City Tries to Avoid Liability by Calling Bike Lanes “Recreational Property”

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The crash site at 1124 North Damen. Image: Google Street View

At a hearing in the Circuit Court of Cook County last week, a judge denied a motion by the city of Chicago’s law department to dismiss a lawsuit by a female bicyclist who was seriously injured after she struck a hole in one of the Damen bike lanes. The law department argued that the bike lane is “recreational property” and, as such, the city should have limited liability. The plaintiff’s attorney, Brendan Kevenides from FK Law (a Streetsblog Chicago sponsor) argues that if the judge had accepted this reasoning, it would have set a dangerous precedent for local cyclists.

According to the lawsuit, on September 5, 2014, Kirstie Shanley was riding her bike near 1124 North Damen in Ukrainian Village when she struck a sinkhole, which was hard to see because it was filled with water and obscured by a puddle. Shanley, now a 35-year-old occupational therapist, was thrown over her handlebars and suffered significant facial injuries, including broken teeth and bad scarring, Kevenides said.

Following the crash, Shanley called local alderman Scott Waguespack’s office.  She told them what happened and that she planned to hire an attorney. Soon afterwards, the hole was fixed.  

Prior to the crash, someone had circled the hole with red spray paint, which indicated that the city was aware of the hole, according to Kevenides. “Who else would have marked that?” he said. “Of course the city is not responsible for keeping bike lanes in pristine condition – that would be impossible. But they should be held responsible for for failing to repair hazards in bike lanes that they’re aware of, or should be aware of.” Shanley is suing the city for more than $50,000.

Last fall, the law department filed the motion to dismiss, arguing that “the bike lane where Plaintiff claims she fell is recreational property for which the city has tort immunity.” The city cited Section 3-106 of the Tort Immunity Act [emphasis added in the motion]:

Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury.

The law department therefore claimed that, since the city hadn’t willfully or wantonly neglected the maintenance of the bike lane, the suit was invalid.

Law department spokesman Bill McCaffrey told me the department feels Kevenides has mischaracterized its actions. McCaffrey did not provide a full statement on the issue by press time. If they provide a statement, I’ll update this post.

Perspective of bike lane with hole and arrow leading right to it
The sinkhole, almost a foot long, was ringed with red spraypaint. Photo: FK Law

Kevenides told me that bike lanes being classified as recreational facilities would have profound consequences for cyclists. “It would completely immunize the city for any negligence in the way it maintains its bike lanes.

He said the city was trying to take advantage of “recreational immunity,” where a municipality is not liable for negligence in the upkeep of equipment in a recreational area, unless a reckless disregard for the safety of other was demonstrated. Since “willful and wanton conduct” is almost as bad as neglecting maintenance with the intent of injuring people, classifying bike lanes as recreational property would make it much harder for injured cyclists to collect damages, and give the city less incentive to maintain the lanes, Kevenides said.

He argued that the city was essentially trying to extend the notorious Boub versus Township of Wayne ruling, made by the Illinois Supreme Court in 1998. In this case, cyclist John Boub had sued the township after his front wheel got stuck in a gap between bridge planks, throwing him from the bike and causing severe injuries.

This court ruled that cyclists are “permitted” rather than “intended” users of Illinois roadways and, as such, municipalities aren’t responsible for maintaining roads in a manner that is safe for biking. However, according to Kevenides, municipalities are still liable for injuries to cyclists that occur on a marked or signed bike route due to maintenance issues.

“For the law department to claim that bike lanes are simply areas for recreating is a slap in the face to Chicago cyclists, and it seems contrary to the Chicago Department of Transportation’s efforts to encourage the use of bike lanes for transportation,” Kevenides said. “I think the law department is dictating to CDOT, ‘Hey, this is a way we can save some money.’ It’s contrary to CDOT’s message that bikes are a form of transportation, not just toys.

Notably, in June of 2014, three months before Shanley’s crash, the city’s finance committee approved a $1.5 million settlement to a cyclist who was seriously injured in a similar crash in a bike lane on Damen at Wabansia Street, only 5 blocks north of where the recent crash occurred. In 2009, Brian Baker, 23, was permanently disabled after he rode into a collapsed catch basin within the bike lane. The city had two months notice of the condition and had scheduled repairs, but a barricade that should have been in front of the hole was actually in the hole, where it was difficult to see, and the barricade’s light wasn’t working.

Kevenides said the next steps in Shanley’s case are discovery and deposition, and preparing the case for trial. Read his blog post about the city’s recent legal maneuver here.

  • kastigar

    If the city is held fully responsible for street damage in the bike lanes this will put cold water on maintaining or building new bike lanes.

    I’d favor bike lanes over more lawsuits.

  • Brendan Kevenides

    Bob, I have to disagree. The goal is not simply more bike lanes, but a network of bike lanes in which it is actually safe to ride. If the city has no financial incentive to reasonably maintain the our bike infrastructure it simply will not do so.

  • I agree with Brendan. This is hardly “full responsibility,” this is a case where the pavement was in such bad shape that it had been flagged but then the repair did not happen.

    If bike lanes become exempt from this kind of common sense application of liability law I predict that they will become a workaround for the City to avoid routine road maintenance. I can see it now… the City slaps down a few thermoplastic images of bikes on every major roadway, and then claims that they have no accountability for even the most egregious sinkholes and other problems.

    Elston – once the crown jewel of the North Side’s bike path system – is in such bad shape I can’t believe more people haven’t been injured. Belmont crossing the river has had holes in it big enough to bury a cat in for years. The City needs to step up.

  • BlueFairlane

    But this financial incentive to get the city to maintain the bike lane also could convince the city to simply not build the bike lane, avoiding the risk completely.

  • rohmen

    The Boub decision has been on the books since 1998, and is well understood by City lawyers and *presumably* by the City itself. In other words, the City has always been aware that it could avoid liability by simply just not building infrastructure for cyclists, and it went ahead and built it anyway.

    Unless something comes out that this decision was specifically driven by a spike in cyclist-related injuries and associated pay-outs to those injured, I’d wager this is just the law department getting a little too cute in a test case to see if the idea had legs. If the city sees a chance to limit its liability, it’s going to take it. But whether to build bike lanes is a political decision, and I just don’t see the associated uptick in liability the city is taking on by building them changing Rahm’s direction on the issue any time soon.

  • rohmen

    As a cyclist, I disagree with the idea that poorly-maintained or designed bicycle lanes are better than nothing.

    As we push for the construction of more and more protected bike lanes, which in turn means cyclists will be expected to ride on those lanes, we have to make sure they’re actually safe to use. This is especially true when the whole idea behind such lanes in the first place is that they get people out cycling who otherwise wouldn’t given the perceived dangers involved. Speaking for myself as a cyclist, the one time I have been seriously injured when riding in the city occurred because of a road defect (on a road notorious for injuries without a bike lane or cycling markers, so no recourse), not because of my interactions with cars.

  • AdamReynolds

    Protected bike lanes (ones that exclude cars/trucks, should have a lifetime that can be measured in decades. Paint on road cycle lanes that a truck can drive in will get damaged by the weight of the trucks. I would suggest that the argument should be to create protected cycle tracks as these reduce longterm maintenance costs.

  • 1LelaG

    If your State laws on Transportation, record the bicycle as a Vehicle, there will be no hope for Chicago to wiggle out of its responsibility and liability.
    Otherwise, the car-traffic lanes can also be recorded as recreational property.

  • Anne A

    Are you aware of the infamous Boub decision? That is the elephant in the room here. http://www.chicagoreader.com/chicago/bikers-update-boub-reconsidered/Content?oid=904952

  • 1LelaG

    No, but I just read the article. But this is the point I made about the bicycle being considered a Vehicle by Law. And I see it is not so, in Illinois…

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