A Call To Arms Against Holes

There are some huge potholes out there.

Duh, this is Chicago at the end of winter, and particularly brutal winter at that.  Still, I don't remember seeing so many large craters distributed throughout the city such as there are right now.  Many of these pose a serious threat to bicyclists.  Many occupy bike lanes and areas designated for bike travel.  North Clark Street in Lakeview comes to mind, as does North California Avenue in Humboldt Park.  Hit one of these craters with your front wheel and you may end up picking your teeth up off the ground, or worse.  This is no joke.

The city has a duty to maintain its property in a reasonably safe condition for permitted and intended users of its property.  Under Illinois law a bicyclist is generally considered both a permitted and intended user of an area explicitly marked for bike traffic.  To be held liable for a dangerous condition in a bicycle lane that causes an injury, a municipality must have notice that the condition existed.  The City of Chicago does not owe a duty to its citizens to constantly inspect its roads, streets and alleys for danger.  Our transportation infrastructure is just too enormous to allow such an inspection system.  However, once the City is aware of a dangerous condition on its property, i.e., in one of its bike lanes, then the City must take reasonable steps to fix it.  What that may mean exactly will depend on the specific circumstances.  Our law firm is presently suing the City of Chicago on behalf of a bicyclist who was seriously injured when the front wheel of his bicycle struck a large hole in a bike lane on S. South Shore Drive on the City's South Side.  We have alleged that the City was made aware of the hole's existence, and of its propensity to become hidden by standing water, many months before the crash thanks to a call made by a concerned resident who lived nearby.  

Putting the City on notice of a dangerous roadway condition is important.  Ideally, the City will respond and fix the problem before someone gets hurt.  If it fails to do so,  proof that the City was notified yet failed to act in a timely manner can be used to preserve the injured cyclist's right to compensation for his/her harms and losses.  So, how can the average cyclist help out?  To borrow a ubiquitous slogan: If you see something, say something.  There are a few ways in which that can be done.  Calling 311 is an option.  Perhaps a better one, is to go to the City's "Pothole in Street" website.  Though the site needs a catchier name, it allows for quick and easy reporting of dangerous potholes.  Perhaps a better way still is to whip out your trusty smart phone, snap a photo and report it immediately using the Chicago Works Mobile 311 app.  Available for iPhone and Android users, the app has been around since 2012 and is quite easy to use.  It even tracks the progress of the requested service.  

If the worst happens, and a cyclist is injured due to a dangerous pothole, an attorney's office can send a Freedom of Information Act request to the City of Chicago requesting any complaints that may have been made about the particular hole.  If it turns out that one or more service requests were made then the attorney may take the appropriate action to get the injured bicyclist compensation.

Illinois Court Rules That Bicyclists & Motorists May Sue Municipalities For Injuries Caused By Negligent Road Repairs

A decision handed down recently by the Illinois Appellate Court may help bicyclists bring suits against municipalities for injuries suffered due to poorly maintained roads.  On August 29th, the Third District Court of Appeals issued its decision in Robinson v. Washington Township.  The decision allowed a case to go forward alleging that Washington Township may be sued for injuries sustained because of its failure to properly fill potholes.

The case arose from a 2008 incident in which a motor vehicle being driven south on Stony Island Road in Washington Township hit a pothole causing the driver to lose control and flip over.  A child riding in the vehicle was injured, giving rise to the litigation.  The lawsuit alleged that the defendant Township started repair of the road but did a lousy job leaving the street with "potholes, pits and uneven surfaces."  It was this hazardous condition that caused the crash which injured the boy.  Soon after the lawsuit was filed the Township moved for dismissal citing Section 2-201 of the Illinois Tort Immunity Act which protects governmental entities from liability arising from an act of "discretion" or the "determination of policy."  The trial court granted the motion, dismissing the lawsuit on this ground.  

Generally, a discretionary act involves "the exercise of personal judgment in deciding whether to perform a certain act or in what manner the act should be conducted." Robinson.  The appellate court disagreed with the lower court's finding, allowing the case to continue.  The Court found that once the Township exercised its discretion and decided to go ahead and fix the street, the act of conducting the repairs was "ministerial."  As such the Township had to act with reasonable care in fixing the street or risk liability if its negligent repair work caused injury.  The Court stated that

A public entity or municipal corporation exercises discretion when it selects and adopts a plan in the making of public improvements.  However, once the public entity is carrying out the plan, it acts ministerially and is bound to see that the work is done in a reasonably safe and skillful manner.  A municipality's act of repair is generally considered a ministerial act for which it may be liable if negligently performed. (emphasis added).

In Robinson, the lawsuit alleged that after the Township did the repair work it failed to remove debris, neglected to cover potholes and "left an uneven pavement surface."  This negligence, the suit alleged, caused the crash and the minor plaintiff's injuries.  The Court held that these allegations, if proved, were actionable.

Though the Robinson decision arose from a single motor vehicle crash, the implications for Illinois bicyclists from the Court's ruling may be quite significant.  Uneven pavement, potholes and roadway debris pose a degree of danger to bicyclists that is greater than for motorists.  It most instances, a four wheeled motor vehicle will simply thump over uneven pavement, its heavy suspension safely absorbing the hazard. Faced with the same road defect, a thin wheeled bicycle may be sent careening, tossing the rider into danger.  With the Court's holding in Robinson a bicyclist may bring a lawsuit against a municipality where its negligent repair work caused a roadway hazard that resulted in injury.

But...

There are two important limiting factors that bicyclists and their attorneys should keep in mind:  First, attaching liability to a local governmental entity for its negligent road repair work will only be possible where the work and subsequence crash occurred on a part of the roadway specifically designated for bicycle use.  The Illinois Supreme Court's infamous holding in Boub v. Township of Wayne creates a hurdle for bicyclists that need not be overcome by motorists when attempting to sue a municipality.  The Boub Court held that bicyclists are permitted but not intended users of Illinois roads.  Unless the road defect is in a bike lane, or other bike specific area, the injured rider may not bring his or her suit.  (Click here to read more about Boub.)  Secondly, the appellate court's ruling in Robinson merely allowed the injured child's suit to proceed to the discovery, or fact finding stage.  The Court's decision did not equate to victory and compensation for the plaintiff.  Based on the evidence discovered as litigation moves forward, the injured boy's family may still face dismissal of his case.  That is indeed what happened in a similar case, Wrobel v. City of Chicago.  In that matter, the plaintiff was injured when another driver's vehicle careened out of control after striking a pothole that had been shoddily repaired by city workers.  The City also brought a motion to dismiss the case under Section 2-201 of the Tort Immunity Act.  However, its motion was brought at the end of the discovery process, after evidence had been collected by both sides.  That evidence showed that city workers actually applied a great deal of complex decision making in how it went about repairing the pothole in question.  In light of that evidence, the appellate court held that the alleged act of negligence arose from the exercise of discretion and was not merely ministerial.  Therefore, the City was immune from liability.

When May A Public Entity Be Held Liable For Injuries Caused By Roadway Defects and Hazards

Bicyclists can and do sustain injuries from defects and hazards in the roadway. These cases are actionable in Illinois; a lawsuit can be filed against a local town, city or municipality for injuries sustained due to a failure to properly maintain the roadway. However, in order to be successful such cases must overcome two substantial hurtles. Firstly, the injured cyclist must demonstrate that he or she was a permitted and intended user of the portion of roadway upon which the injury occurred. Secondly, he or she must prove that the municipality had actual or constructive knowledge of the injury causing hazard.

Many Illinois bicyclists may be surprised to learn that they are not necessarily the intended users of many of our state's roadways and streets. Illinois law explicitly grants bicyclists "all of the rights and . . . duties applicable to the driver of a vehicle" on roadways. 625 ILCS 5/11-1502. But that statute only makes the bicyclist a permitted user of Illinois roads, not necessarily an intended user of those roadways. The Illinois Supreme Court took up this issue in Boub v. Township of Wayne, 183 Ill.2d 520, 702 N.E.2d 535 (Ill. 1998). In that case, a cyclist sued rural Wayne Township after sustaining an injury while crossing a one-lane bridge the township maintained. "The surface of the bridge consisted of wood planking; some time before the accident, asphalt patching between the planks had been removed as part of a bridge renovation project, in preparation for the installation of a different bridge deck" Boub, 183 Ill. 2d at 522. The cyclist alleged that he was "thrown from the bicycle when his front tire became struck between two of the planks on the bridge." Id. Wayne Township, in response to the suit filed against it, alleged that it was immune, pursuant to Section 3-102(a) of the Tort Immunity Act, from liability unless the bicyclist could demonstrate that he was both a permitted and intended user of the bridge. There was no controversy that the cyclist was permitted to bike across the bridge. However, the township asserted, and the Supreme Court ultimately agreed, that he was not an intended user of the bridge. The Court stated, "In the present case, there is nothing in the roadway or bridge that would suggest that it was intended for use by bicycles. No special pavement markings or signs indicated that bicyclists, like motorists, were intended to ride on the road or bridge, or that bicycles, rather than vehicles, were the intended users of the route." Boub, 183 Ill.2d 529. The bicyclist's claim was, therefore, dismissed.

Subsequent cases clarified when a bicyclist is an intended user. In Brooks v. City of Peoria, 305 Ill.App.3d 806, 712 N.E.2d 387 (3rd Dist. 1999), the appellate court held that a seven-year-old bicyclist who was injured riding on a city sidewalk was a permitted and intended user of the sidewalk and, therefore, could maintain his personal injury action against the city. The Court felt that the injured bicyclist's age was important in reaching its holding. It stated, "Common sense would indicate. . . that the nature of a sidewalk includes use by children in strollers, motorized wheelchairs, tricycles, training bicycles, junior bikes, roller blades and roller skates." Brooks, 305 Ill.App.3d at 808. Had the injured cyclist been of majority age, the Court would have ruled differently. In Latimer v. Chicago Park District, 323 Ill.App.3d 466, 752 N.E.2d 1161 (1st Dist. 2001), a cyclist brought a lawsuit alleging that she was injured when she fell from her bicycle on a municipal street that was broken and uneven. The appellate court held in dismissing the bicyclist's suit, however, that because the accident occurred in a place where there were no bicycle lane markings she was not an intended user of that portion of roadway and was not entitled to damages under the Tort Immunity Act.

The bottom line is this: a bicyclist may not maintain a lawsuit against a local governmental entity, such as a city, town or municipality, for injuries sustained due to hazards or defects in the roadway unless there was present at the time of the accident some signs, markings or other clear indication that the roadway was intended for use by bike traffic. In light of the state of the law in Illinois, bicyclists are encouraged to ride in bike lanes and designated bike paths. Should you become injured while doing so due to a hazard or defect in the road, you will be able to seek compensation of the harms and losses you sustain as a result.

The second hurtle a bicyclist must overcome to bring a lawsuit against a local municipality for injury caused by a hazard or defect in the roadway is notice. The relevant portion of the Tort Immunity Act states that a governmental entity "shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition." 745 ILCS 10/3-102(a). The notion of "actual notice" is easy enough to understand. If one of the public entity's "employees has actual knowledge of the defect in question" then that entity may be found to have notice. Glass v. City of Chicago, 323 Ill.App.3d 158, 751 N.E.2d 141 91st Dist. 2001). Also, if the municipality, through its employees, actually created the road hazard or defect then it will be found to have had knowledge of its existence. In the absence of actual knowledge, the courts will consider whether the public entity had "constructive notice" of the defect. The notion of constructive notice is that even if the municipality did not know of the defect, it should have. "Constructive notice of a condition is said to exist where the condition has existed for such a length of time or is so conspicuous or plainly visible that the public entity should have known of its existence by exercising reasonable care and diligence." Ramirez v. City of Chicago, 318 Ill.App.3d 18, 22, 740 N.E.2d 1190 (1st Dist. 2000). For example, in Ramirez a lawsuit was brought against the City of Chicago by a pedestrian who was injured after tripping over sidewalk slab deviation. The appellate court upheld the trial court's finding that the city had constructive notice of the condition where a witness testified that the sidewalk slabs at the place of the fall "were separated by a height of maybe a couple of inches" and that the condition had existed there for some sixteen years prior to the fall. Id. This rule of law certainly makes sense. A municipality charged with maintaining a roadway cannot be expected to monitor the condition of the road at all times of the day and night. If you are unlucky enough, for example, to ride your bicycle into a sink hole that developed only hours before reaching the accident site, you will not be able to establish that the public entity charged with maintaining the area had constructive notice of the defect.

Liability on the part of a public entity for injuries caused by the condition of the roadway must, of course, be determined on a case by case basis. The devil is always in the details. But, as a general rule, a public entity must take reasonable precautions to protect permitted and intended users, including bicyclists, from roadway hazards it knew of or should have known of.