The Illinois Supreme Court has tossed an appellate court decision in a suit, which claimed the Chicago Park District was liable for a bicyclist's injury on the city's Lakefront Trail, saying a Cook County judge was right to declare the district immune from liability, because the trail is a recreational pathway.
The Dec. 29 ruling was laid down by Justice Anne M. Burke, with concurrence from Chief Justice Lloyd Karmeier and justices Charles Freeman, Robert Thomas, Rita Garman and Mary Jane Theis. Justice Thomas Kilbride dissented.
The ruling favored the Chicago Park District in a personal injury suit brought by Isaac Cohen, upending an Illinois First District Appellate Court decision, which, in turn, had overturned a Cook County Circuit Court ruling.
Isaac Cohen was riding a bicycle in July 2013 on the Lakefront Trail near Shedd Aquarium when the front tire of his bike caught in a crack in the concrete pavement. He fell and injured his shoulder, then got back on his bicycle and rode home.
In May 2013, a park district employee received a report of the crack. The employee inspected the crack, decided it needed repair, but did not take immediate steps or mark or barricade the section of the trail in question. The crack was fixed three days after Cohen's fall as part of the district's regular repair schedule.
Cohen sued the park district in May 2014 for not maintaining the trail and causing his injuries.
Cook County Judge William Gomolinski threw out the suit on the grounds the district was immune, under section 3-107(a) of the Illinois Local Governmental and Governmental Employees Tort Immunity Act. The section protects public entities from liability for injuries caused by conditions of a “road which provides access to fishing, hunting, or primitive camping, recreational, or scenic areas.”
Gomolinski also ruled that even if section 3-107(a) did not apply, the district was still in the clear through section 3-106, which strips immunity, if the entity committed “willful and wanton conduct.” Gomolinski found the district had not engaged in such conduct.
Cohen appealed the matter to Illinois First District Appellate Court in Chicago, which unanimously ruled in October 2016 neither section protected the district. The district then asked the Illinois Supreme Court to take it up.
The state high court agreed with the appellate court that 3-107(a) did not carry any weight, but averred 3-106 did immunize the district.
Justice Burke noted: “Cracks and potholes in paved surfaces are an unfortunate but unavoidable reality, particularly in climates such as Chicago's,” but there were no prior injuries on the trail that would have alerted the district the crack represented an “extraordinary risk.” Further, although the district did not immediately repair the crack, the trail was inspected, and that particular crack was put on a repair list.
The district did not engage in “foot-dragging,” much less willful and wanton conduct, in Burke's view.
Justice Kilbride dissented, contending whether the district engaged in willful and wanton conduct is an open question and should be left to a jury, not appellate bodies, to decide.
Cohen has been represented by the firms of Schiff Gorman LLC and Marasa Lewis Ltd., both of Chicago.
The Illinois Trial Lawyers Association filed a friend-of-the-court argument in support of Cohen.