A bicyclist who injured himself in a Lakefront Trail fall will
get another day in court in his complaint targeting the Chicago Park District
for failing to fix a crack in the pavement he said caused his spill.
The Illinois First District Appellate Court issued an
opinion Oct. 27 reversing the judgment of Cook County Circuit Judge William E.
Gomolinksi. Justice Eileen O’Neill Burke wrote the opinion; Justices Margaret McBride
and Nathaniel R. Howse Jr. concurred.
Isaac Cohen crashed his bike July 2013 while riding south on
the Lakefront Trail near Shedd Aquarium. He reports he veered toward the center
of the trail to avoid a pedestrian, at which point a bike wheel got caught in a
concrete crack estimated at three or four feet long, two to three inches deep
and three to four inches wide. He said the crack was repaired by his next ride
a week later.
He eventually filed a lawsuit alleging the Chicago Park
District “engaged in willful and wanton conduct by failing to repair” the
crack. However, in July 2015 Gomolinksi determined the Park District was immune
from liability under the Local Governmental and Governmental Employees Tort
Immunity Act, which grants absolute immunity to local entities for injuries
caused by a condition of a “road which provides access to fishing, hunting or
primitive camping, recreational or scenic areas.” He further ruled the Park
District did not display willful and wanton conduct, which afforded it immunity
protection under a different section of the law.
Cohen filed a motion to reconsider in August 2015. After
Gomolinksi denied that motion, Cohen appealed the ruling, arguing the Lakefront
Trail should not be seen as the type of road that qualifies for immunity under that
According to Burke’s opinion, the key word in the law is
“primitive.” Cohen contended the adjective applies for roads that service
primitive camping, recreational or scenic areas — implying the recreational and
scenic areas the Lakefront Trail serves are not primitive — while the Park
District argued primitive only refers to campsites, to which the Trail provides
Burke said the appellate justices found the law’s language
regarding trails to be ambiguous and, in analyzing a variety of cases, reasoned
the determining factor should be the development of the surrounding area. Since
the Lakefront Trail does not serve “primitive, undeveloped recreational areas,”
Gomolinksi erred in determining immunity was afforded under the law, the
“It makes sense that the legislature would relieve a public
entity from maintaining access roads to primitive scenic and recreational areas
because maintaining those roads would defeat the purpose of the primitive
property, i.e., its enjoyment in its natural state,” Burke wrote.
The parties also differed over whether the trail constitutes
an access road or a recreational property, the latter of which would make it ineligible
for protection under section 3-106 of the same immunity law. But Burke wrote it
did not need to consider those arguments or whether the two sections of the law
The justices also considered whether summary judgment was
proper under section 3-106, which provides immunity only for negligent conduct.
Both sides agreed on which law should be used to determine if the Park
District’s conduct was negligible or rose to the level of willful and wanton.
Ultimately, the justices said the question rested on whether
the Park District’s “efforts demonstrated utter indifference to or conscious
disregard for patrons’ safety in light of the evidence that the Park District
failed to warn patrons of the defect, barricade the defect or expedite the
repair process, despite the defect having been recognized as dangerous and in
need of emergency repair” was a matter of fact to be determined at jury trial.
The justice reversed Gomolinksi’s decision and remanded the
case back to circuit court for further proceedings.
Cohen was represented in the action by attorneys with the
firm of Schiff Gorman LLC, of Chicago.
The Chicago Park District was represented by the district’s
Law Department, according to Cook County court records.