If I were to ever get injured as a result of an unpaved pothole, municipalities will not be held accountable for my injuries caused by the bicycle accident according to a recent decision.
As an avid bike user, I usually store my bike in a friend’s garage or exit through the backs of buildings that bring me into the alleyway. If I were to ever get injured as a result of an unpaved pothole, municipalities will not be held accountable for my injuries caused by the bicycle accident according to a recent decision by the Appellate Court of Illinois.
On September 27, 2013, the Appellate Court of Illinois held that bicyclists are permitted but not intended users of alleys and, thus, municipalities are not liable for failing to maintain the alleys. In Berz v. City of Evanston, the plaintiff was injured when he struck a “pothole measuring 40 inches wide, 18 inches in length, and at least 4 to 5 inches deep” while riding in an alley in Evanston, Illinois. 2013 IL App (1st) 123763. The plaintiff claimed that Evanston was negligent and therefore liable for his injuries. However, the Appellate Court held that the Tort Immunity Act (745 ILCS 10/3/-201(a) (West 2010)) granted immunity to Evanston because the plaintiff was not an intended user of the alley as a bicyclist. The court added that alleys are intended for vehicles and that a bicycle does not qualify as a vehicle. Although construction sites are not intended for bicyclists there negligence by a construction worker is responsible for accidents caused by their negligence in causing bicycle accidents.
The Tort Immunity Act provides:
“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” (Emphasis added.)
745 ILCS 10/3-102(a) (West 2010).
A municipality only owes a duty to intended AND permitted users. According to the court, bicyclists are only permitted users of alleys and therefore municipalities do not owe them a duty of care.
The ruling in this case expands an earlier ruling by the Illinois Supreme Court in Boub v. Township of Wayne where it held that bicyclists are not intended users of roadways, alleys, etc. unless they were specifically intended for bicyclists. 183 Ill.2d 520, 702 N.E.2d 535 (Ill. 1998). In order to determine the intended use of an alley, the Illinois Supreme Court has routinely instructed that it is necessary to look at “pavement markings, signs or other physical manifestations” indicating that bicyclists are intended users of the alley. Id. at 528.
It is discouraging that Illinois law protects vehicles more than it protects bicyclists, who are more vulnerable to pot holes and other road deformities. Furthermore, the Illinois Supreme Court has failed to provide clear instruction as to what qualifies as “reasonably foreseeable” that alleys would be used by bicyclists if they lack markings or signs. The legislature owes the biking community a more through distinction and guidance on what qualifies as reasonably foreseeable. For those of us who store our bicycles in our garages that exit into alleys, we’ll have to find a way to walk our bikes through our homes and exit out of the front to an area where we would be an intended user. As a bicyclist I feel that this is a violation of citizen’s bicycle rights.