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Latimer v. Chicago Park District

June 12, 2001

DONNITA LATIMER, PLAINTIFF-APPELLANT,
v.
THE CHICAGO PARK DISTRICT, A MUNICIPAL CORPORATION, DEFENDANT (THE CITY OF CHICAGO, A MUNICIPAL CORPORATION DEFENDANT-APPELLEE).



Apeal from the Circuit Court of Cook County. No. 94 L 7968 Honorable Sophia H. Hall, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cahill

Not Released For Publication

DONNITA LATIMER, PLAINTIFF-APPELLANT,
v.
THE CHICAGO PARK DISTRICT, A MUNICIPAL CORPORATION, DEFENDANT (THE CITY OF CHICAGO, A MUNICIPAL CORPORATION DEFENDANT-APPELLEE).

Apeal from the Circuit Court of Cook County. No. 94 L 7968 Honorable Sophia H. Hall, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cahill

Plaintiff Donnita Latimer brought this negligence action against defendant, the City of Chicago, seeking damages for injuries she sustained in a bicycle accident on a Chicago street. The circuit court granted defendant's motion for summary judgment, finding that plaintiff was a permitted but not intended user of the street. On appeal, plaintiff contends that the trial court erred in ruling that defendant was immune from liability under section 3-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/3-101 et seq. (West 1998)).

 The complaint alleged that on October 7, 1993, plaintiff was injured when she fell from her bicycle on a part of Clyde Avenue where the pavement was broken and uneven. Plaintiff alleged that defendant had negligently maintained the street where she fell. Plaintiff does not dispute that the accident happened at a place on the street where there were no bicycle lane markings.

A complaint for negligence must establish that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the plaintiff sustained an injury proximately caused by the breach. Marshall v. City of Centralia, 143 Ill. 2d 1, 6 (1991). Whether the defendant owes a duty of care to the plaintiff is a question of law. Marshall, 143 Ill. 2d at 6. Summary judgment is appropriate if the pleadings, depositions, and admissions on file, together with affidavits, present no genuine issue of material fact and show the moving party is entitled to judgment as a matter of law. Wallace v. Metropolitan Pier & Exposition Authority, 302 Ill. App. 3d 573, 576 (1998). Motions for summary judgment are reviewed de novo. Wallace, 302 Ill. App. 3d at 576.

The duty of a municipality to maintain property is limited by section 3-102 of the Tort Immunity Act. Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 158 (1995). Under section 3-102(a), a municipality must "exercise ordinary care to maintain its property in a reasonably safe condition for the use *** of people whom the entity intended and permitted to use the property." 745 ILCS 10/3-102(a) (West 1998). The duty extends only to uses that are both permitted and intended. Vaughn, 166 Ill. 2d at 160. The duty of care is determined by the municipality's intended use of a property, not the intent of the user. Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 425-26 (1992). To hold otherwise would negate section 3-102(a), as the use intended by the municipality would not control. Wojdyla, 148 Ill. 2d at 425. The intended use of the property may be determined by looking to the nature of the property. Wojdyla, 148 Ill. 2d at 426.

The issue whether bicyclists are intended or permitted users of Illinois streets was examined by the Illinois Supreme Court in Boub v. Township of Wayne, 183 Ill. 2d 520 (1998). In Boub, the plaintiff was cycling across a bridge when the front tire of his bicycle became stuck between two wooden planks of the bridge. The plaintiff was thrown from the bicycle and injured. The plaintiff and amici argued on several grounds that the plaintiff was an intended user of the road and bridge where his accident occurred.

First, the plaintiff cited section 11-1502 of the Illinois Vehicle Code, which provides that bicyclists riding on streets possess all the rights and are subject to all the duties applicable to vehicle drivers. 625 ILCS 5/11-1502 (West 1998). According to the plaintiff, this section supports the conclusion that bicyclists are, like vehicle drivers, intended and permitted users of Illinois streets. The supreme court found such a conclusion unsupported by section 11-1502 and found instead that the provision was designed to ensure that bicyclists obey traffic laws, for their own safety and for the safety of others. Boub, 183 Ill. 2d at 529-30.

Next, amici argued that because bicyclists' use of the roads is both customary and traditional, it must also be both permitted and intended. The supreme court found that historical practice alone is insufficient to establish whether a particular use of public property is an intended one. Boub, 183 Ill. 2d at 531. Third, amici observed that the portion of the road where the accident happened was designated "a through street generally suitable for bicycling" by the DuPage County board. Boub, 183 Ill. 2d at 532. The supreme court found that such designation was consistent with the conclusion that bicyclists were not intended but merely permitted users of the road. Boub, 183 Ill. 2d at 532.

Fourth, the plaintiff argued that to hold that bicyclists are permitted but not intended users of streets is inconsistent with the holding in Molway v. City of Chicago, 239 Ill. 486 (1909). The supreme court concluded that because Molway was decided more than 50 years before the Tort Immunity Act was enacted, Molway was not controlling. Boub, 183 Ill. 2d at 533-34. Fifth, the plaintiff argued that to hold that bicyclists are permitted but not intended users of Illinois streets conflicts with the holdings of Filipetto v. Village of Wilmette, 254 Ill. App. 3d 461 (1993), and Bauer v. H.H. Hall Construction Co., 140 Ill. App. 3d 1025 (1986). The supreme court found that neither of these cases discussed the plaintiff bicyclist's status as an intended and permitted user, and therefore neither case was persuasive. Boub, 183 Ill. 2d at 534.

Finally, amici invoked several policy considerations in favor of imposing liability on the defendant. The supreme court stated that the questions of policy raised by amici are better resolved by the legislative branch of ...


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