Illinois court expands a city’s liability to injured bicyclists

While cyclists in Chicago facing blocked bike lanes and dangerous drivers may feel like second-class citizens every day, it is perhaps surprising that, under current Illinois law, they actually are.  Local governments  – municipalities, townships, and counties –  have an obligation to maintain roads in a condition that is safe to drive on, but have no such obligation to people biking.

But a court ruling last week lays the groundwork to narrow that gap in treatment, expanding the duty of care to cyclists from only marked bike lanes to also include regular streets near bikeshare stations—and possibly other city-installed bike infrastructure too.

Background on the 1998 Illinois Supreme Court ruling

Before diving in, let’s understand where the case law stood before last week.

In general, municipalities are required to maintain their roadways in a condition that is safe for use by “permitted and intended” users.  If they don’t, and you get injured as a result, you can sue them and have a decent chance at winning.

Under a 1998 Illinois Supreme Court decision called Boub v. Township of Wayne, it was decided that on a typical Illinois road that is not a signed bike route and has no bike lanes, cyclists are “permitted, but not intended” road users.  Therefore, while it’s legal to bike on the road, under this ruling the municipality or township does not have a legal obligation to maintain a road that is safe for cyclists.

For 24 years, Illinois cyclists have not been able to hold local governments liable for injuries caused by roads in poor condition, unless they happen to be in a bike lane or other signed bikeway.

Brendan Kevenides, an attorney with FK Law Illinois, which represents bicyclists involved in crashes, said, "It’s impossible to know how many bicyclists have been negatively impacted by Boub. Based on that ruling many attorneys, ourselves included, turned away cases in which a bicyclist was injured by a hazard outside of a bike lane because the municipality responsible for maintenance was immune under its holding. Boub’s impact has been to discourage some municipalities from installing bike infrastructure."

Last week's court ruling

Now we come to June 2019, when Clark Alave fell off his personal bike after hitting a pothole at the corner of Leland and Western, allegedly suffering “fractured teeth, facial cuts, scarring, injury to his left hip, and injury to his right shoulder”.  He sued the City of Chicago for failing to maintain the roadway. (The image above was provided by Erron Fisher, Alave's attorney, and shows the pothole that Alave hit.)

The City successfully argued to have the suit dismissed under the standard set forth in Boub v. Township of Wayne, claiming that, since neither Leland nor Western are signed bikeways nor do they have painted bike lanes, Alave was a permitted but not intended user of that road segment.

Alave appealed, and last week the appeals court issued a ruling saying the original suit was dismissed incorrectly and that the lower court needs to consider some more information first.

The First District Appellate Court’s decision in Alave v. City of Chicago hinges on three facts that work together in concert:

1. Chicago has an ordinance that broadly prohibits people over 12 from riding on the sidewalk in most circumstances. 
2. The City’s admission in a court briefing that “it is not the City’s expectation that persons using bicycles will walk their bicycles at all points when not in a designated bicycle lane.”
3. The City’s placement of a Divvy station at this location, an intersection of two streets neither of which has bike lanes or other dedicated bike facilities

The logic built on these three facts runs like this: The City definitely intends people to rent bikes from the Divvy bike share station—that’s not just permitted, it’s clearly intended.  And the City clearly doesn’t intend for people to bike away from the Divvy station on the sidewalk—in fact, they prohibit that entirely.  Furthermore, the City doesn’t expect people to walk their bikes, perhaps miles, to the nearest designated bikeway—they admitted as much to the court.

Therefore the court can only conclude that the City in fact intends people to bike to and from the Divvy station on this segment of roadway, at least to reach the nearest bike lane.  And—perhaps the most surprising part of the ruling—if it’s intended for biking on using a Divvy bike, then this applies also to privately owned bikes as well.

As the court’s opinion reads, “None of these three factors alone would be sufficient to establish plaintiff as an intended user of the roadway on which his accident occurred. However, the combination of the three…show an implied intent by the city that the plaintiff was a permitted and intended user of the roadway on which he was traveling.”

The court did not appear to address the Chicago code that was modified in April 2019, two months before Alave's crash, to permit sidewalk riding if it "is used to enter the nearest roadway, intersection, or designated bicycle path, or to access a bicycle share station" (9-52-020).

With last week’s decision, the dismissal is reversed and the case goes back to continue its way through the lower court.  Alave still has to prove the facts, win the case, and show the damages.

For the time being, Erron Fisher, the attorney representing Alave, said, “We are pleased with the Court's well-reasoned opinion.  From the onset of this case, it seemed disingenuous that the City of Chicago was earning income from a Divvy bicycle rental station…while at the same time arguing that there was no intent that bikes are ridden on the roadway.  It is our hope that this order makes the roadways safer for everybody on 2 wheels.”

What this could mean for the future

Michael Keating, a lawyer who works on bike injury cases in Chicago but was not involved with the current case, said the ruling is “an important legal development in expanding the rights of cyclists in Chicago.”

Ed. note: Keating Law Firm and FK Law Illinois are sponsors of Streetsblog Chicago but do not influence the editorial decisions and not reviewed this article before publication. 

While the case in question is about Divvy stations, and the court only carved out a “narrow exception to areas on streets where bicyclists go to and from Divvy stations,” this could be the first crack in the floodgates.  For example, the court did not address non-Divvy bike infrastructure like bike racks, but Keating went on to say it is “legally and logically consistent that any roadway near a city-installed bike rack…will fall under this ruling.”  Since CDOT maintains over 14,500 bike racks in addition to over 600 Divvy stations, this could expand the City’s duty to cyclists to hundreds of more miles of roadway.

Kevenides said that the court’s decision “seems to me to try hard to grapple with the inherent absurdity of Boub,” and “seems clearly at odds with Boub though it does not, and cannot, overrule that decision.”

Kevenides recently won a case where a cyclist was injured by a damaged flexipost in the buffer between the bike lane and the main roadway.  In that case, the City also argued that the case should be dismissed under Boub since cyclists are not intended to ride in the buffer zone. The court disagreed, and a jury found in favor of his client.  The City has told him they plan to appeal that case, but Kevenides says that, in light of last week’s Alave ruling, they will have a “tough time overturning the jury’s verdict on these grounds”.

Keating anticipates the City will appeal the Alave ruling to the Illinois Supreme Court.

If that happens and the court hears the case, they could go one of three ways:

1. They could simply overturn the appellate court’s ruling, saying that roads near Divvy stations are no different than other roads.
2. They could simply uphold the narrow ruling, saying that a city placing a bikeshare station near a road indicates that cyclists are intended users.
3. They could significantly expand the exception identified by the appellate court, or even overturn Boub entirely.

Asked if the City would appeal, Kristen Cabanban, a spokesperson for the City’s Law Department, said, “The Department of Law is reviewing the court’s decision and is assessing next steps.”

The justices in the Boub case were pretty evenly divided, and the final vote was 4 to 3.  The dissenting opinion called the ruling “absurd and dangerous”, saying it “defies common sense, contravenes statutory authority, and frustrates public policy.”

And that was in 1998.  Cities all over the state are encouraging more cycling to reduce traffic and fight climate change.  It’s hard to square these active campaigns with Boub’s underlying assumption that local governments don’t intend for people to bike on their streets.

If it does go to the Illinois Supreme Court, Keating said they “will have to face the categoric shift in how and where bicycles are used in Chicago since 1992 [when the Boub crash took place]. It is an entirely new landscape.”

Kevenides said that “given the first district’s barely concealed doubt about the Boub ruling, and the enormous growth and commitment to cycling throughout Illinois since 1998, the time may be right now to see Boub fall by the wayside.”