Tuesday, April 27, 2010

Illinois Municipalities' Overreaction to Liability Concerns Slows Progress On Bicycle Safe Roadways

America's roads were paved for the benefit and at the behest of bicyclists. "The Good Roads Movement was founded in May 1880, when bicycle enthusiasts, riding clubs and manufacturers met . . . to support the burgeoning use of bicycles." The movement is credited with pushing for paved roads before the reign of the automobile. In 1929, one of the founders of the movement, Horatio Earle, stated in his autobiography, "I often hear now-a-days, the automobile instigated good roads; that the automobile is the parent of good roads. Well, the truth is, the bicycle is the father of the good roads movement in this country. . . All these battles were won and the bicyclist was accorded equal rights with other users of highways and streets." Notwithstanding this history, twelve years ago the Illinois Supreme Court declared that streets and roads in our state are for motorized traffic, not bicycles. In its now infamous decision, Boub v. Township of Wayne, 183 Ill.2d 520, 702 N.E.2d 535 (Ill. 1998), the Court held that bicyclists are permitted but not intended users of Illinois roadways, unless the road at issue is specifically designated for bike traffic, e.g. with signs, markings, etc. Unless a roadway is so designated, a local municipality is completely immune from liability for a bicyclist's injuries caused by roadway hazards. The Boub decision is an anomaly. Nowhere else in the United States has a state high court declared that bicyclists are not the intended users of the very paved streets for which their two-wheeling forebearers advocated. The fallout from the Court's decision has gone beyond merely barring individual bicyclists from pursuing justice. It has slowed progressive attempts to bring bicycle safe roads and streets to communities in Illinois. This broadly felt negative impact was predicted by one of the Court's own members. Justice Heiple, in his dissent from the majority holding in Boub, forcefully offered a vision into the future shaped by the misguided ruling of his brethren:

The principal effect of the majority decision will be to discourage municipalities from taking any measures to make roads safer and more hospitable for bicyclists. Because the majority precludes liability whenever the municipality in question does not intend for bicyclists to use its roads, a loss-averse municipality, in order to minimize its exposure to liability, might remove from its roads any evidence that bicyclists are intended users, such as bike lanes or special signs.

Boub, 183 Ill.2d at 539-540 (J. Heiple dissenting).

Sadly, Justice Heiple was right.

Some suburban municipalities in the Chicagoland area are resistant to creating bicycle lanes in their districts out of fear that doing so could expose them to liability under Boub, according to John O'Neal, Transportation Planner for the Chicago Metropolitan Agency for Planning (CMAP). John is one of the folks at CMAP responsible for developing a comprehensive regional transportation plan to include the counties of Cook, DuPage, Kane, Kendall, Lake, McHenry and Will. Part of the plan is to include roadway bicycle lanes. Though some municipalities in these counties have created designated bike lanes -- Chicago being the most obvious example -- John tells me there has been resistance from others and that the holding in Boub has been cited explicitly. The effect of that decision has been felt in other parts of the state as well. According to Ed Barsotti, Executive Director of the League of Illinois Bicyclists, "While we’ve seen quite a few towns (especially in urbanized areas) moving ahead in recent years, plenty of others are still stalled by the liability disincentive. In rural areas, the vast majority of county highway departments and townships are completely scared by the issue."

How great is the liability threat to a municipality anyway? The short answer is not very. I am a personal injury lawyer who represents accident victims in litigation, so I am not in the business of providing municipalities and their insurers defense strategy guidelines. However, one must face facts: It is awfully difficult for a victim to successfully pursue a claim against a local governmental entity for injuries caused by a roadway hazard even absent complete immunity protection. The obstacles are set forth in section 10/3-102 of the Local Governmental and Governmental Employees Tort Immunity Act. That law creates several substantial hurdles that must be overcome by a bicyclist injured due to a public roadway hazard. When suing a governmental entity the injured bicyclist must prove that:
  1. The municipality was put on notice of the dangerous condition. The municipality had to know that a hazard existed within a reasonably adequate period of time for a fix to be implemented. However, if the municipality had a reasonably adequate inspection system in place for detecting bike lane hazards, and used due care in maintaining and operating that system, yet failed to detect the hazard, the municipality will be deemed not to have had notice.
  2. The roadway condition that is alleged to have caused the injury was indeed dangerous.
  3. The municipality was negligent in maintaining the bike lane.
Additionally, the bicyclist will likely have to defend against the notion that he or she was contributorily negligent in causing his or her injury.

Consider the following hypothetical: Smallville, Illinois has created a marked bike lane along the right side of its main thoroughfare. It has also implemented a program whereby a road crew inspects the entire distance of the bike lane on a monthly basis for hazards such as tree branches, garbage, holes, large cracks and the like. If a hazard is observed it is remedied within a reasonable period of time. One pleasant afternoon Sally Triathlete is riding her bicycle within a section of Smallville's bike lane. She is training for an upcoming competition so she is pushing herself, pedaling at a very high rate of speed. The day before Sally's training run Smallville's road inspection crew inspected the bike lane and saw nothing of note. The crew documented its inspection. That evening a violent storm blew through Smallville knocking a large tree branch into to the bike lane. During Sally's vigorous ride her front wheel struck the branch and she was propelled off her bicycle suffering serious injury. She subsequently hired an attorney wanting to sue the municipality for failing to properly maintain the bicycle lane. Tough case; one in which the prospect of success is low. Given the existence of a reasonable inspection system and the relatively short period of time between the creation of the hazard (the tree branch falling) and the collision between it and Sally's bike, Smallville will likely be found not to have had notice of the danger and likely will not be held liable for Sally's injury. Also, there will likely be serious questions raised about Sally's own negligence, particularly the speed at which she was traveling. I would frankly anticipate Sally having a difficult time finding an attorney willing to take her case.

If a municipality provides a service or amenity to its residents, then it must do so with care to avoid injury. However, both the Illinois legislature and Illinois' courts have consistently recognized the need to protect municipalities from litigation, lest they become financially overwhelmed by insurance premiums and the cost to defend against lawsuits. Attorney's who represent injury victims tend to only have success against local municipalities where injury is caused by the most brazen betrayal of the public trust. Municipalities in Illinois who decline to make their roadways safe for bicycle traffic for fear of liability following Boub are overreacting. Worse, their leaders are failing to protect the most vulnerable users of the roads, children and adults traveling by bicycle.

3 comments:

  1. Will there be a "standard" the State will mandate with regards to the designated bike routes and the care and maintance? If the State lays down their expectations and the munies follow them, in theory there would be no liability. This may give them them the comfort level they need to stop "overreating". And don't forget, defense costs money too.

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