Drobick v. Costco Wholesale Corporation
Key Takeaways
- 1 A one-quarter inch pavement deviation falls within the de minimis doctrine, negating any common-law duty.
- 2 A party cannot defeat summary judgment by submitting an affidavit that contradicts prior deposition admissions.
- 3 Relevant for premises liability defense counsel and plaintiff's attorneys litigating slip-and-fall cases involving minor pavement defects.
Summary
Janet Drobick sued Costco Wholesale Corporation after falling in its parking lot on February 8, 2022, allegedly due to a pavement deviation. Following discovery, Costco moved for summary judgment, arguing the one-quarter inch deviation was de minimis and triggered no common-law duty. The circuit court struck Drobick's opposition affidavit—in which she claimed her multiple sclerosis made her more susceptible to minor defects—because it directly contradicted her deposition testimony in which she unequivocally denied that her MS contributed to the fall. The court then entered summary judgment for Costco, and Drobick appealed both rulings.
The Illinois First District Appellate Court affirmed on both issues. On the affidavit, the court reaffirmed that Illinois law prohibits a non-movant from contradicting sworn deposition admissions through a subsequent affidavit to avoid summary judgment. On the de minimis doctrine, the court held that a one-quarter inch pavement deviation—far below the generally recognized two-inch ceiling—does not present a reasonably foreseeable hazard to a person exercising ordinary care and therefore imposes no duty to repair or warn. The court emphasized the minimal size of the defect, the absence of aggravating circumstances, and the unreasonable burden that a contrary rule would place on large commercial landowners in a midwestern climate.
For practicing attorneys, this decision reinforces the vitality of the de minimis doctrine in Illinois premises liability cases and underscores the critical importance of consistent deposition testimony, as post-deposition affidavits that contradict prior sworn statements will be disregarded at the summary judgment stage.
Key Holdings
1. A one-quarter inch deviation in pavement grade falls within the de minimis doctrine and does not give rise to a common-law duty to repair or warn under Illinois premises liability law.
2. A non-movant cannot defeat summary judgment by submitting an affidavit that contradicts admissions made during prior deposition testimony.
3. Illinois courts have generally recognized two inches as the ceiling for a de minimis pavement defect; a one-quarter inch deviation falls far below that threshold and is not actionable.
4. The absence of aggravating circumstances—such as a plaintiff walking unencumbered on dry pavement while looking straight ahead—supports application of the de minimis doctrine even where some theoretical foreseeability of stumbling exists.