Appellate court affirms dismissal of amended lawsuit over cyclist's death on Aurora bike trail

By Karen Kidd | Jan 30, 2019

A bicyclist peddling on a Fox Valley Park district trail

ELGIN — A state appeals court has declined to revive the fifth try at a lawsuit filed over the 2015 death of a Des Plaines woman who died while bicycling on an Aurora bike trail.

In their 14-page order filed Jan. 14, a three-justice panel of the Illinois Second District Appellate Court found the Fox Valley Park District is immune from liability and that a lower court's dismissal of the fifth amended complaint "was proper."

Second District Appellate Justice Ann Jorgensen wrote the order; Justices Robert Spence and Robert McLaren concurred. The decision was issued as an unpublished order under Supreme Court Rule 23, which limits its use as precedent.

The appellate court handed down its order in the complaint filed by Nancy Saldana under the state's Wrongful Death and Survival Act. Saldana is executor of the estate of the late Lonnie Diane Wilkinson.

Wilkinson, 66, was killed after she failed to yield the right of way Sept. 5, 2015, as she crossed Densmore Road's intersection with the Virgil Gilman Trail in west suburban Aurora, according to the order and a news report at the time published by The Daily Herald. Wilkinson, who suffered a fractured skull, had been wearing a helmet at the time.

The Sugar Grove man driving the vehicle that struck Wilkinson was not charged by police, but was named as a defendant in Saldana's lawsuit, along with the Fox Valley Park District, which maintains the Virgil Gilman bicycle trail in that location.

"There is no dispute that the park district had previously placed a yield sign on the trail for westbound bicycle and pedestrian traffic," the background portion of the order said.

The fifth amended complaint alleged westbound cyclists could not adequately see southbound traffic on Densmore Road "due to overgrown trees, bushes and shrubbery north of the trail," the order said.

In the combined motion to dismiss, the park district argued it owed no duty to provide an unrestricted view from the trail and that Saldana failed to establish willful and wanton conduct on the part of the park district, which rendered the park district immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act. The park district also argued erecting the yield sign instead of a stop sign had been "an exercise of discretion," bolstering its claim to immunity from liability, the order said.

A Kane County judge agreed with the park district's arguments and this past March granted the motion for dismissal.

"Here, the court determined, the park district's discretionary decision to erect a yield sign on the trail, when it was not required to erect any sign, illustrated a conscious regard for the safety of others," the appellate court's order said.

In her appeal, Saldana argued the park district was not entitled to immunity because the state's Municipal Uniform Traffic Control Devices Manual requires the park district determine whether an "unrestricted view" exists at the intersection where Wilkinson suffered her injuries. Saldana also claimed the park district was liable in Wilkinson's death for allegedly failing to inspect trails for potentially hazardous conditions and to remedy those hazards.

However, Saldana also admitted that three days prior to Wilkinson's death the park district trimmed and mowed area around the area where the yield sign previously had been installed at the intersection.

"As such, we conclude that, even if labeled 'willful and wanton,' none of the aforementioned allegations constitute acts or omissions that reflect intention to cause harm or an utter indifference or conscious disregard for the safety of others," the appellate justices said.

According to Kane County court records, the Fox Valley Park District has been represented in the case by attorney Kathryn Anderlik, of the firm of Judge, James & Kujawa, of Park Ridge.

Saldana has been represented by attorney Robert Bingle, of Corboy & Demetrio, of Chicago, Kane County records said.

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Circuit Court of Kane County City of Aurora Corboy & Demetrio Fox Valley Park District Illinois Second District Appellate Court Law Office of Judge James and Kujawa

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