Illinois Municipalities' Overreaction to Liability Concerns Slows Progress On Bicycle Safe Roadways

America's roads were paved for the benefit and at the behest of bicyclists. "The Good Roads Movement was founded in May 1880, when bicycle enthusiasts, riding clubs and manufacturers met . . . to support the burgeoning use of bicycles." The movement is credited with pushing for paved roads before the reign of the automobile. In 1929, one of the founders of the movement, Horatio Earle, stated in his autobiography, "I often hear now-a-days, the automobile instigated good roads; that the automobile is the parent of good roads. Well, the truth is, the bicycle is the father of the good roads movement in this country. . . All these battles were won and the bicyclist was accorded equal rights with other users of highways and streets." Notwithstanding this history, twelve years ago the Illinois Supreme Court declared that streets and roads in our state are for motorized traffic, not bicycles. In its now infamous decision, Boub v. Township of Wayne, 183 Ill.2d 520, 702 N.E.2d 535 (Ill. 1998), the Court held that bicyclists are permitted but not intended users of Illinois roadways, unless the road at issue is specifically designated for bike traffic, e.g. with signs, markings, etc. Unless a roadway is so designated, a local municipality is completely immune from liability for a bicyclist's injuries caused by roadway hazards. The Boub decision is an anomaly. Nowhere else in the United States has a state high court declared that bicyclists are not the intended users of the very paved streets for which their two-wheeling forebearers advocated. The fallout from the Court's decision has gone beyond merely barring individual bicyclists from pursuing justice. It has slowed progressive attempts to bring bicycle safe roads and streets to communities in Illinois. This broadly felt negative impact was predicted by one of the Court's own members. Justice Heiple, in his dissent from the majority holding in Boub, forcefully offered a vision into the future shaped by the misguided ruling of his brethren:

The principal effect of the majority decision will be to discourage municipalities from taking any measures to make roads safer and more hospitable for bicyclists. Because the majority precludes liability whenever the municipality in question does not intend for bicyclists to use its roads, a loss-averse municipality, in order to minimize its exposure to liability, might remove from its roads any evidence that bicyclists are intended users, such as bike lanes or special signs.

Boub, 183 Ill.2d at 539-540 (J. Heiple dissenting).

Sadly, Justice Heiple was right.

Some suburban municipalities in the Chicagoland area are resistant to creating bicycle lanes in their districts out of fear that doing so could expose them to liability under Boub, according to John O'Neal, Transportation Planner for the Chicago Metropolitan Agency for Planning (CMAP). John is one of the folks at CMAP responsible for developing a comprehensive regional transportation plan to include the counties of Cook, DuPage, Kane, Kendall, Lake, McHenry and Will. Part of the plan is to include roadway bicycle lanes. Though some municipalities in these counties have created designated bike lanes -- Chicago being the most obvious example -- John tells me there has been resistance from others and that the holding in Boub has been cited explicitly. The effect of that decision has been felt in other parts of the state as well. According to Ed Barsotti, Executive Director of the League of Illinois Bicyclists, "While we’ve seen quite a few towns (especially in urbanized areas) moving ahead in recent years, plenty of others are still stalled by the liability disincentive. In rural areas, the vast majority of county highway departments and townships are completely scared by the issue."

How great is the liability threat to a municipality anyway? The short answer is not very. I am a personal injury lawyer who represents accident victims in litigation, so I am not in the business of providing municipalities and their insurers defense strategy guidelines. However, one must face facts: It is awfully difficult for a victim to successfully pursue a claim against a local governmental entity for injuries caused by a roadway hazard even absent complete immunity protection. The obstacles are set forth in section 10/3-102 of the Local Governmental and Governmental Employees Tort Immunity Act. That law creates several substantial hurdles that must be overcome by a bicyclist injured due to a public roadway hazard. When suing a governmental entity the injured bicyclist must prove that:

1. The municipality was put on notice of the dangerous condition. The municipality had to know that a hazard existed within a reasonably adequate period of time for a fix to be implemented. However, if the municipality had a reasonably adequate inspection system in place for detecting bike lane hazards, and used due care in maintaining and operating that system, yet failed to detect the hazard, the municipality will be deemed not to have had notice.
2. The roadway condition that is alleged to have caused the injury was indeed dangerous.
3. The municipality was negligent in maintaining the bike lane.

Additionally, the bicyclist will likely have to defend against the notion that he or she was contributorily negligent in causing his or her injury.

Consider the following hypothetical: Smallville, Illinois has created a marked bike lane along the right side of its main thoroughfare. It has also implemented a program whereby a road crew inspects the entire distance of the bike lane on a monthly basis for hazards such as tree branches, garbage, holes, large cracks and the like. If a hazard is observed it is remedied within a reasonable period of time. One pleasant afternoon Sally Triathlete is riding her bicycle within a section of Smallville's bike lane. She is training for an upcoming competition so she is pushing herself, pedaling at a very high rate of speed. The day before Sally's training run Smallville's road inspection crew inspected the bike lane and saw nothing of note. The crew documented its inspection. That evening a violent storm blew through Smallville knocking a large tree branch into to the bike lane. During Sally's vigorous ride her front wheel struck the branch and she was propelled off her bicycle suffering serious injury. She subsequently hired an attorney wanting to sue the municipality for failing to properly maintain the bicycle lane. Tough case; one in which the prospect of success is low. Given the existence of a reasonable inspection system and the relatively short period of time between the creation of the hazard (the tree branch falling) and the collision between it and Sally's bike, Smallville will likely be found not to have had notice of the danger and likely will not be held liable for Sally's injury. Also, there will likely be serious questions raised about Sally's own negligence, particularly the speed at which she was traveling. I would frankly anticipate Sally having a difficult time finding an attorney willing to take her case.

If a municipality provides a service or amenity to its residents, then it must do so with care to avoid injury. However, both the Illinois legislature and Illinois' courts have consistently recognized the need to protect municipalities from litigation, lest they become financially overwhelmed by insurance premiums and the cost to defend against lawsuits. Attorney's who represent injury victims tend to only have success against local municipalities where injury is caused by the most brazen betrayal of the public trust. Municipalities in Illinois who decline to make their roadways safe for bicycle traffic for fear of liability following Boub are overreacting. Worse, their leaders are failing to protect the most vulnerable users of the roads, children and adults traveling by bicycle.

The Dangers Faced By Chicago Bicyclists

The dangers faced by Chicago bicyclists were detailed last night in an informative piece on Fox Chicago News. It was reported that, "In 2008, the last year on record, 27 riders were killed [in Illinois]; over three thousand were seriously injured." Chicago reportedly sees about "five fatalities and just over a thousand accidents a year." A Chicago emergency department physician interviewed for the story reported that she sees "as many as four or five injured cyclists a week." The story also noted the of the efforts by the Chicago Department of Transportation to reduce the number of bike accidents. Here is the complete video:

12 Year Old Killed On Southwest Side By Non-Yielding Motorist

A 12 year old boy, Kelly Ryan, was killed last night on Chicago's Southwest Side after being struck by a pick-up truck along a residential intersection, according to The Southtown Star. The incident occurred at around 8:30 p.m. at or near the intersection of South Narragansett Avenue and 60th Street. Police cited the driver for failing to yield the right of way to a bicyclist and for negligent driving. Click here to read the full story.

Representing The Competitive Cyclist In Personal Injury Litigation

Competitive cyclists are a hardy bunch. Years ago I did a bit of mountain bike racing. It was very amateur stuff and I generally got my butt kicked, but even at that level there was definitely a hard-ass, nothing-will-slow-me-down attitude among the competitors. Like any other athlete, bicycle racers get hurt. They crash, lose skin, break bones. But following an injury many of these folks will want to just rub some dirt on it then get right back on their bikes. I admire that attitude, but it can get in the way of a personal injury claim. Say, for example, you are out training before a big race, get hit by a car and suffer a shoulder separation and ankle fracture. You hire an attorney who brings a claim against the driver. Grimacing with each pedal stroke you participate in and finish the big race, though you don't do as well as in previous contests. When your attorney begins negotiating resolution of the case, the motorist's attorney (hired by the insurance company) pushes back against your demand for a significant settlement by pointing out that you raced soon after your accident; your injury must not be too bad.

Wait, what? thinks the bicyclist's attorney. How the heck did he know about the race? Many insurance companies will look up a competitive athlete's race history online to learn if they've raced soon after sustaining a injury. The defense will use this information to suggest that the injury wasn't very serious after all. In front of a jury of coach potatoes, you can imagine the type of impact this information may have.

The attorney of an injured competitive cyclist must take into account that the defense will learn his or her client's race history when devising a case strategy. The client must me made to understand that racing after an accident may negatively impact the case. Perhaps it should be avoided. If the race is just too important then care must be taken early in litigation to gather evidence to help a jury understand the competitor's mindset and to appreciate how a serious athlete endures pain. If the cyclist had to be taped, casted or otherwise specialty outfitted in order to race, take some photographs depicting this. Catalog race statistics and results from before the accident and be prepared to compare those to race results afterward. Was performance compromised by the injury? The bottom line is that the attorney must be ready to teach a jury (or a claims adjuster) about the athletes' mindset. An athlete endures pain, but suffers nonetheless.

Chicago Tonight To Air Program Focusing On Bicycle Safety

Chicago's WTTW, channel 11, will air a report on bicycle safety tomorrow night, April 13th, at 7 p.m. on the Chicago Tonight program. The show is said to focus on the difficulties encountered by a cyclist who recently broken his pelvis while bicycling.

Thanks to Sol for bringing this to my attention.

Evil Ninja With A Wrench

Last night outside of The El Mamey Lounge in Humbolt Park, 2645 W North Ave (between Talman Ave & Washtenaw Ave, a thief (or thieves) made off with more than six wheels from various bicycles parked outside. All of the bikes were locked. Many of the wheels stolen, if not all of them, where bolted on to the forks and dropouts/track ends. They did not have quick release skewers. At least one of the stolen wheels had chain tugs securing it to the frame. It has been estimated by one of the victims that the theft took place during a 10 to 15 minute time span. Apparently, all of the bikes were locked to a gate due to the absence of bike racks in front of the bar. I'm told that this prevented the use of cable locks to secure the wheels.

This sounds like a fairly astonishing feat. To steal a single wheel, especially a front wheel, with a quick release lever would be fairly easy. No tools would be required and it is a fast operation. But to steal six, or more, bolted on wheels in a short time would require use of a wrench. It would be a slow operation. And risky. How does a thief get away quickly with all of those wheels?

Hit and Run Limousine Driver Attacked For Striking Bike Messenger

A New York City bicycle messenger had enough yesterday and allegedly chased down a driver that had struck him and kept going. Upon catching up to the vehicle, a limousine, he allegedly shattered the vehicle's windshield and gave the driver a black eye. "He hit me and kept going," he told the New York Post. "I'm sick of this." While I do not condone the bicyclist's conduct, I am not surprised that he responded in the way he allegedly did. Many urban bicyclists are sick and tired of drivers acting cavalierly with their lives and with the seeming indifference some police officers have regarding bike accidents. Until these two things change, and until our traffic infrastructures better accommodate bicycles, I am afraid more incidents like this are likely, especially in places like New York and Chicago.

The story I have linked to is from the New York Post. It is a terribly written piece which blatantly favors the driver's point of view. There seems to be little acknowledgment or sympathy for the fact that the bicyclist was hit by a car! In any event, here is a link to the full story.

Thanks to Kelvin Mulcky for making me aware of this story.

Public Entity Liability For Injuries To Bicyclists Caused By Hazards In Illinois' Recreational Areas

With spring finally in the air the hearts of the young and old will turn to bicycle riding, especially in the many forest preserves, bike trails and paths in Illinois. These are the places where cyclists can relax and just ride absent the fear of motorized traffic. There are hazards out there, though, on the trails and paths. This post will consider when an Illinois public entity, usually a park or forest preserve district, can and cannot be held liable for injuries resulting from hazards on bicycle paths, trails and access roads.

Different rules apply for holding a public entity liable for injuries arising from hazards on a bike trail or path than for injuries caused by a hazard on a public road or street. (See my previous post pertaining to liability for roadway hazards.) Legal analysis of an accident occurring on a bicycle path or trail must start with location. Where the accident took place will significantly affect the injured bicyclist's ability to hold a public entity responsible for its misdeeds. Regardless of the location, the public entity will receive immunity protection from liability. However, the immunity is complete if the accident occurred on a trail in a "natural," non-urban setting. Immunity is more limited for injuries arising from a defect on a bike path in an urban area. Section3-107 of the Local Governmental and Governmental Employees Tort Immunity Act states:

"Neither a local public entity nor a public employee is liable for an injury caused by a condition of: (a) Any road which provides access to fishing, hunting, or primitive camping, recreational, or scenic areas and which is not a (1) city, town or village street, (2) county, state or federal highway or (3) a township or other road district highway. (b) Any hiking, riding, fishing or hunting trail."

Mull v. Kane County Forest Preserve District, 337 Ill.App.3d 589 (2nd Dist. 2003) provides an example of how Illinois courts apply this statute. In that case the plaintiff was injured when her bicycle struck a rut in a bike trail that winds through a forest preserve. Her subsequent lawsuit alleged that the forest preserve breached its duty to her by failing to remedy the hazard created by the rut. In finding that section 3-107 applied to grant the Forest Preserve District complete immunity the Court noted that, "The plain and ordinary meaning of a trail is a 'marked path through a forest or mountainous region." Mull, 337 Ill.App.3d at 591, citing Webster's Third New International Dictionary 2423 (1993). The Court noted that the trail in question was generally used as a riding path, traversed 17 miles of forest preserve and provided access to forests. Id. at 592. Though the trail ran through some developed areas it was also "surrounded by wild grasses and shrubs." Id. In reversing the jury's finding of liability, the Mull court relied heavily on a earlier case, Brown v. Cook County Forest Preserve, 284 Ill.App.3d 1098 (1st Dist. 1996). In that case the plaintiff was injured after falling from his bike on a paved path in the Sauk Trail Woods Forest Preserve, located about 33 miles south of Chicago. The plaintiff alleged that the poor design of the path and its placement next to a metal guard rail caused him to lose control of his bike and crash into the rail. However, a jury never got to consider this issue, the appellate court upholding the lower court's dismissal of the lawsuit pursuant to section 3-107. The appellate court found that the section applied to grant complete immunity because the bike path circled a lake and that the "land surrounding the path was generally wooded, and otherwise undeveloped." The court did not consider the fact that the path was paved to be significant.

The courts in Mull and Brown both distinguished the 5th District case, Goodwin v. Carbondale Park District, 268 Ill.App.3d 489 (5th Dist. 1994). In that case the plaintiff sued a park district after he was injured when his bike struck a tree that had fallen across a paved bike path in a city park. In finding that the immunity afforded under section 3-107 did not apply, the Goodwin court stated, "Reading section 3-107 as a whole indicates that the property referred to therein is unimproved property which is not maintained by the local governmental body and which is in its natural condition with obvious hazards as a result of that natural condition." Goodwin, 268 Ill.App.3d at 493. "We simply do not believe that the legislature intended to include within section 3-107(b) a paved bike path in a developed city park." Id. at 493-4. It is important to note, however, that there is disagreement among Illinois' appellate districts on this point. The Goodwin court acknowledged that its decision was probably inconsistent with the decision reached in Scott v. Rockford Park District, 263 Ill.App.3d 853 (2nd Dist. 1994). In that case the parents of a nine year old boy brought an action after their son was injured when his bike struck a crack in a bridge in a city park. The bridge crossed a creek connecting a paved pathway in the park. There were improvements to the land in the area where the accident took place including chain link fences, asphalt and concrete paths and a park operations building. Nevertheless, the 2nd District court felt that complete immunity applied because the bridge at issue was an access road to a recreational area. The Illinois Supreme Court has not yet offered clarification that might harmonize Scott and Goodwin.

What we can gather from reading these cases is that Illinois courts will consider the location of the accident to determine the applicability of section 3-107. The courts will look at the totality of the surroundings and will be more inclined to find complete immunity in a less developed setting, especially where the path or trail provides access to other recreational activities. (Surprisingly, I did not find an appellate case in Illinois arising out of injuries sustained from hazards present along Chicago's popular lakefront bike path. If any readers are aware of any such case I would appreciate a citation.)

It is important to point out that the complete immunity provided by section 3-107 will only apply where the injury arose from the condition of the trail or path itself. In Sites v. Cook County Forest Preserve District, 257 Ill.App.3d 807 (1st Dist. 1994) the court held that section 3-107 did not bar the lawsuit of a bicyclist who was injured when he struck a chain-like device that was strung across a road within a forest preserve. The court noted that, "The road provided access to recreational and scenic areas in the forest preserve, was part of the preserve, and was itself a hiking trail and recreational area." Sites, 257 Ill.App.3d at 809. However,

"A structure erected on an access road, such as the chain or cable gate causing plaintiff's injury, should not be considered a physical condition of the road covered by section 3-107. The structure was an artificial barrier that was not a part of the road itself. The statute does not appear to have the purpose to relieve public entities from liability for injuries caused by structures erected on the exempted roads."

Id. at 811.

Even if a court finds that section 3-107 does not apply, a public entity will have limited immunity for injuries sustained due to the condition of a bike path. Section 3-106 of the Tort Immunity Act provides for immunity,

"where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury."

Under this section, if the injury occurred in a city park, the public entity can only be found liable where it was guilty of more than mere negligence. Instead there must be a finding that the injury was due to "a course of action which shows an utter indifference to or conscious disregard for the safety of others." I.P.I. 14.01. "A defendant is willful and wanton when he has actual or constructive knowledge that his acts, or his failure to act, create a high probability that others will incur serious physical harm, and the defendant nevertheless recklessly disregards this danger." McDermott v. Metropolitan Sanitary District, 240 Ill.App.3d 1, 28, 607 N.E.2d 1271 (1st Dist. 1992). This is a tough standard that will pose a substantial hurdle to injured bicyclist seeking accountability from a public entity.