Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Honorable Judge, Presiding. No. 97--L--235
The opinion of the court was delivered by: Justice Slater
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
JUSTICE SLATER delivered the opinion of the court:
Plaintiff Blake Brooks, through his father and next friend Dennis Brooks, sought recovery for injuries he sustained when he fell off his bicycle while riding upon a residential sidewalk in the City of Peoria, Illinois. Plaintiff alleged that the sidewalk had deteriorated at its edges causing plaintiff to slip and fall into an adjacent concrete drainage ditch. Defendant City of Peoria brought a motion for summary judgment and argued that it owed no duty of care to the plaintiff because the plaintiff bicyclist was not an intended user of the sidewalk. The trial court agreed and granted summary judgment in favor of the defendant. Plaintiff appeals.
On July 2, 1997, plaintiff, who was seven years old at the time, was riding his bicycle upon a residential sidewalk in the City of Peoria. Due to an alleged deterioration of the sidewalk, he lost control of his bicycle and fell into an adjacent concrete drainage ditch. Plaintiff sustained severe injuries and sought recovery from the City of Peoria.
Defendant City of Peoria brought a motion for summary judgment, contending that as a matter of law, defendant owed no duty of care to the plaintiff because plaintiff was not an intended user of the sidewalk. In support of this contention, defendant introduced the affidavit of a traffic design engineer for the City of Peoria and a bicycle map showing bicycle routes along streets throughout the City of Peoria. The bicycle route along the street where plaintiff fell is designated a Class III bikeway, which requires the cyclist to share the street with motor vehicles. Opposing defendant's motion for summary judgment, plaintiff argued that provisions of the Peoria Code establish that he was an intended user of the city sidewalk. Plaintiff also argued that historical and customary use of city sidewalks shows that bicyclists, as well as pedestrians, are intended users of the sidewalks.
Relying on the appellate decision in Boub v. Township of Wayne, 291 Ill. App. 3d 713, 684 N.E.2d 1040 (1997), the trial court found insufficient evidence that the City intended for bicyclists to use the sidewalks. Instead, the court found that plaintiff was merely a permitted user of the sidewalk and as such, plaintiff's suit against the City was barred by the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3--102(a) (West 1996)) (Tort Immunity Act). The court then granted defendant's motion for summary judgment.
On appeal, plaintiff alleges that the court (1) erred in finding that the plaintiff was not an intended user of the residential sidewalk and (2) failed to apply the proper standard for granting summary judgment. Because our determination of the first issue is dispositive, we do not reach plaintiff's second contention.
On appeal from the grant of summary judgment, the function of the reviewing court is to determine whether the trial court properly concluded that there were no genuine issues of material fact and that judgment was correct as a matter of law. Booker v. Rogers, 256 Ill. App. 3d 605, 628 N.E.2d 1192 (1994). The reviewing court will consider all grounds urged and facts revealed in the trial court when determining the propriety of the entry of summary judgment. Dunbar v. Latting, 250 Ill. App. 3d 786, 621 N.E.2d 232 (1993). Summary judgment should not be granted unless it is clear that the moving party is truly entitled to it. Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 688 N.E.2d 106 (1997). Orders granting summary judgment are subject to de novo review. Boub v. Township of Wayne, 183 Ill. 2d 520, 702 N.E.2d 535 (1998).
The essential issue on appeal is whether the Tort Immunity Act bars plaintiff's action. Section 3--102(a) of the Tort Immunity Act provides in pertinent part as follows:
"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 ***." (Emphasis added.) 745 ILCS 10/3--102(a) (West 1996). It is well-established that the Tort Immunity Act imposes a duty of care upon municipalities to maintain property only for uses that are both permitted and intended. Boub, 183 Ill. 2d 520, 702 N.E.2d 535; Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 651 N.E.2d 1115 (1995). Accordingly, in order to maintain his action against the City of Peoria, plaintiff bicyclist must qualify as both a permitted and an intended user of the sidewalk. Boub, 183 Ill. 2d 520, 702 N.E.2d 535.
In determining plaintiff's status under section 3-102(a), the supreme court indicated that it is appropriate to look to the nature of the property where the accident occurred. Boub, 183 Ill. 2d 520, 702 N.E.2d ...