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09/09/97 JON P. BOUB v. TOWNSHIP WAYNE

September 9, 1997

JON P. BOUB, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
THE TOWNSHIP OF WAYNE, AND JOHN RYVOLD, WAYNE TOWNSHIP HIGHWAY COMMISSIONER, DEFENDANTS-APPELLEES AND CROSS-APPELLANTS (KARL FRY, DU PAGE COUNTY ENGINEER OF HIGHWAYS, DEFENDANT).



Appeal from the Circuit Court of Du Page County. No. 93--L--1912. Honorable Paul Noland, Judge, Presiding.

Released for Publication October 9, 1997.

The Honorable Justice Doyle delivered the opinion of the court. Bowman and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Doyle

The Honorable Justice DOYLE delivered the opinion of the court:

Plaintiff, Jon P. Boub, appeals from an order of the circuit court of Du Page County which granted summary judgment in favor of defendants, the Township of Wayne and John Ryvold, Wayne Township Highway Commissioner. Defendant Karl Fry was voluntarily dismissed by plaintiff and is not a party to the appeal. Plaintiff contends that the trial court erred when it ruled that, under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/1--101 et seq. (West 1996)), defendants owed no duty to plaintiff and/or were immunized from any liability which might arise from their alleged conduct.

Plaintiff's third amended complaint alleged that on September 8, 1992, plaintiff rode a bicycle onto a one-lane bridge on St. Charles Road in Wayne Township; defendants knew that bicyclists used the bridge; the bridge surface previously consisted of wooden planks with asphalt between the planks; because vandals often removed the planks, defendants had begun a construction project to install steel plates on the bridge on top of the planks; as part of the project, defendants removed the asphalt from between the planks and left the bridge in that condition until the project was completed several days later; the wheel of the bicycle plaintiff was riding caught in a groove between the planks created by the removal of the asphalt; and, as a result, plaintiff lost control of the bicycle and was thrown over the handlebars onto the railing and support structure of the bridge suffering severe injuries.

Counts I and IV of the plaintiff's third amended complaint sounded in negligence and wilful and wanton misconduct respectively and alleged that defendants violated a duty imposed on them by section 3--102(a) of the Act (745 ILCS 10/3--102(a) (West 1996)) to maintain the bridge in a reasonably safe condition for plaintiff's use. Counts II and V of plaintiff's third amended complaint sounded in negligence and wilful and wanton misconduct respectively and alleged that section 3--103 of the Act (745 ILCS 10/3--103 (West 1996)) did not immunize defendants' conduct regarding the bridge project. Counts III and VI of plaintiff's third amended complaint sounded in negligence and wilful and wanton misconduct respectively and alleged that defendants violated a duty which arose under certain provisions of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/1--100 et seq. (West 1996)) when they failed to provide signs warning of the bridge condition or warning that the road was closed.

The trial court entered an order granting defendants' motion for summary judgment as to all six counts of plaintiff's third amended complaint. In its order, the trial court stated that defendants were entitled to summary judgment on the following grounds:

"(a) The plaintiff, a bicyclist on a township road and bridge, was not an intended and permitted user of that bridge; therefore, no duty was owed to plaintiff under Section 3--102 of the Tort Immunity Act;

(b) Section 3--103 of the Tort Immunity Act does not impose a property-related tort duty and, even if it did, Section 3--103 can have no application in this case because the bridge repair project was not completed at the time of the occurrence; and

(c) Pursuant to Section 3--104 of the Tort Immunity Act, the defendants are absolutely immune from liability for any failure to provide traffic control devices, signs, signals, warnings, barriers or barricades."

Plaintiff's timely appeal followed. Defendants subsequently filed a cross-appeal from an order which denied their motion to dismiss plaintiff's first amended complaint.

Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2--1005(c) (West 1996). In all cases involving summary judgment, a reviewing court conducts a de novo review of the evidence in the record. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113, 208 Ill. Dec. 662, 649 N.E.2d 1323 (1995).

On appeal, plaintiff contests only the granting of summary judgment as to the negligence counts of his third amended complaint, counts I, II, and III. Plaintiff first contends that the trial court erred when, in relation to count I, the court determined that a bicyclist was not an intended and permitted user of the road and bridge and that defendants therefore did not owe plaintiff a duty under section 3--102 of the Act.

Section 3--102(a) of the Act provides, in relevant part, as follows:

" local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used ***." 745 ILCS 10/3--102(a) (West 1996).

The Act does not impose any new duties on local government entities or their employees; rather, the Act simply restates and codifies common-law principles. Wagner v. City of Chicago, 166 Ill. 2d 144, 150, 209 Ill. Dec. 672, 651 N.E.2d 1120 (1995). Section 3--102(a) of the Act therefore codifies a local governmental entity's general duty at common law to maintain its property in a reasonably safe condition. Wagner, 166 Ill. 2d at 150. However, the duty is not absolute and extends only to persons whom the entity "intended and permitted to use the property." (Emphasis added.) 745 ILCS 10/3--102(a) (West 1996); see Sisk v. Williamson, 167 Ill. 2d 343, 347, 212 Ill. Dec. 558, 657 N.E.2d 903 (1995).

In this case, defendants do not dispute that plaintiff was a "permitted" user of the road and bridge. Rather, defendants contend that plaintiff was not an "intended" user as required by section 3--102(a). Thus, the first issue before us is whether plaintiff was an "intended" user of the road and bridge. If plaintiff was an "intended" user of the road and bridge, then under section 3--102(a) defendants owed plaintiff a duty to maintain the bridge in a reasonably safe condition for the use of bicycles.

In plaintiff's view, a bicyclist is an intended user of a public road or bridge. In support of his position, plaintiff primarily relies on certain sections of the Vehicle Code and certain policies of the Illinois Department of Transportation. Plaintiff also notes that the Illinois Secretary of State publishes an official pamphlet setting forth rules of the road for bicycles.

More specifically, plaintiff argues that certain sections of the Vehicle Code show that the legislature explicitly regards bicyclists as intended users of streets, roads, and highways. Among the sections of the Vehicle Code plaintiff relies on are section 11--1502, which provides that "every person riding a bicycle upon a highway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this Code" (625 ILCS 5/11--1502 (West 1996)); sections 11--1505, 11--1505.1, and 11--1510, which establish parameters for persons operating bicycles on public roads such as a requirement that bicycles traveling on a roadway at less than the normal speed of traffic must ride as close to the right-hand curb or edge of the road as possible (625 ILCS 5/11--1505 (West 1996)); and section 11--1509, which provides that, under certain circumstances, a uniformed officer may stop a bicyclist and inspect the bicycle for safety and other required equipment (625 ILCS 5/11--1509 (West 1996)).

As to the policies of the Illinois Department of Transportation (Department), plaintiff first posits that the Department's policy is that all new highways, except those where bicyclists are legally prohibited, should be designed and constructed under the assumption that they will be used by bicyclists. Plaintiff also states that the Department's policies require that highway projects provide adequate accommodations for bicycle ...


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