Traveling Second Class

The Illinois Supreme Court tells bicyclists the roads are meant for cars.

By Jeff Balch

In September 1992 Jon Boub was training for a triathlon, racing down Saint Charles Road in rural Du Page County toward the one-lane wooden bridge that crosses the Du Page River. Earlier in the day a township work crew had removed the asphalt filler from between the bridge’s planks, and a rut snagged Boub’s wheel. Badly injured, he sued Wayne Township, which argued in court that it was immune from such a suit–because its duty was to keep the road reasonably safe for motorists, not for bicyclists. (I wrote about the case in the June 19 issue of the Reader.)

The lower court agreed, ruling that bicyclists were permitted to use the roads but weren’t the intended users. Boub appealed and lost again, then appealed to the Illinois supreme court. Four weeks ago, the supreme court ruled four to three against Boub.

Last summer Boub’s lawyer, Richard Hickey, was in the middle of his 20-minute oral argument before the court when Justice Mary Ann McMorrow cut in. “As I understand it,” she said, “the issue here is between ‘intended’ and ‘permitted’ use. My question is about ‘intended’: Is there any clear indication of ‘intended’ use [of the bridge] by bicyclists?”

Hickey answered that the township’s highway commissioner had acknowledged in a deposition that officials were aware that bicyclists frequently used the road and bridge, and he pointed out that a road map approved by the Du Page County Board shows that stretch of the road as “generally suitable for bicycling.” He added that “actions taken after an accident can indicate intent” and noted that the township had closed the bridge right after Boub’s accident. He also asserted that “the burden of proof is on [the defense] to show that bicyclists are not intended users,” and he insisted that if this were true, then other statutes such as the Illinois Bikeway Act and the Illinois Vehicle Code “would have no meaning.”

Ed Dutton, the attorney for Wayne Township, began his oral arguments by emphasizing the potential impact on municipalities. “The case has enormous implications,” he said, “and it’s all about balancing interests.” He asserted that a municipality’s interest–the need for immunity from this kind of lawsuit–should outweigh bicyclists’ interests. “There is liability only if the user is both permitted and intended on the property,” he said. “And [the criterion] is what the local government entity intends.” He noted that there were no road markings that might clearly indicate that bicyclists were intended users of the section of road.

Justice Moses Harrison II interrupted. “Are you concerned that this argument is contrary to [state] statutes granting bicyclists full rights? Surely a local government entity can’t change that.”

“It isn’t the local entity doing the changing,” Dutton answered. “The legislature says–”

“Yes, we’ve read the briefs carefully,” said Harrison, cutting him off.

Justice John Nickels jumped in. “To say bicyclists aren’t intended users seems a bit of a stretch.”

Dutton responded that there could be frequent users other than those intended.

Justice Michael Bilandic questioned whether bicyclists should be compared to pedestrians, but Dutton stuck to his argument that white lines on a roadway indicate where pedestrians and bicyclists are the intended users.

Dutton later argued that Boub’s accident “would be actionable only if the road hazard also posed a threat to motor-vehicle users.”

Justice James Heiple interrupted to pose a hypothetical question: What if the bridge had been removed but no signs had been placed–thereby creating a hazard to any user of the road–and what if a bicyclist had ridden into the river?

Dutton said that the municipality should still not be liable.

Justice McMorrow asked what some of the consequences would be if the court agreed with the plaintiff, and Dutton answered that local public entities would incur “vast obligations.”

In his ten-minute rebuttal Hickey emphasized that there was no evidence a decision in Boub’s favor would create an unreasonable burden for municipalities. “We are not arguing for a perfectly smooth roadway,” he said.

On October 22 justices McMorrow, Bilandic, Benjamin Miller, and Charles Freeman voted against Boub. Justice Miller wrote, “There are no affirmative manifestations here that Wayne Township intended–rather than simply permitted–bicyclists to use the road and bridge where the accident occurred. We have no quarrel with the proposition that bicycle riders are permitted users of the road and bridge involved in this case; we do not believe, however, that they must also be considered intended users of those facilities.” He added, “[Bicycling advocates] argue that granting the defendants immunity would only serve to create a powerful disincentive to the continual upgrading and improvement of bicycle routes in the state….We believe that these questions of public policy, however, are better resolved by the legislative branch of government than by the judicial branch. Indeed, the potential implications of such a shift in policy are substantial and far-reaching….[A ruling in Boub’s favor] would, we believe, open the door to liability for a broad range of pavement conditions, such as potholes, speed bumps, expansion joints, sewer grates, and rocks and gravel, to name but a few.”

Writing for the three dissenting justices, Heiple called the contention that bicyclists aren’t intended users of roadways “absurd and dangerous….The majority’s conclusion that bicyclists are not intended users of roads defies common sense, contravenes statutory authority, and frustrates public policy….Roads are intended to be used primarily by automobiles, but also by bicycles….The accident which befell plaintiff could just as easily have befallen a motorcyclist, but under the majority’s standard, the latter could recover while the former cannot. There is no rational basis for this distinction….Given the majority’s ruling, the only safe bicycle in Illinois is a stationary exercise bike located in one’s home or at the gym.”

“They wrote our press release,” says Randy Neufeld, executive director of the Chicagoland Bicycle Federation. “We agree 100 percent with the dissent, particularly the parts about policy and social implications. As the dissenters note, ‘a loss-averse municipality, in order to minimize its exposure to liability, might remove from its roads any evidence that bicyclists are intended users.’ We do not know of any other state in the country in which local government does not have a duty of care to cyclists. The actual exposure does not appear to be that burdensome–the fact that it took a hundred years for this case to come up in Illinois illustrates that. The main implication of this ruling is that bicyclists will have no recourse if a municipality screws up and a bicyclist is caused harm. They say, ‘Bicyclists need to look where they’re going.’ Well, sure. But sometimes people do things to the road that are inappropriate and dangerous, and liability law helps prevent that–and now we don’t have the protection of that law.”

Dutton was obviously pleased with the ruling. “I was somewhat surprised by the close four-three vote,” he says. “I didn’t expect Harrison or Heiple, but I frankly expected Nickels’s support, as he comes from the Second District [the district from which the case was appealed].” He says he doesn’t believe the decision will discourage municipalities from taking steps such as marking bike lanes. “The only effect will be to [strengthen] the standard of ‘willful and wanton’ rather than simple negligence” if another bicyclist were to sue. “Since bikes are recreational, that standard should apply.”

What about bicyclists who are commuting to work?

“The recreational standard should still apply,” Dutton says, “because of the bicycle’s inherent nature.”

After the ruling Hickey released a statement. “Here it appears obvious that the majority decided the outcome and reasoned backwards,” he wrote. “Regardless of the motivation, this is a dark day for Illinois law. Anyone who reads this opinion will have to tell their children that when they ride their bikes to the park, to school, or anywhere else, local government entities can harm them by being negligent–or even with willful and wanton action or gross disregard. I have trouble believing that that is good law in Illinois.”

Art accompanying story in printed newspaper (not available in this archive): Jon Boub photo by Randy Tunnell.