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1 September 2000

No. 2--99--0965

____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

____________________________________________________________________________

PRESIDING JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, 74-year-old Ann Harris, brought a negligence actionin the circuit court of Kane County against defendant, Old KentBank, for injuries she sustained when she tripped and fell on thesidewalk as she exited the bank. Defendant filed a motion forsummary judgment, contending that the height differential betweenthe two slabs of the concrete sidewalk upon which plaintiff trippedwas so minor as to constitute a de minimus defect and thereforedefendant owed plaintiff no duty. The trial court granteddefendant's summary judgment motion, and plaintiff appeals.

On appeal plaintiff contends that (1) the trial court erred ingranting defendant's motion for summary judgment, as a genuineissue of material fact existed regarding whether the size of thesidewalk defect plaintiff complained of was de minimus; and (2) thetrial court abused its discretion in denying plaintiff's motion fora continuance of the hearing on the summary judgment motion.

The following facts are taken from the pleadings and thebystander's report. On October 30, 1995, at approximately 12:45p.m., plaintiff exited defendant's banking facility aftertransacting business. In the preceding five years plaintiff hadtransacted business at the bank about once a week. On the date ofthe incident, the day was clear and dry. Plaintiff walked towardher car, which was parked in the first parking space nearest to theentrance of the bank. Plaintiff did not remember ever parking inthis space, as usually another car would be parked there. Theparking spot was directly parallel to a portion of the sidewalkleading to the entrance. Photographs of the area showed that theparking lot and sidewalk are outdoors and completely exposed to theelements. Photographs also showed that the sidewalk consisted ofa short portion leading from the first parking space to the bankand a longer portion running parallel to the length of defendant'sbuilding and adjacent to the other parking spaces for defendant'spatrons.

While walking toward her car, plaintiff caught her foot on oneof the slabs of the sidewalk that was higher than an adjoiningslab. Plaintiff lost her balance and fell forward to the sidewalk. As a result of the fall, plaintiff sustained multiple injuries,including a fractured elbow. Both an ambulance and the St. Charlespolice department were summoned to the bank.

Neither plaintiff nor anyone else to her knowledge measuredthe height differential between the two slabs. Officer CharlesNyari of the St. Charles police department responded to the callregarding the incident at the bank. As a result of hisobservations and investigation of the incident, he completed areport. According to the report, the height differential betweenthe slabs of sidewalk was "an approximate one inch." Nothing inthe officer's report or affidavit indicates whether he measured theheight differential.

Following the accident, plaintiff's son took photos of thearea where plaintiff allegedly tripped over the sidewalk. At thepoint where the height differential existed between the two slabsof concrete, plaintiff's son placed a shoe plaintiff had beenwearing, as a device for measuring the height differential.

On April 9, 1999, Sandra Holder, defendant's bank manager,learned the precise area where plaintiff claimed to have fallen andmeasured the height differential of the two sidewalk slabs. Thedistance from the top plane of the lower slab to the top plane ofthe higher slab was three-fourths of an inch. According toHolder's deposition testimony, there had been no repairs to thesidewalk since plaintiff's accident.

On October 23, 1997, plaintiff sued defendant for negligence. Defendant answered, denying any liability. In May 1999 defendantfiled its motion for summary judgment contending that, pursuant tophotographs, Holder's affidavit, and excerpts from plaintiff'sdiscovery deposition, all of which were attached to the motion, andIllinois case law, the height differential between the two sidewalkslabs upon which plaintiff allegedly tripped constituted a deminimus sidewalk defect and, therefore, defendant owed plaintiff noduty.

Plaintiff filed a response, attaching the photographs taken byher son, excerpts from her discovery deposition, Officer Nyari'sincident report, and excerpts from the discovery deposition ofHolder. Plaintiff asserted that the photographs attached to herresponse "distinctly indicate that there is at least a one-inch, ifnot larger, disparity" between the two slabs of sidewalk.

At the beginning of the hearing conducted on defendant'ssummary judgment motion, plaintiff requested that the hearing becontinued until (1) defendant complied with its promise to producecertain documents and records that Holder identified during herdeposition and (2) plaintiff had the opportunity to submit anaffidavit from Officer Nyari regarding his measurement of the one-inch height differential where plaintiff's injuries occurred. Defendant responded that the supplemental production request inquestion was not yet due and that the items requested were broaderand different from those referred to at Holder's deposition. Additionally, the items requested were not relevant to the issueraised in the summary judgment motion pertaining to the de minimusheight differential of the sidewalk.

Plaintiff maintained that the parties had made an oralagreement during Holder's deposition that the documents would beproduced and that defendant was obligated to comply with thatpromise regardless of whether subsequent written confirmation ofthe request had been received by defendant. Plaintiff alsoasserted that the requested documentation was material and relevantto the issues.

Defendant replied by reiterating the difference in scope andnature between the items requested in the written supplementalproduction request and the items requested at Holder's deposition. Defendant also stated that there had never been any specificagreement to produce the items requested at Holder's deposition butonly an agreement that Holder would inquire as to whether certaindocuments existed.

The court denied plaintiff's request for a continuance butgranted plaintiff leave to supplement the record with OfficerNyari's affidavit. The court stated that it would consider thefacts as though the affidavit of the officer was in the record.

Defendant then proceeded to present its argument in favor ofsummary judgment, stating that plaintiff had produced no evidenceas to the height differential of the sidewalk; that the measurementtaken by defendant's branch manager, Holder, indicated the heightdifferential between the concrete slabs where plaintiff fell wasthree-fourths of an inch; and that case law held that a heightdifferential under two inches without any other circumstancespresent may be nonactionable. In particular, defendant relied onHartung v. Maple Investment & Development Corp., 243 Ill. App. 3d811 (1993), wherein this court held that a differential betweenone-half to three-fourths of an inch could not be the basis of anegligence action as a matter of law. Additionally, defendantpointed out that plaintiff had provided no evidence regarding theamount or type of pedestrian traffic using defendant's sidewalks.

In response plaintiff argued that a one-inch differentialexisted between the sidewalk slabs, as illustrated by plaintiff'sphotographs with the shoe showing that differential. Plaintiffurged the court to consider Officer Nyari's statement in his policereport that an approximately one-inch differential existed in thesidewalk slabs at the time of the incident. Also, plaintiff arguedthat Holder's measurement should be "suspect" because it was takenseveral years after plaintiff's fall. Additionally, plaintiffmaintained that defendant's entranceway was discrete, i.e.,separate and distinct, and heavily traveled. These facts,plaintiff argued, created a heightened duty on defendant's part tomaintain the sidewalks leading to the entrance. Finally, plaintiffcontended that there was no "bright-line test" regarding whatconstituted a de minimus sidewalk defect and that this factualissue required a jury determination.

Defendant responded that the holding in Hartung wascontrolling, that under Hartung the three-fourths-of-an-inch heightdifferential in the present case was not a basis of a negligenceclaim as a matter of law, and that plaintiff had cited no cases insupport of her position that such a measurement was a recognizedcause of action. The trial court determined that, to establisha duty with respect to an injury from a fall on a sidewalk, aplaintiff must show that the sidewalk defect is not de minimus,i.e., there must be evidence of the size of the defect and anyaggravating circumstances. The court found that plaintiff hadfailed to prove either of these factors. The court furtherdetermined that, under controlling case law, specifically Hartung,and on the evidentiary record before it, including what wasrepresented as being contained in Officer Nyari's report,insufficient evidentiary factual material existed to give rise toa legal duty running from defendant to plaintiff with respect tothe sidewalk defect in question. The court granted defendant'smotion for summary judgment. This appeal ensued.

Following the filing of the briefs in the present case,defendant moved to strike plaintiff's reply brief, asserting thatplaintiff had appended certain documents to her brief that were notcontained in the record on appeal, specifically, defendant'sanswers and supplemental answers to plaintiff's interrogatories. Defendant asked this court to strike the appendix and allreferences to the appended documents from plaintiff's reply brief. Plaintiff filed a response to defendant's motion, contending thatthe documents had not been filed with the clerk of the circuitcourt in Kane County because Supreme Court Rule 201(m) (166 Ill. 2dR. 201(m)) prevented their filing. Supreme Court Rule 201(m)provides that "[n]o discovery may be filed with the clerk of thecircuit court except upon leave of court or as authorized orrequired by local rule or these rules." 166 Ill. 2d R. 201(m). Inher response, plaintiff maintained that Rule 201(m) should not actas a bar to this court's consideration of defendant's answers andsupplemental answers to plaintiff's interrogatories. Plaintiffasserted that the documents were essential to our determination ofher second issue, pertaining to the trial court's denial of hermotion to continue the hearing on defendant's summary judgmentmotion until discovery was complete.

We ordered that defendant's motion to strike and plaintiff'sobjections thereto be taken with the case.

Attachments to briefs not included in the record are notproperly before the reviewing court and cannot be used tosupplement the record. Carroll v. Faust, 311 Ill. App. 3d 679, 683(2000). Here, plaintiff admits in her response to defendant'smotion to strike that defendant had served upon plaintiff itsanswers and supplemental answers to plaintiff's interrogatories andrequest for production prior to the summary judgment hearing. Plaintiff states that she contested the propriety of those answersat the hearing. She also asserts that the trial court consideredthese documents in denying plaintiff's motion to continue thehearing. Because of these facts, plaintiff maintains that thiscourt must consider the appended documents in deciding plaintiff'ssecond issue.

However, if plaintiff wanted this court to consider thesedocuments upon review, she should have moved for leave to file themwith the circuit court, as is permitted under Supreme Court Rule201(m), so that the documents would have been included in therecord on appeal. By failing to make the documents a part of therecord, plaintiff has precluded our consideration of them onreview. Accordingly, defendant's motion to strike is granted, andthis court will not rely on the materials appended to plaintiff'sreply brief or the references to that material in the brief.

Plaintiff first contends that the trial court erred ingranting defendant's motion for summary judgment, as a genuineissue of material fact existed regarding whether the size of thesidewalk defect plaintiff complained of was de minimus. Summaryjudgment should be granted when the pleadings, depositions, andadmissions on file, together with the affidavits presented, showthat there is no genuine issue of material fact and the movingparty is entitled to judgment as a matter of law. Cramer v.Insurance Exchange Agency, 174 Ill. 2d 513, 530 (1996). Becausesummary judgment is a drastic means of disposing of litigation, itshould be granted only when the right of the moving party is clearand free from doubt. Swann & Weiskopf, Ltd. v. Meed Associates,Inc., 304 Ill. App. 3d 970, 974 (1999). The existence of a dutyowed by the defendant to a plaintiff is a question of law, whichmay be determined on a motion for summary judgment. Jacob v.Greve, 251 Ill. App. 3d 529, 534 (1993). This court reviews denovo an order granting summary judgment and will view the evidence,and all reasonable inferences drawn therefrom, strictly against themovant and liberally in favor of the opponent. Scardina v. AlexianBrothers Medical Center, 308 Ill. App. 3d 359, 363 (1999).

Relying on this court's decision in Hartung v. MapleInvestment & Development Corp., 243 Ill. App. 3d 811 (1993),defendant argues that a sidewalk deviation one-half inch to three-fourths of an inch high constitutes such a minor defect that it isde minimus and, as a matter of law, cannot be the basis of anegligence action. Plaintiff maintains that the rationale for thede minimus rule does not apply to the instant case.

In Hartung this court extended the application of the deminimus rule regarding defective sidewalks to private owners andpossessors of land. Previously, the rule applied only tomunicipalities and developed out of the recognition thatmunicipalities do not have a duty to keep all sidewalks in perfectcondition at all times because the economic burden placed on amunicipality to repair every defect existing in the miles ofsidewalk it maintains would be too great. Gillock v. City ofSpringfield, 268 Ill. App. 3d 455, 457-58 (1994). Thus, slightdefects frequently found in traversed areas of municipal sidewalksare not actionable as a matter of law. Gleason v. City of Chicago,190 Ill. App. 3d 1068, 1070 (1989).

The plaintiff in Hartung had sustained injuries when shetripped on a raised portion of a sidewalk near a liquor storelocated in a shopping center owned and managed by the defendant.Plaintiff estimated that there was a one-half-inch to three-fourths-of-an-inch height differential between the two slabs of thesidewalk in the area where she fell, but no one had actuallymeasured the difference in the elevation of the slabs at the timeof the occurrence. This court recognized that minor defects suchas the one in question may be actionable if other aggravatingfactors--heavy traffic, for example--were present because apedestrian might be distracted by such. However, the plaintiff inHartung had not pleaded any other aggravating circumstances in hercomplaint. Based on this court's review of cases involving defectsin municipal sidewalks, we concluded that if the de minimus ruleapplied to a private owner or possessor of land, the defect inHartung could not be, as a matter of law, the basis of a negligenceaction because, by the plaintiff's own estimate, the defect wasonly one-half to three-fourths of an inch high and no aggravatingcircumstances were present. Hartung, 243 Ill. App. 3d at 815.

This court then addressed whether the de minimus rule appliedand found that, like a municipality, which is not an insureragainst all accidents, an owner or occupier of land is not anabsolute insurer of the safety of an invitee. Hartung, 243 Ill.App. 3d at 815-16. Rather, the duty of an owner or occupier of anypremises toward invitees is that of reasonable care under thecircumstances regarding the state of the premises or acts done oromitted on them, and he must maintain the premises in a reasonablysafe condition. Hartung, 243 Ill. App. 3d at 816.

The court found that there was no unreasonable risk of harmpresented by the facts of the case and no compelling reason torequire possessors of land to maintain sidewalks perfectly at alltimes. In so finding, we referred to the burden placed onmunicipalities to maintain large expanses of sidewalk subject tothe extreme and changeable weather conditions of Illinois and foundsimilar the burden of the owners of a shopping center, such as thedefendant, to maintain sidewalks exposed to the elements that mightcover hundreds of thousands of square feet. Hartung, 243 Ill. App.3d at 817. This court determined that a "minor defect" such as theone under review constituted a defect that is encountered in anordinary sidewalk and one that a person exercising ordinary carecould have easily avoided. Hartung, 243 Ill. App. 3d at 816-17. We did emphasize, however, that the de minimus rule "cannot beapplied blindly to cover every situation" and that "[i]tsapplication may well depend on other factors not present here." Hartung, 243 Ill. App. 3d at 817. While we agree with our decisionin Hartung, we find other factors present in the instant case thatdistinguish it from Hartung.

Because there is no mathematical formula or bright-line testfor determining what constitutes a slight or minor defect in asidewalk, each case must be determined on its own facts. Warner v.City of Chicago, 72 Ill. 2d 100, 104 (1978); Hartung, 243 Ill. App.3d at 814. The location of a defect is a determining factor as towhether a defect is actionable. Gleason, 190 Ill. App. 3d at 1070.

Defendant maintains the sidewalk defect was only three-fourthsof an inch as measured by its branch manager, Holder, nearly 3