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Corbett v. County of Lake

Court of Appeals of Illinois, Second District

September 23, 2016

KATHY CORBETT, Plaintiff-Appellant,
v.
THE COUNTY OF LAKE and THE CITY OF HIGHLAND PARK, Defendants The City of Highland Park, Defendant-Appellee

         Appeal from the Circuit Court of Lake County, No. 14-L-493; the Hon. Christopher C. Starck, Judge, presiding.

         Affirmed in part and reversed in part; cause remanded.

          Peter F. Higgins, of Lipkin & Higgins, of Chicago, for appellant.

          Michael G. Nerheim, State's Attorney, of Waukegan (Janelle K. Christensen and Kevin J. Berrill, Assistant State's Attorneys, of counsel), for appellee.

          Panel PRESIDING JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Hutchinson and Burke concurred in the judgment and opinion.

          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 severely injured.

         ¶ 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 ...


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