from the Circuit Court of Lake County, No. 14-L-493; the Hon.
Christopher C. Starck, Judge, presiding.
in part and reversed in part; cause remanded.
F. Higgins, of Lipkin & Higgins, of Chicago, for
Michael G. Nerheim, State's Attorney, of Waukegan
(Janelle K. Christensen and Kevin J. Berrill, Assistant
State's Attorneys, of counsel), for appellee.
PRESIDING JUSTICE SCHOSTOK delivered the judgment of the
court, with opinion. Justices Hutchinson and Burke concurred
in the judgment and opinion.
SCHOSTOK, PRESIDING JUSTICE
1 Plaintiff, Kathy Corbett, was seriously injured while
riding her bicycle on the Old Skokie Bike Path in Lake
County. She filed this action against defendants, the County
of Lake (County) and the City of Highland Park (City),
alleging that they were liable for defects in the path that
caused her accident. The trial court granted both defendants
summary judgment (735 ILCS 5/2-1005(c) (West 2014)), based on
the Local Governmental and Governmental Employees Tort
Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West
2012)). Plaintiff appeals only the judgment in favor of the
City, arguing that the trial court erred in holding that the
City was immune from liability because, as a matter of law,
the bicycle path was a "riding trail" within the
meaning of section 3-107(b) of the Act (745 ILCS 10/3-107(b)
(West 2012)). We reverse the judgment in favor of the City,
and we remand.
2 We summarize the facts pertinent to this appeal.
Plaintiff's complaint alleged as follows. On August 21,
2013, and at all other pertinent times, defendants controlled
and maintained that part of the path within Highland Park and
specifically the section of the path running parallel to
Skokie Valley Road (U.S. Route 41) in between the
intersections with Old Deerfield Road and Park Avenue West.
By agreement with the County, the City was responsible for
routine maintenance of the path, including repairing the
pavement. Before August 21, 2013, defendants were on notice
that weeds and other vegetation were growing through the
asphalt, making portions of the path broken, bumpy, and
elevated. Defendants were willfully and wantonly indifferent
to the danger. On August 21, 2013, plaintiff, part of a group
of cyclists riding together, rode her bicycle over a
defective area and was thrown off. She hit the ground and was
3 The City's answer raised the affirmative defense of
immunity under section 3-107(b) of the Act, which reads,
"Neither a local public entity nor a public employee is
liable for an injury caused by a condition of *** [a]ny
hiking, riding, fishing or hunting trail." 745 ILCS
10/3-107(b) (West 2012). The City later moved for summary
judgment, based on section 3-107(b) of the Act. The City
noted that this section provides absolute immunity, even as
to willful and wanton conduct. The City then argued that,
under the limited case authority that exists on the meaning
of "riding trail" (which the Act does not define),
the bike path was one.
4 The City's motion reasoned as follows. In Brown v.
Cook County Forest Preserve, 284 Ill.App.3d 1098, 1101
(1996), the First District held that the bicycle path on
which the plaintiff was injured was a "riding trail,
" because it was commonly used by cyclists and was
"designed to provide access for bicyclists to the
natural and scenic wooded areas" around Saulk Lake. The
court held that it made no difference that the path was
paved. Id. In McElroy v. Forest Preserve
District, 384 Ill.App.3d 662 (2008), and Mull v.
Kane County Forest Preserve District, 337 Ill.App.3d 589
(2003), this court held that the bicycle paths at issue were
riding trails per section 3-107(b). In McElroy, this
court emphasized (according to the City's motion) that
the path had been built for the use of riders and enabled
them to enjoy scenery and wildlife. McElroy, 384
Ill.App.3d at 669. In Mull, this court stressed
(according to the City's motion) that, although the path
ran through some developed areas, it was surrounded by wild
grasses and shrubs. Mull, 337 Ill.App.3d at 592.
5 Here, the City's motion argued, the depositions of
plaintiff and other people established that the bike path was
a "riding trail." It was intended for recreational
bicycling; surrounded by shrubs, trees, and wild grasses;
separated from residences and commercial businesses; and set
back from the roadway. "Most compelling, "
plaintiff and her fellow riders called it "the
'bunny trail' because of the bunnies that were
regularly present along the route."
6 The City's motion attached several exhibits, the
pertinent parts of which we summarize. In her deposition,
plaintiff testified that the southern end of the part of the
path at issue was the intersection with Old Deerfield Road,
which has two lanes. At the intersection, there is a stop
sign for bicyclists on the path but not for vehicles on the
road. On August 21, 2013, plaintiff was with a group with
whom she regularly rode.
7 Plaintiff testified that, just before the accident, the
group was riding south toward the intersection. About
one-tenth of a mile north of the stop sign at the
intersection, the person two places ahead of her, Hassan
Syed, hit a bump and lost control of his bicycle. Syed
crashed, and his bike was turned sideways. The rider
immediately in front of plaintiff was able to veer off.
However, plaintiff had no place to go; she rode over Syed and
his bicycle. As a result, she was thrown off her bike, rose
into the air, and fell hard onto the paved surface. Plaintiff
did not actually see Syed hit a bump, but he or another rider
told her about it later.
8 Opposing counsel asked plaintiff whether the area of the
accident was "surrounded by shrubs" and "wild
grasses, " whether it was "separated from
residences" and "commercial businesses, " and
whether it was "set back from the highway."
Plaintiff answered each question, "Yes." Plaintiff
also testified that her accident occurred "just north of
Old Deerfield Road on the bunny trail. The bike path. We call
it the ...