condition. In g ranting defe ndants’ motion for summary judgme nt, the trial court held that the defe ct on which plaintiff tripped, measuring 11⁄2 inches high, was de minimis and thus not actionable

. Plaintiffs appea l, arguing that the de minimis rule should not be applied g iven the over all siz e of the defe ct and the applicability of other
ag g ravating f

actor s. We disagr ee a

nd aff irm the judg ment of the trial c ourt.

¶ 2 I . BA CKGROUND ¶ 3 On J une 29, 2009, Morris, i n his capa city as a truck d ri v er fo r C o n -wa y Fr eig ht (Conway ), stopped at the premises owned by D.I

. and lease d by Ing ersoll to rec eive g oods, as he had done three o r fo u r t i m es previously

. Morris backe d his truck to the loading bay and beg an to dis em b ar k from the vehicle, fac ing the inside of his vehicle, in acc ordanc e with Con-way policy

. After rea ching the g round, while still fac ing the trailer, Morris stepped back with his rig ht foot in order to shut the trailer door. His foot caught on a differ ence in elevation in the g round, which he estimated to be 11⁄2 inches, causing him to fall and sustain injury . Morris was a

war e of the cra ck prior to June 29, 2009, and had informed defe ndants of it. ¶ 4 Rick Davis testified in a deposition that h e wa s t h e fa cilities manag er of def endants’ premises. When asked whether the defe ct was located wher e a truck driver would be stepping out of his truck, Davis stated t hat i t was dependent on the l eng th of t he trailer and how far a particular trailer was backe d into the l oading bay

. Davis had taken classes covering tri p

and-f all preve ntion wher e he lear ned that a o n e- i n ch differ ence in elevation was a roug h

-2-g uideline for a trip hazard. He conducte d wee kly inspections for hazards on the premises, but

there wer e no written proce dures for thes e i n s p ections or for his job duties. There wer e approximately

350 employ ees at the fac ility

. ¶ 5 On October 25, 201 1
, p laintiffs’ expert, Gar y Hutter, visited the site with Morris and

measure d the def

ect. Plaintiffs submitted an af fidavit from Hutter

stating:
“The defe ct on which Mr. Mor ris tripped on June 30, 2009[ ,] i s as follows: the aspha lt and portions of the curb and associate d curb g utter in the are a of the fall had cra cked in

sever al direc tions a

nd throug h a combination of subsidence and er osion, and prese nted

an approximately : 1) 2.5 foot long, 1 foot wide, and 1.5 inches deep d ep re s s i on in the asphalt; and 2) the associate d curb and gutter section had an adjac ent approximately one foot long , 6 inch [ sic ], and 0.75 inch deep de pression.” Plaintiffs also submitt ed Morris’s own affidavit stating that the defe ct desc ribed by Hutter was the de fec t on which he trippe d. ¶ 6 Def

endants moved for summary judgme nt, which the trial court g rante d on the basis that the defect in question was de minimis and therefor e not actionable

. T h e trial court refused
to consider the measure ments of the defe ct beyond the 11⁄2-inch height discrepa ncy , as Morris’s depositi o n t es t i m ony did not indicate that any thing beyond the heig ht led him to trip. The court also noted that Hutter’s testimony “conc erning what the defe ct looks like now is dubious when descr ibing a condition which he himself sug g ests takes p l ace over time. Plaintiff did not descr ibe such a depre ssion, just a chang e i n elevation” (empha ses in orig inal).

¶ 7 I I . ANALYSI S ¶ 8 On appeal, pl aintiffs arg ue that the t rial court err ed in deter mining that th e d efect over which Morris tripped was de min i mi s , there by fore closing their neg lige nce claim. Additionally
, plaintiffs argue that the prese nce of ag g ravating fac tors remove s the case from the de mi n i mi s rule and that the trial court err ed in ignor ing or reje cting the ag g ravating fac tors. Ultimately
, plaintiffs contend that the trial court err ed in g ranting summary judgme nt in favor of

defe ndants. ¶ 9 Plaintiffs argue that a g enuine issue of materia l fac t exis ts as to whether the defe ct in the asphalt in the are a adjac ent to defe ndants’ loading bay was de minimis and there fore the trial
court e rre d in gr anting defe ndants’ motion for summary judgme nt. “ Summary judgme nt is

a p p r o p ria te wher e the pleading s, depositions, admissions, and aff idavits o n f

il e , wh e n v ie w e d in the l i gh t most favor able to the nonmoving party , show that there is no g enuine issue of materia l f act and that the moving party is e ntitled to judgme nt a s a matter of law.” Perez v. Sunbelt Rentals, Inc.
, 2012 I L App (2d) 110382, ¶ 7. We revie w de novo a g rant of summary judgme nt. Shannon v. Boise Cascade Corp. , 208 I ll. 2d 517, 524 (2004). ¶ 10 We now turn to plaintiffs’ claim of neg lige nce. To state a cause of action for neg lige nce,

a plaintiff must alleg e fac ts establishing a duty of car e owed by the defe ndant to the plaintiff, a bre ach of that duty , and an injury proxi mately

cause d by

that brea ch. Marshall v. Burger King Corp.
, 222 I ll. 2d 422, 430 (2006). “A duty is an obligation imposed by l aw wh i ch require s one to confor

m to a cer tain standard of conduct for the protec tion of another ag ainst

-3-an unrea sonable risk.” Hartung v. Maple Inve stment & Dev elopment Corp.
, 243 I ll. App. 3d 811, 813 (1993). Wheth er t he defe ndant owes a duty to the plaintiff and the scope of that duty are questions of law. Glass v. City of Chicago
, 323 I ll. App. 3d 158, 165 (2001). In deter mining whether a duty exis ts and the scope of that duty
, we consider the fore seea bility of injury
, the likelihood of injury
, the mag nitude of the burden of g uarding ag ainst the injury
, and the conseque nces of placin g that burden on the defe ndant. Simpkins v. CSX Transport ation, Inc. , 2012 I L110662, ¶ 18. ¶ 11 Her e, there i s no question that defe ndants, the owner an d lessee of the premises, owed Morris a d u t y to keep the premises in a rea sonably safe condition. See Choate v. Indiana Harbor Belt R.R. Co.
, 2012 I L 112948, ¶ 24 (“a n owner or occupie r of land *** owes a duty of rea sonable car e under the circ umstances to al l en t rants upon the premises except to trespasse rs”) ; Hartung
, 243 I ll. App. 3d at 816 (an owner or occupie r’s duty is of rea sonable

car e under the circ umstances and is to maintain the premises in a rea sonably safe condition). The question, howeve r, i s whether the s cope of defe ndants’ duty included re p ai ri n g a 11⁄2- inch cra ck located in the loading bay wher e Morris’s s em i t ra iler was parke d. Ty pically
, courts have applied a de minimis analy sis to outdoor surfa ce defe cts located on sidewalks or parkw ay s. Her e, the tria l court found that the de minimis rule applied. Thus, we determine whether the de minimis rule a

pplies here to the defe ct locate d in defe ndants’ loading bay

. ¶ 12 I f a defe ct is such that a rea sonably prudent person would not anticipate some dang er to persons walking upon it, i t is considered de minimis and is not actionable . See Arvidson v. C i t y of Elmhurst
, 11 I ll. 2d 601, 605 (1957). The de minimis rule rec og nizes that minor defe cts are outside the scope of a landowner ’s duty to maintain the proper ty in a rea sonably safe condit ion, for the purposes for which the proper ty is intended. See Hartung
, 243 I ll. App. 3d at 814 (“[t] he de minimis rule *** is r ooted in the scope of municipalities’ duty to maintain their proper

ty in a rea sonabl y safe condition”). The rule has been extended to private landowner s and rec og nizes that requiring that sidewalks be kept fre e of minor defe cts would be unduly burdensome and impractica l ( id. at 817) and could be intolerably expensive ( Putman v. Village of Bensenv ille
, 337 I ll. App. 3d 197, 202 (2003))

. There is no mathematica l formula or brig ht-line rule as to what constitutes a slight defe ct, and eac h case must be determined on its own fa cts. Hartung , 243 I ll. App. 3d at 814. ¶ 13 Howeve r, as the Four th District has noted, liability g ener al l y at t ac h es fo r sidewa lk defe cts approa ching two inches in heig ht. Birck v. City of Quincy
, 241 I ll. App. 3d 119, 121, 124-25 (1993) (1 f -inch eleva tion betwee n two co n cr ete slabs not actionable ). The de minimis rule g enerally prec ludes neg lige nce claims on lesser defe cts, absent ag g ravating circ umstances. See, e.g. , Hartung
, 243 I ll. App. 3d at 816-17 (apply ing the de minimis rule
to three -quar

ter-inc h sidewalk defe ct near a shopping cente r as it did not cre ate a rea sonably fore seea ble risk of harm, noting the burden on the shopping cente r and the extreme I llinois

weather conditions). Certainly here
, a 11⁄2-inch defe ct, located in an are a not intended for and with littl e pedestria

n traff ic, is a minor defe ct, falling within the ambit of the de minimis rule. Howeve r, as there is no mathematica l formula in applying the de minimis rule ( Hartung
, 243 I ll. App. 3d at 814), we consider the scope of defe ndants’ duty with respe ct t o t he fore seea bility of injury
, the likelihood o f i n j ury , the magnitude of the burden of g uarding
ag ainst the injury
, an d the conseque nces of placing that burden on defe ndants. Simpkins
,

-4-2012 I L110662, ¶ 18.

¶ 14 De fe n dants’ duty of car e toward Morris was not to maintain their premises i n p er fe ct condition, but to avoid creating a n unrea sonable risk of harm to Morris. S ee Hartung , 243 I ll. App. 3d at 816 (a landowner’ s duty is “to avoid cre ating an unreasonable risk of harm
to an i n v i tee” (empha sis in orig inal)). We do not conclude that the 11⁄2-inch defe ct here

cre ated an unrea sonable risk of harm to Mor ris. His injury

was not r easona

bly fore seea

ble,

as it oc curr ed in a

n industrial a

rea used specific ally for larg e semitrailers to be loaded with
g oods. Fo r t h e same rea son, the likelihood of injury was minor, as the are a was not for pedestria n use, but was trave rsed by larg e, heavy trucks car rying hea v y loads. We also consider the burden of g uarding ag ainst the injury and the conseque nces o f placing that burden on defe ndants. Plaintiffs argue t h at t h e cost to defe ndants in repa iring a 11⁄2-inch defe ct would be slight. Howeve r, requiring defe ndants to repa ir eve ry 11⁄2-inch defe ct in the loading bay are a would cre ate an economic burden simil ar to that of the shopping cente r in Hartung

. Id. at 816-1 7

. W e ac k nowledg e that the total are a of sidewalks surrounding the shopping cente r in Hartung may have been g reater than the total are a of the loading bay here
, thus prese nting a g reater immediate economic burden. Howeve r, in ref using to apply the de minimis rule, we would be placing a heavy economic burden on defe ndants over time. T he loading bay here is far more susceptible to defe cts than t h e shopping mall sidewalks in Hartung
, as it is traff

icked by larg e trucks with heavy loads. Fur ther, plaintiffs fail to support their contention that the cost of repa ir would be minor. Even viewing the rec ord in the light
most favor able to plaintiffs, as t h e t ri al court noted, defe ndants’ fac ility is staffe d by 350 employ ees and has a separ ate entra nce for the public. This does not support an infere nce that the fac ility is small or that repa iring the asphalt would not be burdensome to defe ndants,
espec ially over a number of year s. ¶ 15 Fur

thermore
, as the are a in question is not used as a pedestria n are a like a sidewalk, it is helpful to compar e the are a to a parkw ay

. When applied to parkw ay s, the de minimis rule has allowed for heig ht variations t h at might be unacc eptable in a sidewalk. E.g.
, Barnhisel v. Village of Oak Park
, 311 I ll. App. 3d 108, 115 (1999) (21⁄2-inch heig ht differ ential betwee n sidewalk and parkw ay causing plaintiff to f all was not unr easona

bly dang erous)

. Whil e we acknow ledg e that courts h av e ap p lied this dichotomy only in the context of the L ocal Gover nmental and Gover

nmental Employ ees Tort Immunity Act (745 I L CS 10/1-101 et seq. (West 2012) ; Mazin v. Chicago W hite Sox, Ltd.
, 358 I ll. App. 3d 856, 861 (2005))
, we find the log ic behind the pa

rkwa y /sidewalk distinction useful here

. ¶ 16 Courts have noted that nonsidewalk are as, such as parkw ay s, are held to a lesser standard, in part due to the chang ing c onditions inhere nt in a landscaped area

. See, e.g. , Marshall v. City of Centralia
, 143 I ll. 2d 1, 10-11 (1991) (“pa rkwa y s are composed of sod and ear th and

are there fore more susceptible to weather damag e cause d by rain and snow”). Her e, the wea r and tear on a loading bay trave rsed by these vehicles is more akin to the chang ing conditions of a parkw ay than to the light p ed es t ri an use of a sidewalk. See id. at 10 (discussing the limit ed pedestria

n uses of parkw ay s: acc essing a vehicle, retri eving mail, rea ching a neig hbor’s house, boarding a bus, allowing pedestria n traff ic to pass, completing y ard work). Fur thermore , just as a par

kway has a f ar more l imited pedestria n use than a

sidewalk, he re the loading bay is ex p l i ci t l y fo r vehicular use, in an industrial environment. J ust as a

-5-pedestria n cannot expect sidewalk conditions on a parkw ay , neither can he expect sidewalk conditions in a loading bay used for larg e semitrailers. See id. (“[p]edestrians who leave the sidewalk c annot assume that pa rkwa y s are fre e of de fec ts or undulations as they otherwise could when trave l i ng on the sidewalk” ). Even so, it is not clea r that the defe ct in question here would be actionable even if it wer e located on a sidewalk. See, e.g. , Birck
, 241 I ll. App. 3d at 124-25 (holdinga 1 f -inch sidewa lk defe ct to be de minimis ). ¶ 17 Applying the de minimis rule to the 11⁄2-inch defe ct h er e i s co n s i s t en t wi t h t h e justifications behind the rule. We hold that, without more, the 11⁄2-inch cra ck in defe ndants’
proper ty was de minimis

. ¶ 18 P l ai n t i ffs further argue that, even if the defe ct would be considere d de minimis
, t h e ag g ravating fac tors of its dimensions and its location, specific ally
, in an are a of ingr ess and
eg ress wher e Morris would be distracted, remove the defe ct from such classifica tion. Courts have found that the de minimis rule does not apply under cer tain ag g ravating circ umstances such as the location of the defe ct ( e.g. , Bake r v. City of Granite City
, 75 I ll. App. 3d 157, 160 (1 9 7 9 ) (noting that an actionable defec t 4 inches wide and 13⁄4 to 2 inches deep l ocate d on

a busy commerc ial sidewalk might not be actionable if it wer e located in a residential are a))
, its width (see
, e.g. , Repinski v. Jubilee Oil Co.
, 85 I ll. App. 3d 15, 20-21 (1980) (consider ing the 11⁄2-foot diameter of a sidewalk defe ct 11⁄2 inches deep) ; W est v. City of Hoopeston
, 146 I ll. App. 3d 538, 542-43 (1986) (considering the two-inch width of a s i d ewa lk defe ct a quarte r of an inch deep) ), or a policy of repa iring such defe cts ( Martinkovic v. City of

Aurora
, 150 I ll. App. 3d 589, 594 (1986) (re moving defe ct from de minimis analy sis wher e defe ndant had an e x press policy

of re pairingdefe cts over one inch)). ¶ 19 Plaintiffs f

irst a rgue that, eve n if the heig ht of the defe ct alone is de minimis
, the width and brea dth of the “depr ession in the asphalt and the associate d curb and gutter section” must be considered. Although in Morris’s deposition testimony he re fer red to catc hing the back of his heel in “the cra ck,” which he estimated to be betwe en 1 an d 11⁄2 inches high, his aff idavit stated that the defe ct on which he tripped “is the same defe ct descr ibed in the repor t of Ga ry Hutter.” ¶ 20 Def

endants argue t h at we should not consider these dimensions of the defe ct, bec ause Hutter’s aff

idavit violates I llinois Supreme Court Rule 191 (ef f. J an. 4, 2013) and should not have been considere d by the trial court. Plaintiffs argue that defe ndants have raised this
argument for the first time on appea l and thus we should not consider it. We ag ree with plaintiffs, as a party may not attack the sufficie ncy of an aff idavit for the first time on appea l. Kolakowski v. Voris
, 83 I ll. 2d 388, 398 (1980). Fur thermore
, defe ndants fail to specify the

rea sons why the re port violates Rule 191, and de fenda nts themselves ref

ere nced the repor

t in their motion for summary judgme nt, s u ch t h at they are estopped from chang ing their position on appea l. See In re Marriage of Schneide r , 214 I ll. 2d 152, 172-73 (2005) (a party is not allowed to adopt and benef it from one position in the trial court and then expediently chang e its position i n the appe llate cour t). ¶ 21 Def

endants also arg

ue that the other dimensions did not cause Morris’s fall and thus w e should not consider them. Howe ver, in viewing the evidenc e in the light most favor able to plaintiffs, we a cce pt the dimensions adopted in Morris’s af fidavit, as describing the def ect

-6-that cause d his fall. Thus, we consider whether the added dimensions of 21⁄2 fee t in leng th and

1 foot in width are a g g ravating f actor s that remove the defe ct from the de minimis rule. ¶ 22 Whil e a 21⁄2-foot by 1-foot defe ct in a sidewalk may be a sufficie nt ag g ravating fac tor, the question here is whether those dimen s i o n s are ag g ravating fac tors in defe ndants’ loading bay. This defe ct on a side wa lk, which aver ag es 5 fee t in width (I llinois Depa rtment of Transpor ta ti o n , B u r e a u of Design & Environment Manual, ch. 58.106 (2010))
, would be over 40% of the sidewalk’s width. The chanc es that a pedestria n would encounte r the defe ct, and thus the fore seea

bility and likelihoo d o f i n j u ry , would be incre ased by those added dimensions. I n contra st, those dimensions here
, in relation to the total leng th of the loading bay
, have littl e eff

ect on fore seea

bility

. The photogr aphs in the rec ord show the loading bay
to be at l ea s t the leng th of a semitrailer. As the maxi mum leng th of a trac tor-semitrailer combination permitted in I llinois is 65 fee t from front to rea r axle (625 I L CS 5/15-107 (West 2012)), we assume the loading bay to be at least that leng th, if not actua lly longe r. Be cause 1 21⁄2 fee t of the total 65 fee t is less than 4% of the leng th of the loading bay
, the chanc es that the defe ct will be encounte red are low, and far less than if the d ef ec t we re l o cate d on a sidewalk. Thus, the fore seea bility and likelihood of injury are also low. Be cause the defe ct is but a small cra ck in the entire loading bay are a, its added dimensions do not prec lude application of the de minimis rule. We acknow ledg e that plainti ffs are conce rned with an 2

are a of the loading bay that is smaller than the full leng th of the loadingbay . Howeve r, we addre ss below Morris’s argument with respe ct to ingr ess and egress to his vehicle, that is, the smaller ar ea of

the loadingbay

wher e a dr iver mig ht expect to encounter the def ect. ¶ 23 P l aint iffs further argue that, beca use the defe ct is in an are a of ingr ess and egre s s t o Morris’s truck, Morris had no choice but to encounte r it, and, beca use he would be distracted
upon encounte ring the defe ct, the de minimis rule does not a pply

. In support, plaintiffs cite Harris v. Old Kent Bank, 315 I ll. App. 3d 894 (2000). ¶ 24 I n Harris
, the plaint i ff t ri p p ed o n a o n e- i n ch d efect on the sidewalk leadingto defe ndant’s bank. Id. at 895-96. The plaintiff had exit ed the building and was walking toward her car , which was parke d in the parking space near est to the bank. Id. at 895. The sidewalk consisted of a short portion leading from that parking space to the bank and a longe r portion running para llel to the leng th of the bank and adjac ent to the other pa rking space s for bank

Under our st and ar d of re view, we ar e to view the eviden ce in the li ght m ost fa vorabl e to the 1

nonmov ing par ty. Per ez , 201 2 I L App (2d ) 1103 82, ¶ 7 . I n keepi ng with th is st and ar d, we ass um e tha t the loa din g bay is at le ast the le ngth of the lon gest per m is si ble tr act or-sem it ra il er combina ti on. T he m eas ure m ent fr om fr ont to re ar axl e act ual ly re sul ts in a sho rt er dis ta nce tha n the m eas ure m ent fr om the nos e of the tr act or to the ta il of the semitr ai le r, and so pro bab ly somewhat unde rs ta te s the le ngth of th e l oad ing bay, whi ch a ccr ues to pl ai nti ff s’ (t he n onmov ing par ti es’ ) f avor.

Our cal cul at ion of the per cen ta ge o f the si dewa lk or l o a d ing bay occ upi ed by a def ect of 2 the giv en dimensi ons is for the purpos e of con cr et izing an abs tr act dis cus si on and pro vidin g a re adi ly compreh ens i b l e il lus tr at ion

. I t sho uld not be viewed as an at te m pt to for m

ula te a bri ght- li ne rul e. Rat her
, it is to dis ti nguish th e de fe ct her e, u si ng a con cr et e exa m ple
, fr om the si dewa lk cas es tha t have he ld def

ect s of si m il ardi m ens ion s t o be out si de o f t he de mi nimi s ru le

.

-7-patrons. Id. Whil e rec og nizi ng that the defe ct was of simil ar dimensions to the def ect in Hartung
, we distinguished the defe ct on t h e basis that it was located on a sidewalk used excl u s i vely for ingr ess and eg ress to the bank. We noted that a landowner has a duty to provide safe ingr ess and egress to his premises. Id. at 901-02. In finding that a g enuine issue of materia l fac t exis ted as to whether the defe ct was de minimis
, we found that the risk of harm was rea sonably fore seea ble as the sidewalk was the only means of ingr ess and eg ress and an exit ing patron “might b e revie wing the receipts of her transac tions, looking for her

car key s, or looking toward her car and, there fore
, would not discover the sidewalk defe ct.” Id. at 902. We further noted that the defe ndant’s ec o n o m ic burden of preve ntion, as compar ed to that of a municipality or a shoppin g cente r, would be less substantial, as the amount of sidewa lk to be monitored and maintaine d was re latively slight. Id. ¶ 25 The fac ts here are distinguishable. Whil e Harris conce rned a side wa l k leading to the
entra nce o f a b ank, the defe ct here was located in defe ndants’ loading bay

. As previously discussed, sidewalk conditions are not to be expected in an industrial parking lot used to load semitrailers. Furthermore
, as defe ndants note, the loading bay are a was not a pedestria n

means of ingr ess and eg ress to the fac ility
, but was meant for vehicular traff ic. Also, wher eas in Harris all customers enter ing or exit ing the bank would trave rse the sidewalk in question,
not all drivers parking at defendants’ facility would encounte r the defec t while entering or exit ing their vehicles. Whether the defe ct wer e encounte red wo u ld d e p e n d on various fac tors, such as the ty

pe of truck, the leng th of its trailer, and the position of the trailer with r espec t to the loading bay

. Even if Morris or other drivers could be distracted when exit ing their vehicles, there is nothing to sug g est that they would encounte r the defe ct on a regular basis, and in fac t the various siz es of differ ent trailers indicate otherwise. In j u ry i n Ha r r is was

rea sonably fore seea

ble as all bank customers would use the sidewalk for ingr ess and eg ress. By contra st, here
, the fore seea bility of the harm is g reatly diminis hed. The “imposition of a legal d u t y require s more than a mere possibili ty of occur renc e” and is based on the fore seea bility of harm, rathe r than what actua lly happene d. Hartung
, 243 I ll. App. 3d at 814. ¶ 26 Plaintiffs further argue that, as in W arner v. City of Chicago
, 72 I ll. 2d 100 (1978), and Alqadhi v. Standard Parking, Inc.
, 405 I ll. App. 3d 14 (2010), wher e a defe ct was obscure d by snow or dim lighting
, it was fore seea ble that Morris would fail to see the defe ct g iven his

manner of disembarking the vehicle. Howeve r, W arner addre ssed an obscure d defe ct not in the context of the de minimis rule, but in the c ontextof whe ther the pla intiff exercised due

car e. W arner , 72 I ll. 2d at 105 (“[w]ere the defe ct uncover ed and appar ent to those upon the sidewalk, howe ver, the question of [the] plaintiff’s due c are would be less easily resolved, but that is not the fac tual situation here ”). Thus, the court’s de minimis analy sis turned on the fac t that th e j u ry co u l d have inferr ed that the defe ct measure d 2 inches when the incident

occur red, despite a 1 c -inch measure ment taken over five y ear s afte r the incident. The court did not sug g est that the l ay er o f s n o w cover ing the defe ct affec ted i ts de minimis analy sis, and it emphasized that its holding “should not be construed as diminis hing the forc e of the
g ener al rule that a municipality is not li able f

or minor sidewa lk defe cts.” Id. ¶ 27 I n Alqadhi
, the plaintiff tripped and fell over a three -quar ter-inc h rise in the concr ete of a wheel ch ai r-acce ssible ramp in the defendants’ parking g ara g e. Alqadhi
, 405 I ll. App. 3d
at 15. The rise was obscure d by dim lighting and was not marke d with paint, thus appea ring

-8-t o be a flat surfa ce. Id. The court held that the impaired visibil ity of the defe ct remove d i t

from the a

pplication of the de minimis rule. Id. at 19. ¶ 28 Unlike in Alqadhi
, the defe ct here can be seen by a driver befor e exit ing his vehicle and while approa ching his vehicle to enter

. I t is not obscure d by either dim lighting or an optical illusi on. Rather, as descr ibed by plaintiffs’ ex pert and from the p h o t o graphs in the record, the defe ct can be clea

rl y seen from differ ent ang les. Although it is possible that a driver exit ing his vehicle, when alig ned with the defe ct, would not see it as he disembarke d, ag ain the var ious siz es of diff

ere nt trailers make this occurr ence unlikely

. ¶ 29 Plaintiffs nex t argue that, as in Martinkovic
, Davis’s training , which indicate d that one inch constitutes a trip hazard, remove s the defe ct from the de minimis rule. In Martinkovic
, 150 I ll. App. 3d at 591, the plaintiff tripped on a 1 d -inch de fec t on a sidewa lk maintained by the city of Aurora

. The city had an express policy that deeme d unsafe any defe ct over one inch in heig ht and that re q u i re d p rompt repa ir. In aff irming the trial court’s denial of the city ’s motion for a direc ted verdic t, we held that, based on the city ’s policy
, we could not say that all rea sonable minds would ag ree that the def ect wa s de minimis

. Id. at 594. ¶ 30 Her e, there was no policy of repa iring d ef ec t s o v er an inch. The fac t that Davis took classes establishing a g ener al g uideline about trip hazards does not transfor m his knowledg e into an expli cit company policy

. L ikewise, his wee kly inspections of the premises do not g ive

cause to remove the defe ct in question from the de minimis rule. ¶ 31 Be cause we find that there wer e no ag g ravating factors sufficien t t o remove the def ect from the de minimis rule, we aff irm the trial court’s g rant of summary judgme nt in favor of defe ndants.

¶ 32 I I I . CONCL USI ON ¶ 33 Acc ording ly
, for the fore g o i n g re as ons, we aff irm the judgme nt of the circ uit court of Winnebag o County

.

¶ 34 Affir

med.

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