 |
Our client's bike wheel trapped by the
hazardous drainage grate at 4738 West
Lawrence. This photo was taken weeks
after the crash to demonstrate what had
caused his injuries. |
The City of Chicago has lost its attempt to deny responsibility for injuries caused by a drainage grate that it knew posed a danger to bicyclists. The grate, located in the 4700 block of West Lawrence Avenue, was identified by the Chicago Department of Transportation (CDOT) in 2006 as among those posing a hazard to cyclist and needing to be replaced. The work never occurred. As a result, a 50 year old male cyclist suffered a broken arm when the front wheel of his bike became trapped in the grate in August, 2011. The grate was located within a clearly designated bicycle lane.
Our law firm filed a lawsuit on the bicyclist's behalf alleging that the City was negligent for failing to replace the dangerous grate with a safe one. The City subsequently sought dismissal of the lawsuit claiming it owed the bicyclist no duty to replace the grate. A Cook County judge denied the City's motion for dismissal, which recently lead to successful resolution of the case. Unfortunately, the hazardous grate remains to this day.
The case arose from an incident in which our client was riding his bicycle in the marked bike lane westbound near
4738 West Lawrence Avenue. The area is where Lawrence passes over the Edens Expressway.
The crash occurred just as the cyclist was
approaching the bridge. As he pedaled in the bike lane motor vehicle traffic to his left was backed up. Without warning, one of those vehicles veered
into the bicycle lane causing the bicyclist to swerve to his right to avoid a collision.
When the car swerved it blocked his vision of the sewer grate. The front wheel of his bicycle
dropped into one of the slots of the grate and became trapped, stopping his
bike suddenly. His body was thrown forward off of the bike
and into the street where he broke his arm.
With its dismissal
motion the City tried to avoid responsibility on several fronts. Firstly, it claimed that the grate was not located on City property and that it, therefore, had no duty to address the hazard. Secondly, it argued that the cyclist was not an intended user of the place where the grate was located. The City claimed that the grate was not in a bike lane, but was in the gutter area. Thirdly, the City claimed that it was the cyclist's fault for not watching where he was going. Our firm filed a
responsive brief demonstrating why each of the City's arguments should fail. We explained to the Court that while the area where the grate was located fell under the jurisdiction of the State of Illinois rather than the City of Chicago, that the State had contracted with the City for the City to maintain its roadways, including the area where the grate was located. Therefore, the City's argument that it owed no duty to cyclists to replace the grate should fail.
We also addressed the City's argument that the grate was not located in a place that a bicyclist was intended to be. The City's position in this regard relied on the infamous case of
Boub v. Township of
Wayne, 183 Ill.2d 520, 702 N.E.2d 535 (1998).
In it, the Illinois Supreme Court created the rule of law that local
municipalities may be liable to bicyclists only for injuries caused by a road hazard
when the hazard was encountered upon an area permitted and intended for use by bicyclists. In other words, the a municipality could be held liable only where the hazard was in an area explicitly designated for bicycle traffic like a bike lane. In our case, the City argued that the grate was not located in the bike lane. Here is a photograph of the grate as it was around the time of the crash:
The City argued that the bike lane goes from the white pained line to the cement gutter in which the grate was located. To us, that seemed awfully convenient for the City. Just under what authority was the City claiming that the bike lane ended at the cement "gutter" rather that the curb? And just how was a cyclist supposed to know that the bike lane ended where the City claimed? During the course of the litigation I took the deposition of CDOT Deputy Commissioner, Luann Hamilton. During her deposition she she stated that on a road with no
curbside parallel parking, the bike lane runs only to the gutter at the edge of
the roadway. However, when shown a photograph of another bike
lane along a curb in the City of Chicago -- the bike lane along Dearborn Street
-- she admitted that the gutter area there is
part of the bike lane. Here is the photo from the Dearborn bike lane I showed to her:
She was at a loss to explain this inconsistency. Furthermore, in an
internal memo originated by Ms. Hamilton in 2006, the City had specifically identified the grate at issue as being within a "bikeway," and posing a hazard to bicyclists "
because the slots of the grates are aligned
parallel to the curb so that the wheel of a bicycle can easily get caught in
the slots causing the bicyclist to crash." We argued that the City itself had identified the grate as being within the bike lane. We also had case law on our side. In turned out that the City's argument was not novel. The very same position was taken by the City of East Peoria, Illinois more than two decades earlier in Cole v. City of East
Peoria, 201 Ill.App.3d 756, 559 N.E.2d 769 (3rd Dist. 1990). In that matter a child was
injured when she was riding her bicycle on the edge of a road, and the tire of
her bicycle fell through a storm sewer grate with openings parallel to the edge
of the road, just as in our case. The grate at issue then was
located "on the side of the road" between the curb and white stripes
painted four feet from the curb. Cole,
201 Ill.App.3d at 759. The girl's family alleged that the City had a duty to maintain the area free of such hazards and
was negligent for failing to do so. Intially,
the trial court granted the defendant municipality's dismissal motion.
However, the appellate court reversed that ruling stating:
The necessary
factual question of liability is raised here by evidence that (1) the City ordered a white line painted a distance
from the curb (four feet), indicating an intention the area be used by others than those driving
automobiles; (2) the City became aware the area
was being used by many bicyclists; (3) the City became aware that at least one person had been injured locally when
a bicycle tire was caught between similar grates; and (4) the City had become aware that the type of grates
used did not meet then existing standards
and replaced parallel grates when they were damaged. Thus, evidence
was produced that the City
both intended and permitted cyclists to use the four-foot strip; it was foreseeable that the use would continue;
the condition was unsafe. . .
Cole, 201 Ill.App.3d at 761-2 (emphasis added).
The similarities between the Cole case and ours could not be overlooked. As in that case, the City of Chicago placed a single white line the the left of the curb indicating that the area was to be avoided by motor vehicles. The City was also aware of the dangers posed to cyclists by the grate as evidenced by the findings in the 2006 memo. For these additional reasons we urged the Court to deny the City's request for dismissal.
The City's final argument, that the grate was an "open and obvious" hazard, seemed especially cynical. The obvious implication of the City's position was that the crash was the bicyclist's own fault. He wasn't paying attention. We addressed this part of the City's motion in two ways: Firstly, the danger posed by the grate was not open and obvious. Sure, if you looked you could see a grate. But there are thousands of grates throughout Chicago. Most of them are not particularly dangerous for cyclists. However, that the grate at 4738 West Lawrence had very large slots that ran parallel to the direction of bike traffic would not have been obvious to a cyclist. Secondly, under Illinois law, even if a danger is open and obvious if a person is likely to be distracted and therefore not notice the hazard then the defendant cannot escape responsibility. In this case, the bicyclist was indeed distracted by a car which had entered the bike lane. For that reason he was forced to alter his course and his bicycle wheel ended up caught in the grate.
The judge ultimately agreed with our arguments and did not allow the City to avoid its responsibility to compensate our client. We were able to reach resolution of the case, providing our client with the means to pay his outstanding medical bills and compensating him for the considerable pain and suffering he experienced. Sadly, however, the dangerous grate remains in precisely the same condition now as it was in 2006 and 2011. I went out to take a look at it on March 28, 2015 and snapped the following photographs:
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| Approaching the grate cycling west on Lawrence. |
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This photo demonstrates how easily a bicycle wheel
can become wedged in the grate. |
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| The grate swallows my front wheel. |
We proposed making correction of the grate a part of settlement of the case. At first the City's attorneys were amenable to this, but later declined to make the necessary fix.
