Sidewalk Trip and Fall Injury and the De Minimis Rule in Illinois

Our firm with co-counsel recently reached a settlement on behalf of a clienttrip and fall on sidewalk that suffered a trip and fall injury on a sidewalk. The client, a senior citizen, was walking into a bank when she tripped on unlevel concrete. The sidewalk was in poor condition and in an area of heavy foot traffic. She landed face first and broke both her front teeth. Our biggest challenge in the case was overcoming the de minimis rule in Illinois.

Slip and fall law Illinois

Under slip and fall law Illinois, a defendant will be held liable to the person who fell where the injury was caused by the property owner’s negligence. To show negligence in Illinois, the plaintiff must prove that the property owner failed to fulfill its duty to prevent the fall and that it caused the plaintiff’s injuries.

If the defendant is found negligent, liability will be under a theory of contributory or comparative negligence. Contributory negligence means that the victim is at least 50% at fault for the injury. Comparative negligence means that the victim is less than 50% at fault for his or her injuries. As a general matter, it can be difficult for a victim to recover under contributory negligence. Under comparative negligence, damages will be reduced by the proportion that the victim was found to be at fault.

One important defense that the defendant may have in Illinois is the de minimis rule.

What is the de minimis rule in Illinois?

The de minimis rule applies where someone is injured in a sidewalk injury case. The de minimis rule holds that the defendant will generally be liable for the victim’s injuries where there were sidewalk deviations approaching two inches in height. However, the Illinois courts have held defendants liable for deviations less than two inches. The courts also look at other factors besides height, like congestion, nearby distractions, as well as any evidence that the defendant was aware of the defects.

For instance, in a local case from 2018, Bartkowiak v. City of Aurora, 2018 App (2d) 170406, the plaintiff was injured when tripping over a hole in a parking lot that was approximately 1.5” deep. The trial court held that the de minimis rule prevented the plaintiff from recovering. The appellate court, however, disagreed with the trial court. The court held that since the depression was in a congested area likely to be frequented by pedestrians, there was broken asphalt in the area, and the defendant was aware of the hole the defendant could be held liable.

Likewise, the deviation in the sidewalk in our client’s case was less than 2” in height. As experienced slip and fall attorneys Illinois we were able to demonstrate to the defendant that we would be able to overcome the de minimis rule at trial. Not only was the sidewalk in poor condition it was located in a heavily congested area. Many other firms would have refused to take the case, believing that the rule would result in their client’s case being thrown out. Our firm, however, has many years of experience representing clients in sidewalk injury cases.

If you or someone you know have been injured in a sidewalk injury case, it is important to consult with an experienced personal injury attorney to discuss your options. If you have previously discussed your case with counsel and were informed that your claim was barred by the de minimis rule, please contact us today for a free consultation.

Personal injury law firm – arbitration clauses

Personal injury law firm discusses arbitration of auto insurance claims

My name is Barry Zlotowicz and I am the owner of a personal injury law firm headquartered in Glenview, Illinois. I’ve been licensed to Personal injury law firmpractice since 1993. During that time, I have been involved in many auto insurance claims where a client sought to recover from her own auto insurance policy for her damages. If you want a consultation about pursing an uninsured motorist claim against your own auto insurance policy, call me today at 847-305-4105.

Uninsured Motorist Coverage

I have detailed at length in this blog about the need to have adequate amounts of uninsured motorist (UM) coverage. If you get hit by an uninsured driver, you will have to seek compensation from your own insurance policy. In Illinois, everyone has a minimum of $25,000 in UM coverage if they have auto insurance.

What’s the Catch?

Once you file a claim against your own insurance policy, you and your insurance company become adverse. Meaning, that your personal injury law firm is trying to recover the maximum amount from your auto insurance and your insurance company wants to pay out as little as possible. That’s correct, you can and will get low-balled by your own insurance company.

Mandatory Arbitration Clauses

The first trick the insurance company already used to reduce your recovery against your own policy is that they inserted a mandatory arbitration clause in your auto insurance policy. You already bargained away your right to a jury trial for your damages. Don’t feel bad. We all agree to these clauses. They are inescapable if you want auto insurance. Unfortunately, juries, especially like those in Cook County, Illinois, can award large verdicts in cases involving severe injuries. In contrast, arbitrators are much more conservative when doling out compensation.

How to spot an arbitration clause

A typical um arbitration clause will look just like the clause below, which I copied from a former client’s policy. The name of the company will not be disclosed:

Arbitration. “Any dispute with respect to whether the insured is legally entitled to recover damages or the amount of damages recoverable by the insured shall be submitted for arbitration to the American Arbitration Association and shall be subject to its rules governing the conduct of arbitration hearings…”

How do you select an arbitrator? Usually set forth in the policy as well. The same policy as above stated that:

“Upon the insured requesting arbitration, each party to the dispute shall select an arbitrator and the 2 arbitrators so named shall select a third arbitrator.”

The arbitrator’s decision could be binding (meaning your stuck with it whatever it is) depending on the language of the policy. It might also provide that cases under a certain value are limited to arbitration but that cases in excess of that value might have the right to a bench (though probably not jury) trial. Meaning, a judge might hear your case, but a jury will not. And as stated above, a jury verdict is what you want, especially in Chicago.

Benefits of an arbitration clause

It wouldn’t be fair to completely diminish the value of an arbitration clause. There are benefits of an arbitration clause to you and your personal injury law firm. For example, it can take eighteen or more months to get to trial. However, the arbitration process moves much quicker. As such, you can obtain a resolution of your case and get access to your money quicker.

Also, the costs of arbitration can be much less than going to trial. That’s a benefit to you because accident victims represented by a personal injury law firm will have to pay the firm back for the expenses it fronted out of the proceeds of the recovery. The more costs, the less you recover.

Finally, arbitration is a less formal process. If you are intimidated by sitting in a courtroom and testifying to a jury, arbitration might be a better forum for you to have your grievance heard.

If you are injured in an accident and want to talk to a personal injury law firm, feel free to contact us for a free consultation at 847-305-4105. We can help you decipher the arbitration clause in your auto insurance policy and decide on the best course you can take to recover against it.