Biker’s Update: Boub Reconsidered

By Jeff Balch

On October 22, 1998, bicyclists in Illinois lost one of their basic rights. “On my way to the office that morning, if I’d ridden into a sewer hole and gotten badly hurt I had a chance of being protected by liability law,” says Randy Neufeld, director of the Chicagoland Bicycle Federation. “By the time I headed home, I didn’t have that protection anymore.”

That day, by a vote of four to three, the Illinois Supreme Court ruled against Jon Boub (a case I wrote about for the Reader in 1998, on June 19 and November 20). In 1992 Boub, a former triathlete, rode his bicycle onto a wooden bridge in western Du Page County after a work crew had removed the asphalt filler, leaving inch-wide gaps between the bridge’s planks but not posting any signs warning of the hazard. Boub’s wheel jammed in one of the gaps, and he was thrown off his bike and severely injured.

Until then, bicyclists had been able to recover damages from negligent local governments, so Boub sued, asking that his medical bills be covered. Wayne Township fought him all the way to the state supreme court, arguing that under the Illinois Tort Immunity Act bicyclists were only permitted users of ordinary roads, not intended users, and therefore local governments had no responsibility to consider them when maintaining roads. The court bought that argument, stating, “Highways, streets, roads and bridges in Illinois are primarily designed and intended for use by vehicles, and not by bicycles.”

“There aren’t many cases of bicyclists suing because of bad road conditions,” Neufeld pointed out afterward. “But sometimes a government agency does something to a road that’s just inappropriate and dangerous, and liability law helps protect against that. Bicyclists, like motorists, need that. The three dissenting justices got it right when they emphasized that if the law protects a motorist hurt by a certain hazard, it should protect a bicyclist hurt by the same hazard.”

Neufeld’s concerns about the ramifications of the decision were quickly justified. “The Boub decision has had awful consequences in terms of public policy,” he says. “Across the state, municipalities have shelved bike-path projects. As CBF pointed out in its amicus brief, the courts created a disincentive to accommodate bicyclists at all–why should a government agency paint lines or put up signs if in doing so it forfeits its immunity?”

The supreme court had acknowledged this possibility in its opinion. But it asserted that such “questions of public policy are better resolved by the legislative branch of government than by the judicial branch.”

So for two years Neufeld and other bicycling advocates pushed for a legislative remedy, but they kept running up against the municipalities’ lobbyists. “The Illinois Municipal League and [other municipal organizations] have struck fear into legislators’ hearts,” he says. “They’ve argued it would break the bank to make the roads safe for bicyclists.” Last year the proposed legislation didn’t even make it out of committee.

This year the senate’s Bicycle Safety Restoration Act (SB1014), sponsored by Elgin Republican Steve Rauschenberger, has been rewritten to take the municipalities’ concerns into account. It grants bicyclists “intended and permitted” status on roads, though governments retain immunity in the case of an injury caused by conditions “hazardous only to a person riding a bicycle.” It also reduces the level of liability protection for bicyclists on signed routes, which removes the disincentive to create such routes.

Neufeld testified before the senate judiciary committee on March 6. “I said that we had listened to opponents’ concerns and made reasonable changes, that the proposed bill would not prove burdensome to local governments, and that the liability disincentive of current law was demonstrably increasing road hazards and slowing completion of the Grand Illinois Trail and other projects. The committee listened closely, partly because legislators have received lots of phone calls and letters from bicyclists still outraged by the Boub decision. Senator [Carl] Hawkinson, the committee chair, agreed that the Boub problem had to be fixed.”

The senate is supposed to vote on the bill this coming week, and then the house will have to vote on companion legislation. Neufeld is optimistic. “The big question here,” he says, “is whether bicycling is regarded as having value in Illinois, and if so, whether government is willing to take some responsibility for it.”