Latimer v. Chicago Park Dist.

• Decision Date: 12 June 2001
• Docket Number: No. 1-99-0781.,1-99-0781.
• Parties: Donnita LATIMER, Plaintiff-Appellant, v. The CHICAGO PARK DISTRICT, a Municipal Corporation, Defendant (The City of Chicago, a Municipal Corporation, Defendant-Appellee).
• Court: United States Appellate Court of Illinois

752 N.E.2d 1161

323 Ill. App.3d 466

256 Ill.Dec. 919

Donnita LATIMER, Plaintiff-Appellant, v. The CHICAGO PARK DISTRICT, a Municipal Corporation, Defendant (The City of Chicago, a Municipal Corporation, Defendant-Appellee).

No. 1-99-0781.

Appellate Court of Illinois, First District, Second Division.

June 12, 2001.

Clifford Law Offices, Chicago (Robert A. Clifford, Timothy P. Rhatigan and Robert P. Sheridan, of counsel), for Appellant.

Mara S. Georges, Corporation Counsel of the City of Chicago, Chicago (Lawrence Rosenthal, Deputy Corporation Counsel, Benna Ruth Solomon, Chief Assistant Corporation Counsel, and Joseph H. Kim, Assistant Corporation Counsel, of counsel), for Appellee.

Presiding Justice CAHILL delivered the opinion of the court:

Plaintiff Donnita Latimer brought this negligence action against defendant, the City of Chicago, seeking damages for injuries she sustained in a bicycle accident on a Chicago street. The circuit court granted defendant's motion for summary judgment, finding that plaintiff was a permitted but not intended user of the street. On appeal, plaintiff contends that the trial court erred in ruling that defendant was immune from liability under section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-101 et seq. (West 1998)).

The complaint alleged that on October 7, 1993, plaintiff was injured when she fell from her bicycle on a part of Clyde Avenue where the pavement was broken and uneven. Plaintiff alleged that defendant had negligently maintained the street where she fell. Plaintiff does not dispute that the accident happened at a place on the street where there were no bicycle lane markings.

A complaint for negligence must establish that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the plaintiff sustained an injury proximately caused by the breach. Marshall v. City of Centralia, 143 Ill.2d 1, 6, 155 Ill.Dec. 802, 570 N.E.2d 315 (1991). Whether the defendant owes a duty of care to the plaintiff is a question of law. Marshall, 143 Ill.2d at 6, 155 Ill.Dec. 802, 570 N.E.2d 315. Summary judgment is appropriate if the pleadings, depositions, and admissions on file, together with affidavits, present no genuine issue of material fact and show the moving party is entitled to judgment as a matter of law. Wallace v. Metropolitan Pier & Exposition Authority, 302 Ill.App.3d 573, 576, 236 Ill.Dec. 295, 707 N.E.2d 140 (1998). Motions for summary judgment are reviewed de novo. Wallace, 302 Ill. App.3d at 576,

236 Ill.Dec. 295,

707 N.E.2d 140.

The duty of a municipality to maintain property is limited by section 3-102 of the Tort Immunity Act. Vaughn v. City of West Frankfort, 166 Ill.2d 155, 158, 209 Ill.Dec. 667, 651 N.E.2d 1115 (1995). Under section 3 102(a), a municipality must "exercise ordinary care to maintain its property in a reasonably safe condition for the use * * * of people whom the entity intended and permitted to use the property." 745 ILCS 10/3-102(a) (West 1998). The duty extends only to uses that are both permitted and intended. Vaughn, 166 Ill.2d at 160,209 Ill.Dec. 667,651 N.E.2d 1115. The duty of care is determined by the municipality's intended use of a property, not the intent of the user. Wojdyla v. City of Park Ridge, 148 Ill.2d 417, 425-26, 170 Ill.Dec. 418, 592 N.E.2d 1098 (1992). To hold otherwise would negate section 3-102(a), as the use intended by the municipality would not control. Wojdyla, 148 Ill.2d at 425, 170 Ill.Dec. 418, 592 N.E.2d 1098. The intended use of the property may be determined by looking to the nature of the property. Wojdyla, 148 Ill.2d at 426,170 Ill.Dec. 418,592 N.E.2d 1098.

The issue whether bicyclists are intended or permitted users of Illinois streets was examined by the Illinois Supreme Court in Boub v. Township of Wayne, 183 Ill.2d 520, 234 Ill.Dec. 195, 702 N.E.2d 535 (1998). In Boub, the plaintiff was cycling across a bridge when the front tire of his bicycle became stuck between two wooden planks of the bridge. The plaintiff was thrown from the bicycle and injured. The plaintiff and amici argued on several grounds that the plaintiff was an intended user of the road and bridge where his accident occurred.

First, the plaintiff cited section 11-1502 of the Illinois Vehicle Code, which provides that bicyclists riding on streets possess all the rights and are subject to all the duties applicable to vehicle drivers. 625 ILCS 5/11-1502 (West 1998). According to the plaintiff, this section supports the conclusion that bicyclists are, like vehicle drivers, intended and permitted users of Illinois streets. The supreme court found such a conclusion unsupported by section 11-1502 and found instead that the provision was designed to ensure that bicyclists obey traffic laws, for their own safety and for the safety of others. Boub, 183 Ill.2d at 529-30, 234 Ill.Dec. 195, 702 N.E.2d 535.

Next, amici argued that because bicyclists' use of the roads is both customary and traditional, it must also be both permitted and intended. The supreme court found that historical practice alone is insufficient to establish whether a particular use of public property is an intended one. Boub, 183 Ill.2d at 531, 234 Ill.Dec. 195, 702 N.E.2d 535. Third, amici observed that the portion of the road where the accident happened was designated "a through street generally suitable for bicycling" by the DuPage County board. Boub, 183 Ill.2d at 532, 234 Ill.Dec. 195, 702 N.E.2d 535. The supreme court found that such designation was consistent with the conclusion that bicyclists were not intended but merely permitted users of the road. Boub, 183 Ill.2d at 532, 234 Ill.Dec. 195, 702 N.E.2d 535.

Fourth, the plaintiff argued that to hold that bicyclists are permitted but not intended users of streets is inconsistent with the holding in Molway v. City of Chicago, 239 Ill. 486, 88 N.E. 485 (1909). The supreme court concluded that because Molway was decided more than 50 years before the Tort Immunity Act was enacted, Molway was not controlling. Boub, 183 Ill.2d at 533-34, 234 Ill.Dec. 195, 702 N.E.2d 535. Fifth, the plaintiff argued that to hold that bicyclists are permitted but not intended users of Illinois streets conflicts with the holdings of Filipetto v. Village of Wilmette, 254 Ill.App.3d 461, 193 Ill.Dec. 901, 627 N.E.2d 60 (1993), and Bauer v. H.H. Hall Construction Co., 140 Ill.App.3d 1025, 95 Ill.Dec. 79, 489 N.E.2d 31 (1986). The supreme court found that neither of these cases discussed the plaintiff bicyclist's status as an intended and permitted user, and therefore neither case was persuasive. Boub, 183 Ill.2d at 534, 234 Ill.Dec. 195, 702 N.E.2d 535.

Finally, amici invoked several policy considerations in favor of imposing liability on the defendant. The supreme court stated that the questions of policy raised by amici are better resolved by the legislative branch of government than by the judicial branch. Boub, 183 Ill.2d at 535, 234 Ill.Dec. 195, 702 N.E.2d 535.

Citing Wojdyla, Vaughn v. City of West Frankfort, 166 Ill.2d 155, 209 Ill.Dec. 667, 651 N.E.2d 1115 (1995), and Sisk v. Williamson County, 167 Ill.2d 343, 212 Ill. Dec. 558, 657 N.E.2d 903 (1995), the Boub

court looked to the nature of the property to determine whether the plaintiff was an intended and permitted user of the road and bridge where he was injured. The court reasoned that the intent of the defendant, Wayne Township, could be determined from "pavement markings, signs, and other physical manifestations of the intended use of the property." Boub, 183 Ill.2d at 528,234 Ill.Dec. 195,702 N.E.2d 535. The court found that there were no signs or markings to indicate that bicyclists, like motorists, were intended to ride on the road or bridge. Therefore, the court held that the plaintiff was not an intended user and was not entitled to recover damages under the Tort Immunity Act. Boub, 183 Ill.2d at 535-36,234 Ill. Dec. 195,702 N.E.2d 535.

To clarify its holding, the supreme court in Boub distinguished the facts before it from those of Cole v. City of East Peoria, 201 Ill.App.3d 756, 147 Ill.Dec. 429, 559 N.E.2d 769 (1990). There, the plaintiff, a bicyclist, was injured when his tire became stuck in a sewer grate. The appellate court concluded that special pavement markings showed that the defendant municipality intended and permitted bicyclists to travel where the accident happened. Therefore, the municipality was liable for the plaintiff's injuries. The distinction between Boub and Cole was the presence or absence of special markings or signs to show the municipality's intent with regard to bicyclists' use of the property. Boub, 183 Ill.2d at 528, 234 Ill.Dec. 195, 702 N.E.2d 535.

Here, as in Boub, the street where plaintiff was injured was not marked or signed to reveal an intent on the part of the city that plaintiff ride her bicycle there. But plaintiff argues that the absence of pavement markings or signs where the accident happened does not dispose of her claim. She argues that certain parts of the Chicago Municipal Code (the Code) show that defendant intended bicyclists to use city streets. Although Boub discussed the Illinois Vehicle Code (625 ILCS 5/1 et seq. (West 1998)), the court recognized that under the Tort Immunity Act, the intent of the local public entity controls. Boub, 183 Ill.2d at 529, 234 Ill. Dec. 195, 702 N.E.2d 535.

Plaintiff's first argument under the Code is based upon the definitions of "street" and "traffic." Under the Code, a "street" is defined as "the entire width between boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of general traffic circulation." Chicago Municipal Code § 9-4-010 (eff. January 1, 1997). The Code defines "traffic" as "pedestrians, ridden or herded animals, bicycles, vehicles, and other conveyances * * * while using any public way for the purposes of...