A Proposal For Revising Illinois Jury Instructions In Bicycle & Pedestrian Injury Cases

Is it reasonable for the law to require all roadway users to use the same amount of caution? Should pedestrians and bicyclists be required to use as much caution on the road as motorists?  For a very long time, California has said "no."  Illinois should follow suit.

As in Illinois, Californians using the road are required to use ordinary or reasonable care for their own safety as well as for the safety of others.  "Ordinary care" is generally thought of as the sort of care used by the reasonably prudent person.  This is the sort of care that would be employed by a regular hypothetical dude who is neither hyper-safety conscious nor particularly careless.  The facts and circumstances in which the events took place are considered, here and in California, when determining whether ordinary care was indeed used.  For example, ordinary care while driving a car in icy conditions will require a different amount of caution than will driving in dry conditions.  In this context, California has taken a very pragmatic approach when it comes to instructing jurors regarding the duties of care for pedestrians and drivers. California courts are explicit when guiding jurors.  They are instructed as follows:

The duty to use reasonable care does not require the same amount of caution from drivers and pedestrians.  While both drivers and pedestrians must be aware that motor vehicles can cause serious injuries, drivers must use more care than pedestrians.

California Jury Instruction 710.  (Emphasis is mine).

Personal injury cases in Illinois are generally decided by 12 regular people.  A victim of injury (the plaintiff) alleges that one or more defendants (whether a person or corporation, partnership, etc.) acted badly thereby causing the harm.  The "badness" of the conduct, or lack of it, is determined by the members of the jury based on what the law is.  If the jurors agree that under the law the defendant(s) acted badly then they must determine how much money will help compensate the victim for his or her harms and losses. It is a huge, and sometimes taxing job.  Juries make these determinations by listening to the evidence presented by all sides, then determining whether the defendant's injury causing conduct violated the law.  If so, the injury victim prevails and should be compensated.

It is natural for jurors to feel intimidated by this task.  It is sometimes difficult to determine what really happened among competing versions of events.  Further, how are they to know what the law is?  Jurors are not trained in the law.  Frankly, the lawyers on each side of the case are often not much help in this regard. They are advocates for their respective clients.  How can they be trusted to accurately tell the jurors what the law says?  This is were jury instructions come in.

At the end of the case, after all sides have made their closing arguments, the judge reads jurors a set of written instructions telling them what the relevant law is.  The instructions are just that; they guide jurors in how they are to set about deciding the case and rendering a decision.  The content of the instructions to be read to the jurors is generally argued by the various sides in the litigation to the judge outside of the jury's presence.  The judge considers the arguments regarding how the jury should be instructed then renders a decision.  He or she then reads the chosen instructions to the jury.  The jury returns to their room for deliberation, using the instructions they have just heard as a guide for rendering a decision.

Adopting California jury instruction 710 in Illinois would greatly assist juries determining fault in cases involving drivers, pedestrians, bicyclists and other vulnerable roadway users.  What I am proposing, to be clear, is not a change in the law; but clearer, better guidance to jurors.  Authority for the use of the 710 instruction comes from the Supreme Court of California in Cucinella v. Weston Biscuit Company, 42 Cal.2d 71 (1954).  In that matter the court noted that "the elements of conduct entering into ordinary care or caution will vary and must be related to the particular circumstances involved, including the character of the act being performed."  Taking that basic principle into account the Court stated that juries, when considering the degree of caution to be employed by various roadway users, should be instructed that

[T]he elements of action constituting conduct which qualifies as ordinary care are those commensurable with the responsibility involved and depend on upon the character of the instrumentality being used or the nature of the act which is being performed, all as related to the surrounding circumstances.

The court held that because cars are capable for causing so much potential harm, drivers should be required to use greater caution then pedestrians.  The court approved of two jury instructions which stated, in part:

While it is the duty of both the driver of a motor vehicle and a pedestrian, using a public roadway, to exercise ordinary care, that duty does not require necessarily the same amount of caution from each.  The driver of a motor vehicle, when ordinarily careful, will be alertly conscious of the fact that he is in charge of a machine capable of projecting into serious consequences any negligence of his own.

* * * * * 

To put the matter in another way, the amount of caution required by the law increases as does the danger that reasonably should be apprehended.

Just like icy pavement poses a greater threat of harm to drivers, motor vehicles pose a greater risk of harm than do other roadway users.  Illinois juries should be explicitly instructed that they may take this intuitive truth into account when a vulnerable road user has been harmed by a driver.  The California instruction only references pedestrians, and the Cucinella decision arose from a crash involving a pedestrian and a motor vehicle.  However, California bicycle attorney, and law professor at the University of San Diego Law School, Thomas Penfield, (who made me aware of the California instruction) has noted that "the rational should apply to bicyclists as well."  Like pedestrians, bicyclists are far less capable of potential harm than are drivers.  The level of caution that bicyclists should be accountable to use should therefore be less than for drivers.  Some will undoubtedly misconstrue this.  To be clear, bicyclists own a duty of reasonable care to themselves and even more vulnerable road users like pedestrians.  But the amount of caution required from drivers and cyclists should not be the same and jurors should be instructed as such.  The harm causing potential of their chosen vehicles is vastly different.

Such an instruction would be particularly useful in certain intersection crash cases.  We see many cases in which a bicyclist is "t-boned" by a driver who has timed a traffic signal which changed as the cyclist made his or her way through the intersection.  In Chicago at least, yellow lights last a mere three seconds.  At many intersections, a cyclist (and certainly a pedestrian) may enter an intersection on a green, only to see the light change from yellow to red before making it to the other side.  It happens a lot.  On plenty of occasions drivers see green lights like bulls see red and charge through intersections without looking for cyclists already proceeding across.  But a driver's duty is not merely to see green, but to see all there is to be seen, including bicyclists and pedestrians.  Where a driver has failed to look and causes harm, a jury considering the matter would be aided by an instruction that reminds that driving a vehicle that has the potential to inflict significant injury requires the use of great caution.

A Pile Of Dirt, A Bicycle and A Duty of Care

For a kid there are few things more fun and exciting than a bicycle and a pile of dirt. It's messy, it's exciting and it's simple. The problem, however, is that it often presents a young child with some serious danger. Speaking from the experience of my much younger self, a pile of dirt offers a kid the chance to fly, the mound providing a ready-built ramp for aerial tricks and stunts. Unfortunately, the fun sometimes ends with broken bones, serious cuts and gashes, sprains and even head injuries. I remember an incident from my own childhood in which a friend and I created a ramp from a pile of dirt at the bottom of a steep street. I went barreling down the road, onto and over the dirt pile. I remember being terror-struck as I flew through the air and eyed a bunch of cinder blocks haphazardly strewn in my poorly anticipated landing zone. The impact against the hard blocks broke my leg.

What duty does the private landowner owe to children engaged in this sort of bicycling on his or her property? The answer boils down to foreseeability. In Grant v. South Roxana Dad's Club, 381 Ill.App.3d 665, 886 N.E. 543 (5th Dist. 2008) an 8 year old boy was seriously injured while using a pile of dirt as a bike ramp in the parking lot of a privately owned playground that was open to the public. In response to the lawsuit filed by the boy's parents, the defendant landowner asserted that the case should be dismissed because the pile of dirt was an open and obvious danger that even an 8 year old could appreciate. If the child chose to risk launching himself through the air via the dirt mound, the landowner felt it should not be held responsible where injury resulted. The problem for the landowner, however, was that it knew ahead of the boy's accident that children were legally on its property, engaged in dirt jumping and that they were likely to get hurt while doing so. The appellate court noted that while the dirt was perhaps open and obvious, an 8 year old boy may not fully appreciate the danger of using it as a bicycle ramp. In any event, the Court stated that the ability of the boy to have recognized the danger was not the only issue in determining whether the landowner had a duty to correct or warn against the hazard. The Court stated, "In order to find that a landholder owes a duty to a child injured on its premises, a court must also find that (1) a dangerous condition exists on the property, (2) it is reasonably foreseeable that children would be present on the premises, and (3) the risk of harm to children outweighs the burden of removing the danger." Grant, 381 Ill.App.3d at 670. The Court found it damning to the landowner that the park's commissioner testified that he had seen children jumping their bikes on the dirt, had shooed them away because he recognized they could get hurt and observed them return to the mound with their bicycles despite his admonition. In light of that knowledge, the Court held that the danger to the boy was foreseeable and that the landowner, therefore, owed him a duty to remove the hazard, especially given the nominal cost involved in dismantling the pile by just spreading the dirt around.

In Grant, the boy was legally permitted to be on the property at the time he was injured. But what if he had been a trespasser? Again, knowledge is key. Given the facts presented in that case, the landowner still could have been held liable. The general rule in Illinois is that a landowner owes no duty of care to trespassers except to avoid purposefully injuring them. However, our courts have carved out a "frequent trespass exception" to this rule. "Under this exception, a landowner is liable for injuries to a trespasser proximately caused by its failure to exercise reasonable care in the course of its activities, where the landowner knows, or should know from the facts within his knowledge, that trespassers are in the habit of entering his land at a particular point or of traversing an area of small size." McKinnon v. Northeast Illinois Regional Commuter Railroad Corporation, 263 Ill.App.3d 774, 777, 635 N.E.2d 744 (1st Dist. 1994). A failure to object to trespassers coming on the land may be viewed as "tacit permission" for them to do so. The landowner may be liable to such "tolerated intruders" for injury "where the harm to be anticipated from a risk for which the defendant is responsible outweighs the inconvenience of guarding against it." Id. at 778. The facts presented in Grant were that the landowner knew the boys continuously came onto its property specifically to jump their bikes on the pile of dirt. The park commissioner had seen them do so on more than one occasion. The commissioner had asked the boys to leave on one occasion, but on others he failed to do so. He testified that he saw the boys return to the pile with their bikes even after he asked them to leave. After the boy suffered his injury the dirt pile was spread out with little cost or effort. Pursuant to the "frequent trespass" exception, the landowner in Grant could have been held liable under these facts even if the injured boy had been a trespasser. The owner know the boys continuously entered a specific portion of its property to play on the dirt mound. Also, the cost of preventing the harm, i.e. by flattening the pile, was slight.

Children on their bicycles tend to be endlessly creative, and that's a good thing. Kids will always gravitate toward danger. As parents, we of course hope they will survive their natural inclinations for fun and adventure seeking. Landowners must recognize that they simply cannot turn a blind eye to children playing on their property. There is no need to be the angry neighbor who constantly yells at children to stay away. At the same time, if there is a dangerous condition on your property that you know children encounter you must take reasonable steps to correct the hazard.