A bicyclist injured when he fell after striking a pothole in a Chicago street won a new chance to press his claims the city should pay for his injuries, as a state appeals panel says the placement of Divvy bike rental stations around the city may poke legal holes in the city's longstanding position that bicyclists can't be considered "permitted or intended users" of city streets.
Clark Alave filed a Cook County lawsuit in October 2019, alleging the city’s negligence caused the pothole that four months earlier threw him from his personal bicycle near a Divvy station at the intersection of West Leland and North Western avenues in Chicago's Lincoln Square Neighborhood. Judge Gerald Cleary granted the city’s motion to dismiss Alave’s complaint, agreeing Alave wasn’t a permitted or intended user of the roadway in question under the law, meaning the city owed no duty to prevent his injuries under the Local Governmental and Governmental Employees Tort Immunity Act.
The First District Appellate Court issued an opinion on Alave’s appeal on May 18. Justice Robert Gordon wrote the opinion; Justices David Ellis and Eileen Burke concurred.
On appeal, Alave argued the factors establishing whether he should be considered a permitted or intended roadway user are sufficiently unclear to allow his case to end with dismissal.
Alave’s amended complaint said he was westbound on the right side of West Leland about 9 p.m. June 8, 2019, when his bike hit a pothole in the crosswalk. As a result he suffered fractured teeth, facial abrasions, scarring and injuries to his left hip and right shoulder. He supplied a picture of the pothole, about four feet from the curb, which Gordon described as “a crater” up to five inches deep, “with an inch or so at the bottom filled with loose gravel and debris.”
The Divvy station was about 100 feet away from the pothole, Alave said, adding city ordinance barred him from riding on the sidewalk. In response to the motion to dismiss, Alave argued bicyclists are pedestrians with respect to crosswalks and said the city admitted in discovery “it does not intend for people to walk their bicycles within city limits, while outside of a bicycle lane,” further establishing his right to ride in that spot.
However, Alave’s appellate brief didn’t renew his “bicyclists are pedestrians” argument, his contention the Tort Immunity Act should include permitted or intended roadway users — not permitted and intended — or his position municipal ordinances dictating bicycle use effectively render cyclists intended users. He forfeited those arguments, though Gordon wrote the panel would address them nonetheless.
The panel said Judge Cleary’s dismissal relied on a reading of a 1998 Illinois Supreme Court opinion, Boub v. Wayne Township, which included a discussion of determining whether a bicyclist is an intended roadway user, and a 2001 Third District Appellate Court opinion in Latimer v. Chicago Park District, which established that ordinances regulating bicycle usage in certain areas don’t make cyclists intended users.
Gordon noted Alave failed to convince the panel it should reject Cleary’s reading of Boub “that a user must be both permitted and intended” for the Tort Immunity Act to create the city’s duty of care.
“Bicyclists are not pedestrians,” Gordon wrote. “Furthermore, Alave was not a user of the crosswalk, as he was crossing it perpendicular to its path while using the roadway as a bicyclist.”
Boub, a 4-3 decision, long predated Divvy stations, the panel said, and Alave built his argument on three positions: asserting Divvy users would have to use the area where he fell to access the rental bikes, the ordinance barring people older than 12 from riding on sidewalks and the city’s response to a question he submitted in discovery asking if the city expects people to walk bicycles whenever they’re not in a designated bike lane.
While none of the three factors alone would establish Alave as an intended roadway user, the panel said, “the combination of the three, plus the street itself, is sufficient to establish intent and thereby establishes a duty on the part of the city.”
Municipal ordinance language also is in Alave’s favor, the panel said, as is the fact the city derives revenue from the rental stations.
“We look at the ordinances of the city of Chicago to construe the city’s intent, and there is no showing that it intended that bicyclists can only be permitted and intended for bicycle lanes only,” Gordon wrote. “We further take judicial notice that many of the Divvy stations in Chicago have no bicycle lanes in close proximity to the Divvy stations, which further shows us that the city intended that bicyclists are intended users of the streets used by bicyclists in going to and from the Divvy stations.”
The city hasn’t expressly prohibited riding bikes in the street near Divvy stations, the panel continued.
“It defies common sense to suggest that the city, when it approved rental stations at a distance from bicycle lanes, intended bicycles to be pushed a great distance before being ridden, the user’s rental period ticking down all the while,” Gordon wrote.
The panel sent the case back to Cook County Circuit Court for further proceedings.