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.