The Illinois Supreme Court has ruled Chicago can’t face lawsuits from bicyclists who may have been hurt when their bikes hit potholes on city streets.
The ruling overturned an earlier ruling from a state appeals panel, which had sided with cyclist Clark Alave.
Alave had sued the city in Cook County Circuit Court in October 2019, alleging the city should be held liable for not fixing caused a pothole that four months earlier threw him from his personal bicycle near a Divvy bike rental station at the intersection of West Leland and North Western avenues in Chicago’s Lincoln Square neighborhood.
Michael S. Keating
| keatinglegal.com
Cook County 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 under the law. That, the judge said, meant the city owed no duty to prevent his injuries under the Local Governmental and Governmental Employees Tort Immunity Act.
But in May 2022, an Illinois First District Appellate Court panel reversed that ruling, granting Alave a new chance to press his claims the city should pay for his injuries. That opinion held the placement of Divvy kiosks 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.
After granting the city leave to appeal, on grounds Judge Cleary’s dismissal of the complaint under the Tort Immunity Act was proper, the Supreme Court also allowed lawyers from other groups, including the Active Transportation Alliance, Illinois Trial Lawyers Association and Ride Illinois, to weigh in on Alave’s behalf.
Justice David Overstreet wrote the court’s unanimous opinion, filed Dec. 14.
Overstreet said the court looked at several of its own cases regarding pedestrian and bicycle use of streets, including distinctions between permitted and intended use, and found it had “consistently declined to find municipal intent where there were no affirmative manifestations that designated the subject properties for the uses in question,” such as a pedestrian falling due to a pothole outside a crosswalk or a cyclist whose tires got stick on a bridge plank.
Alave again pointed to the presence of Divvy stations, arguing the conclusions in earlier cases would’ve been different had justices at those times considered a city advertising bike rental or endorsing bike rental near the location of the accidents in question. While the court acknowledged Alave had an accurate timeline, Overstreet wrote “the modern presence of Divvy stations does not alter the fundamentals of our established precedent — it merely incorporates a new factor into the requisite multifactor analysis for determining the intended use of municipal property by looking at the nature of the property involved.”
The city argued it already marks pavement and installs signs to clearly delineate roadway portions intended for cycling. Overstreet said the court agreed courts are allowed to consider other factors that might demonstrate intended property use and said Divvy stations and signs are relevant factors.
“The record reflects that there are no street signs or pavement markings designating the subject roadway as a bicycle lane,” Overstreet wrote. “The surface of the roadway is marked with a painted crosswalk running perpendicularly to the direction plaintiff was traveling. The pothole that plaintiff struck was located at the south end of the crosswalk approximately four feet from the curb. The north end of the crosswalk borders a sidewalk that runs parallel to the subject roadway. A Divvy station is located in a plaza adjacent to and north of the sidewalk, approximately 100 feet from the accident site, along with a Divvy sign advertising bicycle rental. A bicycle rack is situated in the same plaza and sits just east of the Divvy station. The 2019 Chicago Bicycling Map depicts the nearest bicycle lane on Lincoln Avenue, which the city avers is one block from the accident site.”
Although Alave argued a municipal code section established his rights equal to those of a motorist, the court disagreed, citing the distinction between permitted and intended use. While city code imposes on cyclists the same rules of the road as motorists, “this does not mean that the city intended bicyclists to use every roadway in the city that motorists are intended to use.”
That distinction is a key component of applying Tort Immunity Act protections, Overstreet explained, finding state law is clear that governments should be immune from an obligation to prevent injuries resulting from unintended street use. Overstreet further said the appellate panel’s reliance on the Divvy station was “problematic” because it “repeatedly made observations, cited facts, and drew conclusions exceeding” the scope of the area where Alave fell.
Where other Divvy stations are located, or whether the city profits from Divvy rentals, are facts irrelevant to the city’s intended use of one patch of West Leland, the court held, as are broad conclusions about the proximity of Divvy stations to bike lanes allowing an inference that all nearby streets are intended for cycling. A duty to keep roads safe requires “a definitive and limited scope,” Overstreet wrote, counter to Alave’s arguments and the appellate opinion.
The court further held the sidewalk and bike rack near the pothole don’t change the balance of the permitted versus intended use analysis. The court also analyzed the city’s earlier answer to a special interrogatory question, in which it asserted no expectation for cyclists to walk their bike except when in clearly marked cycling lanes. But the court agreed that foreseeing people using bikes on streets isn’t the same as explicitly intending such use.
Attorney Michael S. Keating, who submitted an amicus brief on behalf of Ride Illinois, a cycling advocacy group, issued a statement on the ruling, calling it "disappointing."
“It was disappointing for our state’s highest court to hold a chance to make a dent in the legacy of Boub v. Wayne County and not more broadly recognize bicyclists as not only permitted but intended users of our state’s roadways. The concern in doing so is that the Illinois Supreme Court has ruled that the harsh precedent of bicyclists being ‘permitted but not intended’ users of our roadways will put bicyclists at risk. This holding simply does not reflect that massive surge in bicycling that has occurred in Chicago, the suburbs and throughout the rest of Illinois. On that fact alone I think the Illinois Supreme Court should have clarified more specifically what ‘intended’ means beyond just the presence of bike lanes, a bike map or signs.
“However, one positive takeaway from this is that Illinois’ highest court is obviously willing to take up cases involving bicyclists like they did last month in holding that an insurance company must provide uninsured motorist coverage to a bicyclist. It is important that our advocacy groups and attorneys push these issues in our courtrooms, our city halls and in Springfield. Illinois’ legislature has also taken steps to clarify bicycles as ‘vehicles’ under the Illinois Rules of the Road and to add protections for bicyclists on our roadways. Further protections may have to come from our state’s legislature and not necessarily our courts."