Appellate Court of Illinois,

First District,

FOURTH DIVISION.

Rhonda BARRETT, Plaintiff-Appellant,

v.

FA GROUP, LLC, an Illinois Limited Liability Company; and
87th Fish Corporation, an Illinois Corporation, Defendants-Appellees

(Red Pepper’s Lounge,
Inc., an Illinois Corporation; Whale Fish and Chicken, Inc., an Illinois
Corporation; Whale Beef and Pizza, Inc., an Illinois Corporation; and Whales
Fish and Chicken II, an Illinois Corporation; Defendants).

No. 1-17-0168

September 29, 2017

Appeal from the Circuit Court of
Cook County. No. 15 M1 301591, The Honorable Patricia O’Brien Sheahan, Judge,
Presiding.

OPINION

JUSTICE
GORDON delivered the judgment of the court, with opinion.

*1 ¶ 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 evidence that the depression plaintiff alleges she tripped on
had a height difference no greater than half an inch.

*2 ¶ 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 judgment3and 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 Whales 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 Whales Fish
restaurant. There is a dumpster in the back right corner of the lot, behind the
Whales 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 Whales 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 Whales 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 Whales Fish building. Plaintiff parked her vehicle in the
same way, near the 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.

*3 ¶ 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 Whales 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 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.

*4 ¶ 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 Whales Fish and owned the adjacent parking
lot. Noval averred that he “routinely visited” the premises during October
2013, and that the Google Maps image showed the Whales Fish and the adjacent
parking lot. Noval 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.”
Noval 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, 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 Noval, 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.

¶ 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.

*5 ¶ 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
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, 290 Ill.Dec. 218, 821 N.E.2d 269 (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, 180 Ill.Dec. 691, 607 N.E.2d 1204 (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, 350 Ill.Dec. 63, 948 N.E.2d 132 (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, 180
Ill.Dec. 691, 607 N.E.2d 1204. 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, 242 Ill.Dec. 738, 722 N.E.2d 227 (1999). The party
moving for summary judgment bears the initial burden of proof. Nedzvekas v.
Fung, 374 Ill. App. 3d 618, 624, 313
Ill.Dec. 448, 872 N.E.2d 431 (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, 313 Ill.Dec. 448, 872
N.E.2d 431 (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 325, 106
S.Ct. 2548, 91 L.Ed.2d 265 (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, 262 Ill.Dec. 916, 767 N.E.2d 376 (2002) (quoting Luu v. Kim, 323 Ill. App. 3d 946, 952, 256 Ill.Dec. 667, 752
N.E.2d 547 (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, 171 Ill.Dec. 824, 594 N.E.2d 1344 (1992).

¶ 27 “To succeed in an action for
negligence, the plaintiff must establish that the defendant owed a duty of care
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, 366 Ill.Dec. 258, 980 N.E.2d 58. “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, 366 Ill.Dec. 258, 980 N.E.2d
58. 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, 358 Ill.Dec. 613, 965 N.E.2d 1092.

*6 ¶ 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, 381 Ill.Dec. 102, 9 N.E.3d 1221 (citing Ward v. K
Mart Corp., 136 Ill. 2d 132, 141, 143
Ill.Dec. 288, 554 N.E.2d 223 (1990)); see also Choate, 2012 IL 112948, ¶ 25, 366 Ill.Dec. 258, 980 N.E.2d
58 (“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.
Ingersoll Cutting Tool Co., 2013 IL
App (2d) 120760, ¶ 12, 376 Ill.Dec. 712, 1 N.E.3d 45. 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, 381 Ill.Dec. 102, 9
N.E.3d 1221 (quoting Gillock v.
City of Springfield, 268 Ill. App. 3d
455, 457, 206 Ill.Dec. 63, 644 N.E.2d 831 (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, 381 Ill.Dec. 102, 9
N.E.3d 1221. “This rule stems largely from the recognition that
placing such a duty on a municipality would create an intolerable economic
burden. [Citation.] 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, 271 Ill.Dec. 945, 786 N.E.2d 203 (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, 381 Ill.Dec. 102, 9
N.E.3d 1221; Morris, 2013 IL App (2d) 120760, ¶ 12, 376 Ill.Dec. 712, 1
N.E.3d 45; Hartung v.
Maple Investment & Development Corp.,
243 Ill. App. 3d 811, 815, 184 Ill.Dec. 9, 612 N.E.2d 885 (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, 145 N.E.2d 105 (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, 376 Ill.Dec. 712, 1
N.E.3d 45(citing Birck v. City
of Quincy, 241 Ill. App. 3d 119, 121,
181 Ill.Dec. 669, 608 N.E.2d 920 (1993)). “The de minimis rule
generally precludes negligence claims on lesser defects, absent aggravating
circumstances.” Morris, 2013 IL App (2d) 120760, ¶ 13, 376 Ill.Dec. 712, 1
N.E.3d 45.

¶ 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, 6 Ill.Dec. 823, 363 N.E.2d 637 (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
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, 257
Ill.Dec. 39, 752 N.E.2d 1219 (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, 317 Ill.Dec. 262, 881 N.E.2d 430 (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.

*7 ¶ 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.7 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, 100 Ill.Dec. 290, 497 N.E.2d 170 (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, 100 Ill.Dec. 290, 497
N.E.2d 170.

¶ 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, 145 N.E.2d 105. 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 that this was also reasonably foreseeable. Arvidson, 11 Ill. 2d at 609, 145 N.E.2d 105.
Similarly, the supreme court in Warner v.
City of Chicago, 72 Ill. 2d 100, 104,
19 Ill.Dec. 1, 378 N.E.2d 502 (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, 345 Ill.Dec. 145, 938 N.E.2d 584 (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, 100 Ill.Dec. 290, 497
N.E.2d 170. 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, 100 Ill.Dec. 290, 497
N.E.2d 170 (“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, 376 Ill.Dec. 712,
1 N.E.3d 45. 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, 376 Ill.Dec. 712,
1 N.E.3d 45. 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.

*8 ¶ 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, 262 Ill.Dec. 916, 767
N.E.2d 376 (quoting Luu, 323 Ill. App. 3d at 952, 256 Ill.Dec. 667, 752
N.E.2d 547). 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 Whales Fish. Indeed, when plaintiff
testified in her deposition that she used the sidewalk to walk along the
street, around Whales 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, 358 Ill.Dec. 613, 965 N.E.2d
1092 (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 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, 145 N.E.2d 105. 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.

Justices McBride and Ellis concurred in the judgment and
opinion.