Illinois Supreme Court rules Chicago not liable for pothole on street not ‘intended’ for cyclists

Bicyclists are almost always “permitted” users of the road – but are only “intended” users of the road when bike lanes or signage are present, the Illinois Supreme Court ruled last week.

That distinction means the city of Chicago is not liable for damages sustained by a bicyclist who was injured after he hit a pothole on a city street that had no such signage.

In June 2019, Clark Alave was biking on the North Side of Chicago when he hit a pothole in a crosswalk and fell off his bicycle, resulting in fractured teeth, cuts on his face and other bodily injuries, according to court records.

Alave filed a complaint for negligence against the city, alleging it neglected its duty to maintain the crosswalk, resulting in the pothole that ended up injuring him.

Alave’s complaint argued the city owed him a reasonable duty of care. A state appellate court agreed and sided with Alave, but in a unanimous decision published Dec. 14, the Illinois Supreme Court reversed that decision and sided with the city.

The case pertained to a section of the Tort Immunity Act, which states local public entities have a duty to maintain property in a safe condition for “people whom the entity intended and permitted to use the property.” The act also notes a public entity “shall not be liable for injury” unless it received notice of an unsafe condition in enough time to remedy it prior to the injury.

Ultimately, the case came down to whether bikers are always “intended” users of roadways, particularly without the immediate presence of bike lanes, or whether they are simply “permitted” users.

The court cited a 4-3 decision from 1998 in the case of Boub v. Township of Wayne, which held, “Bicyclists are permitted, but not intended, users of the roads, in the absence of specific markings, signage.”

Although there was no signage indicating bicyclists could ride on West Leland Avenue where the accident occurred, the plaintiff’s legal team argued the presence of a Divvy bikeshare station “about 100 feet away from the pothole” was an indication of the City’s intended use of the street for bicycles.

An appellate court agreed with the assertion, but the Supreme Court rejected it.

Justice David K. Overstreet authored last week’s opinion, with the other six justices concurring. Overstreet wrote that because bicyclists could ride on the sidewalk adjacent to the Divvy station, riding on the pothole-ridden street was not a “necessity” for Alave.

“There should be some responsibility, and the fact that bicycles are permitted – and not intended users – of the road just thwarts our efforts to make biking, in turn walking, something that more people can use to get around or enjoy.”

—  Dave Simmons, executive director of Ride Illinois

The opinion cites the Chicago Municipal Code, which grants bicyclists the right to ride on city streets but specifically states, “This does not mean that the City intended bicyclists to use every roadway in the city that motorists are intended to use.”

In April, a pair of biking advocacy nonprofits, the Active Transportation Alliance and Ride Illinois, filed amicus briefs in support of the plaintiff. The Illinois Trial Lawyers Association also filed a brief in support of Alave.

Dave Simmons, executive director of Ride Illinois, said in an interview with Capitol News Illinois he and other advocates have been “frustrated” with the 1998 decision and now the 2023 decision. He said that while people shouldn’t be able to sue municipalities on a whim, some regulations would benefit everyone.

“There should be some responsibility, and the fact that bicycles are permitted – and not intended users – of the road just thwarts our efforts to make biking, in turn walking, something that more people can use to get around or enjoy,” Simmons said.

During the oral arguments before the Supreme Court in September, Stephen Collins, counsel for the city, referenced the Boub decision.

In that decision, he said, the court “recognized the tremendous cost to municipalities that would be associated with making all roadways in a reasonably safe condition for bicycling.”

“In my view, that would just be prohibitively expensive,” he said.

Justice Lisa Holder White asked Collins if bikers in permitted but not intended areas are “biking at their own risk.”

“That’s right, Your Honor,” Collins said.

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