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Boub v. Township of Wayne

October 22, 1998

JON P. BOUB, APPELLANT, V. TOWNSHIP OF WAYNE ET AL.,APPELLEES.


The opinion of the court was delivered by: Justice Miller

Agenda 34-May 1998.

The plaintiff, Jon P. Boub, brought this action in the circuit court of Du Page County, seeking recovery against the Township of Wayne and its highway commissioner, John Ryvold, for injuries sustained by the plaintiff in a bicycle accident on a Wayne Township bridge. The circuit court granted the defendants' motion for summary judgment, and the appellate court affirmed. 291 Ill. App. 3d 713. We allowed the plaintiff's petition for leave to appeal (166 Ill. 2d R. 315(a)), and we now affirm the judgment of the appellate court.

The plaintiff commenced the present action on September 23, 1993, by filing a complaint in the circuit court of Du Page County. After the dismissal of the plaintiff's initial and amended complaints, the plaintiff eventually filed a third amended complaint, which superseded a pending second amended complaint. According to the allegations in the plaintiff's third amended complaint, Boub was riding his bicycle on the morning of September 8, 1992, on St. Charles Road in Wayne Township, Du Page County. The accident occurred as Boub was traveling across a one- lane bridge. 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. According to the pleadings, the plaintiff was thrown from the bicycle when his front tire became stuck between two of the planks on the bridge.

The plaintiff's third amended complaint sought recovery from the defendants on several different theories of liability. Counts I and IV, sounding in negligence and willful and wanton misconduct, alleged that the defendants violated a duty owed to the plaintiff under section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-102(a) (West 1996)) (Tort Immunity Act). Counts II and V alleged negligence and willful and wanton misconduct for failure to comply with certain statutory provisions, including section 3-103 of the Tort Immunity Act (745 ILCS 10/3-103 (West 1996)), in making the improvements to the bridge. Finally, counts III and VI, alleging negligence and willful and wanton misconduct, sought recovery under provisions of the Illinois Vehicle Code for the defendants' asserted failure to properly post warning signs at the bridge. The defendants moved for summary judgment on all six counts. Following a hearing, the trial Judge granted the defendants' motion and entered summary judgment in their favor.

The plaintiff appealed, and the appellate court affirmed. 291 Ill. App. 3d 713. On appeal, the plaintiff challenged only the rulings with respect to the negligence counts of his complaint, counts I, II, and III; he did not challenge the Disposition of the companion counts alleging willful and wanton misconduct. Regarding count I, the appellate court concluded that the defendants were immune from liability under section 3-102(a) of the Tort Immunity Act. Given that result, the appellate court concluded that count II must fail as well, for liability under section 3-103, on which count II was based, will not be found in the absence of liability under section 3-102(a). See Curtis v. County of Cook, 98 Ill. 2d 158, 165 (1983). Finally, the appellate court rejected count III, and the plaintiff's argument that the defendants were liable for their failure to post or maintain proper warning signs at the site. The defendants had appealed separately from an order of the circuit court denying their motion to dismiss the action as barred by the statute of limitations; the appellate court did not address that question, having resolved the other issues in the case in favor of the defendants. We allowed the plaintiff's petition for leave to appeal. 166 Ill. 2d R. 315(a). We later granted leave to the League of Illinois Bicyclists and the Chicagoland Bicycle Federation to submit a joint brief as amici curiae in support of the plaintiff. 155 Ill. 2d R. 345. Orders granting summary judgment are subject to de novo review (Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390 (1993)), and that standard therefore governs our resolution of the present appeal. The plaintiff first argues that the courts below erred in ruling that count I of the third amended complaint was barred by the immunity provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act). Section 3-102(a) of the Tort Immunity Act provides:

"Except as otherwise provided in this Article, a 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, and 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) (West 1996).

In Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 160 (1995), this court explained, "Section 3-102(a) of the Act only imposes a duty of ordinary care on municipalities to maintain property for uses that are both permitted and intended" (emphasis in original). Accordingly, the present plaintiff must qualify as both a permitted and an intended user of the property involved in this case if he is to maintain the action alleged against the defendants in count I of the third amended complaint. In truth, an intended user of property is, by definition, also a permitted user; a permitted user of property, however, is not necessarily an intended user. The defendants contend that the plaintiff, as a bicyclist, was not an intended user of the road and bridge, and that he was, at most, only a permitted user. The question before us, then, concerns whether the plaintiff may also be characterized as an intended user. The plaintiff asserts that the rights of bicycle riders and vehicle drivers are generally coextensive. He observes that bicyclists have traditionally used roads and highways without restriction, and he cites a state statute provision that grants bicyclists the rights and duties of drivers of vehicles. The plaintiff notes further that bicyclists were not excluded from riding on the road where the present accident occurred.

To resolve the plaintiff's status under section 3-102(a), it is appropriate to look at the property involved in determining whether the plaintiff may be considered an intended and permitted user of the road and bridge where the accident occurred. "Whether a particular use of property was permitted and intended is determined by looking to the nature of the property itself." Vaughn, 166 Ill. 2d at 162-63. Moreover, as the statute makes clear, it is the intent of the local public entity that is controlling, for the duty expressed by section 3-102(a) is limited to those "whom the [local public] entity intended and permitted to use the property" (745 ILCS 10/3-102(a) (West 1996)).

The scope of this inquiry is demonstrated by our decision in Wojdyla v. City of Park Ridge, 148 Ill. 2d 417 (1992). In that case, the plaintiff's decedent was struck by a car as he attempted to reach his own vehicle by crossing a highway in the middle of a block, outside any marked pedestrian crosswalk. The plaintiff argued that the decedent was an intended user of the highway where he was crossing and that the city was liable under section 3-102(a) of the Tort Immunity Act for failure to provide sufficient lighting on that portion of the road. The driver of the vehicle that struck the decedent said that he did not see the decedent before the accident occurred. This court concluded that the decedent was not an intended user of that portion of the highway and upheld a grant of summary judgment in favor of the defendant city. The court explained:

"To determine the intended use of the property involved here, we need look no further than the property itself. The roads are paved, marked and regulated by traffic signs and signals for the benefit of automobiles. Parking lanes are set out according to painted blocks on the pavement, signs or meters on the sidewalk or parkway, or painted markings on the curb. Pedestrian walkways are designated by painted crosswalks by design, and by intersections by custom. These are the indications of intended use. That pedestrians may be permitted to cross the street mid-block does not mean that they should have unfettered access to cross the street at whatever time and under whatever circumstances they should so choose. Marked or unmarked crosswalks are intended for the protection of pedestrians crossing streets, and municipalities are charged with liability for those areas. Those areas do not, however, include a highway in mid-block." Wojdyla, 148 Ill. 2d at 426.

Similar reasoning was employed in Vaughn v. City of West Frankfort, 166 Ill. 2d 155 (1995). In that case, the plaintiff was injured when she stepped in a hole while crossing a street in the middle of a block. As in Wojdyla, the question before the court was whether the injured pedestrian was an intended and permitted user of the street where the accident occurred. After observing that a person must be both an intended and a permitted user to avoid the bar of immunity created by section 3-102(a), this court rejected the notion that the manner in which a particular injury occurs is relevant in determining the scope of a municipality's duty under that provision. The court explained:

"[T]he duty of a municipality depends on whether the use of the property was permitted and intended use. [Citation.] Whether a particular use of property was permitted and intended is determined by looking to the nature of the property itself. (Wojdyla, 148 Ill. 2d at 426.) The Illinois legislature has expressly limited the duty of a municipality with regard to maintaining its property to a duty of ordinary care to permitted and intended users of the property. Therefore, the question of whether a municipality owes a duty does not depend on whether the plaintiff-pedestrian was struck by a moving vehicle or tripped over a pothole, but rather depends on whether the municipality intended that the plaintiff-pedestrian walk in that part of the street where the injury occurred and permitted the plaintiff-pedestrian to do so." (Emphasis in original.) Vaughn, 166 Ill. 2d at 162-63.

The Vaughn court concluded that the plaintiff was not an intended user of the street where the accident occurred because she crossed in the absence of any pavement markings or other designations.

A later case, Sisk v. Williamson County, 167 Ill. 2d 343 (1995), similarly declined to impose liability for injuries sustained by an unintended user. The plaintiff in that case struck a bridge with the car he was driving and then got out to investigate the damage to his vehicle. The plaintiff fell to the creek bed below when he stepped off the edge of the pavement, which allegedly was obscured by weeds. This court held that the defendant county owed no duty to the plaintiff under section 3-102(a) of the Tort Immunity Act. The court found distinguishable ...


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