Yesterday, the Illinois Appellate Court upheld a $1.9 million jury verdict to a bicyclist injured due to shoddy roadwork performed by the City of Chicago. With the decision the Court provided some important clarification regarding how a jury should be instructed in cases arising from injuries caused by an activity performed negligently by a local municipality.
The case, Smart v. The City of Chicago, 2013 IL App (1st) 120901, arose from an incident that occurred on July 1, 2007. On that day, Todd Smart, an avid cyclist, was riding his triathlon road bike east in the bike lane on Cortland Street near the intersection with North Marcey Street in Chicago. It was a route he knew well, having ridden his bike through the area countless times previously. As he approached the intersection he saw that the "street's surface changed from a smooth to a rugged texture as a result of a resurfacing project" being done by the City. He also saw that the utility covers in the road, "which are normally flush with the pavement, were protruding above the street surface." Worried, the cyclist slowed his bike. As he "approached one of the square [utility] covers, he steered left to go around it at which point the front tire of his bicycle lodged in the roadway." His bike stopped abruptly, throwing him into the road where he sustained a serious shoulder injury. Later, it was determined that the condition that caused the crash was a "gash or shallow trench" in the road created because a small grinder used during the road work was "left on and standing in one place." The bicyclist's attorneys retained a expert familiar with industry standards for resurfacing roadways to investigate the matter. He determined that the grinding and resurfacing work was not performed in compliance with industry standards, and that if the City had performed the work properly the trench would not have existed. The jury found for the bicyclist at the end of trial.
The City appealed believing that the jury was not properly instructed regarding what the bicyclist was required to prove. At the end of a trial in a personal injury case, after all of the evidence has been presented but before the jury begins its deliberations, the judge reads instructions to the jurors guiding them on exactly how they are to come to a decision. Those instructions are printed in a book, Illinois Pattern Jury Instructions. Which of those instructions are to be read to jurors is always a matter of debate between the sides in litigation and the judge is compelled to make some important decisions in that regard. To the non-lawyer such matters may sound like hyper-technical noise. But deciding how a jury is to be instructed is vitally important to reaching a fair outcome. In Smart, the City wanted the jury instructed in such a way that would have increased the plaintiff's/bicyclist's burden at trial, making it harder for the jury to find in his favor. At issue was whether the bicyclist's case was a premises liability action, or simply a negligence action. If the plaintiff's injuries were the result of a condition of the property (the road), then it was a premises liability action. If the crash was instead caused by the City's activity, then plaintiff's cause was a straight negligence action. If you are a law dork like me you can read the decision to understand how the court analyzed the matter. But the bottom line is that if the injuries were due to a condition then the plaintiff would have to prove that "the City had notice of the condition that posed an unreasonable risk of harm." Proving that a municipality had notice of a dangerous condition is notoriously difficult. I imagine that the City in Smart claimed that it was unaware of the existence of the trench that caused Mr. Smart's crash. It may have been very tough, perhaps even impossible, for the plaintiff to have proven that the City knew of the trench's existence before the crash occurred. However, the appellate court determined that the cause of the crash was not a condition, but rather was the result of an ongoing activity being conduced by the City and, "Given that fact, Smart was not required to show that the City had notice of the hazard." It was proper, therefore, that the trial judge provided Illinois Pattern Jury Instruction 120.02 which instructed the jury that,
It was the duty of [The City of Chicago], as an owner of the property in question, to exercise ordinary care to see that the property was reasonably safe for the use of those lawfully on the property.
The appellate court rejected the City's argument that the jury should have been instructed pursuant to Illinois Pattern Jury Instruction 120.08 which "requires a plaintiff pursuing a premises liability claim to prove that (1) there was a condition on the property that presented an unreasonable risk of harm, (2) defendant knew or in the exercise of ordinary care should have known of both the condition and the risk, (3) defendant could not reasonably expect that people on the property would not discover or realize the danger, (4) defendant was negligent in specific ways, (5) plaintiff was injured, and (6) defendant's negligence was the proximate cause of plaintiff's injury."
Smart is an important decision for Illinois bicyclists because it puts municipalities throughout our state on notice that when you do roadwork in an area designated for bicycle traffic, they must consider the safety of bicyclists. If they do not and a cyclist is hurt, then the municipality will be held responsible for the resulting harm.
It is unknown at this time whether the City intends to appeal the ruling to the Illinois Supreme Court. For the moment though, Smart is the law of our state.