A handicapped woman who tripped on a two-inch curb at the Jerseyville Hardees after failing to use the designated handicap parking is appealing District Judge Staci Yandle’s order granting summary judgment for the restaurant.
Plaintiff Margaret Lorsbach filed a notice of appeal to the Seventh Circuit Appellate Court on March 23 through attorneys Michael P. Glisson and Timothy Chartrand of Williamson Webster Falb & Glisson in Alton.
Yandle had granted summary judgment in favor of defendants Pioneer Restaurants LLC and Hardee’s Restaurants LLC on Feb. 28, concluding that the curb at issue was open and obvious. The case was dismissed with prejudice in its entirety.
According to the complaint, Lorsbach and her husband, Charles Lorsbach, visited the Hardee’s restaurant in Jerseyville about twice a week for approximately two years, walking the same area of the parking lot to the entrance at least 20 to 30 times without incident.
When visiting the restaurant, Lorsbach and her husband parked on the south side of the restaurant and walked across a portion of the parking lot that included the drive-through lane. The restaurant has a curb to create a raised walkway area around the building toward the south entrance.
Despite having a handicap placard and license plate, the pair never used the handicap parking spaces, which had a barrier-free accessible route.
On Nov. 3, 2015, the couple visited the restaurant per usual. Lorsbach carried a cane in her left hand and an oxygen pack in her right hand. While navigating the parking lot, Lorsbach claims she stubbed her toe on the lip of concrete as she was attempting to step up onto the sidewalk.
Lorsbach fell, hitting her head and both knees. The suit states that she sustained severe injuries that resulted in amputation of her leg.
The plaintiff alleges the difference in height between the sidewalk and the drive-through lane of the parking lot created a tripping hazard and an unreasonable risk of harm. She also alleges the defendants created the height difference and were negligent in failing to inspect the premises, failing to warn patrons of the height difference, failing to extend the handrail, failing to “provide contrast in surface colors for the area in question,” and failing to repair or remedy the condition.
In their motion for summary judgment, the defendants argue that Lorsbach did not fall due to any acts or omissions on their part. Instead, they argue that she failed to lift her leg high enough to clear the curb.
Because the plaintiff argues that she did not realize the curb was there, the parties’ positions present a “classic material dispute regarding proximate causation which is typically question for the jury … not the court,” Yandle wrote.
The defendants also argue that the height of the curb is sufficiently low to qualify under the “de minimis rule.” According to the rule, height deviations between sidewalk slabs of less than two inches are "except from liability."
However, Yandle held that the rule does not apply to intentional raises in concrete.
“Notwithstanding Defendants’ argument, the de minimis rule does not automatically insulate a property owner from liability for a less than two inch height difference between any walking surfaces, under all circumstances,” she wrote. “Defendants offer no compelling reason to extend the rule to curbs, and this Court declines to do so.”
The defendants’ primary argument was that they owed no duty to the plaintiff with regard to the curb because it was an open and obvious hazard.
Because there is not dispute as to the physical condition of the curb in this case, Yandle held that whether a hazard is open and obvious is a question of law for the court’s determination.
“Based on the totality of the record, the Court finds that, to the extend the curb can be considered a hazard, it was an open and obvious one.
“The presence and condition of the curb and the associated risk would be apparent to and recognized by a reasonable person exercising ordinary perception, intelligence, and judgment,” Yandle wrote.
“Significantly, there is no evidence of any changed condition or foreign substance that would have rendered the curb any more hazardous or less obvious than the previous 19 or more times Plaintiff had successfully negotiated the step up.
“Whether she consciously took note of it or not, she was able to negotiate the step up as she navigated the parking lot environment numerous times before November 3, 2015,” Yandle continued.
She further concluded that thousands of other customers successfully navigated the same path for at least 14 months without a reported incident.
“The evidence, taken as a whole, suggests that a reasonable customer of ordinary perception, intelligence, and judgment would perceive the existence of the step and the need to deal with it by stepping up to the sidewalk. As such, any hazard posed by the curb is open and obvious,” Yandle wrote.
Lorsbach counters that the distraction exception applies, arguing that the defendants had reason to expect that the invitee’s attention may be distracted.
However, Yandle held that the plaintiff cites no actual evidence from which one could reasonably infer that she was in fact distracted, and the mere fact of looking elsewhere does not constitute a distraction.
Lorsbach further argues that the defendants had a burden to provide a safe means of ingress and egress, but Yandle held that the defendants did meet that burden with the handicapped parking spots.
“Beyond that, defendants simply owed Plaintiff no duty relative to the curb. Thus, plaintiff’s claims fail as a matter of law,” she wrote.
U.S. District Court for the Southern District of Illinois case number 3:17-cv-18