A leading appellate attorney reviews the Illinois Supreme Court opinion handed down Thursday, December 14.

Alave v. City of Chicago, 2023 IL 128602

By Michael T. Reagan, Law Offices of Michael T. Reagan

This plaintiff, while riding his personal bicycle in a city street encountered a pothole within a crosswalk he was transiting. He fell and sustained injury. The location of his fall was approximately 100 feet from a Divvy bike share station. Plaintiff filed this case against the City of Chicago, alleging that the City knew or should have known of the pothole, contending that it was caused by cuts made in the roadway which allowed the infiltration of water. Plaintiff further alleged that the City maintained programs to encourage people to ride their own bicycles and to rent Divvy bicycles, and that plaintiff was an intended and permitted user of the roadway.

The City’s section 2-619 motion, which asserted that the plaintiff was not an intended user of the roadway and that the City did not therefore owe a duty to the plaintiff by virtue of section 3-102(a) of the Tort Immunity Act, was granted. The appellate court reversed that dismissal, saying in the first sentence of its opinion that “this is a case of first impression.” The appellate court found that a combination of three factors permitted the conclusion that the City must have intended that the street in question be used by bicyclists: A municipal ordinance prohibited adults from riding bicycles on the sidewalk; the City answered an interrogatory stating that “it is not the City’s expectation that persons using bicycles will walk their bicycles at all points when not in a designated bicycle lane;” and the existence of a Divvy bicycle station close to the site of the accident conveys the City’s intent that the nearby street be used by bicycles.

The Illinois Supreme Court reversed the appellate court and affirmed the circuit court’s judgment of dismissal. The Court granted leave to the Active Transportation Alliance, Illinois Trial Lawyers Association, and Ride Illinois to submit amicus curiae briefs in support of plaintiff.

Section 3-102(a) of the Tort Immunity Act provides that “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 time as it was reasonably foreseeable that it would be used….” The Court’s analysis began with the well-established principle that a duty is to be imposed only for uses that are both permitted and intended. Quoting one of its earlier opinions involving a bicyclist, the Court stated, “In truth, an intended user of property is, by definition, also a permitted user; a permitted user of property, however, is not necessarily an intended user.” Here, the parties agreed that plaintiff was a permitted user of the roadway. The question for decision then was whether plaintiff was also an intended user. This inquiry must be focused upon the nature of the particular property involved. Further, “this inquiry requires a multifactor analysis on a case-by-case basis and is therefore limited to the facts of each case.” Any single factor in isolation is insufficient to show that a particular use is an intended use.

The primary thrust of the plaintiff and the amici was that this case should be regarded as a matter of first impression because of “the expanded use of bicycles and bicycle rentals in the modern era, that did not exist at the time this court issued its opinion (in a prior case involving a bicyclist).” Amici highlighted the evolution of bicycling and urged that “Illinois precedent is not commensurate with the modern bicycle culture.” The Court was unwilling to adopt a new mode of analysis focused on those considerations. “The modern presence of Divvy stations does not alter the fundamentals of our established precedent – it merely incorporates a new factor into the requisite multifactor analysis for determining the intended use of municipal property by looking at the nature of the property involved.”

Justice Overstreet’s opinion for the unanimous court is lengthy, as it worked through the detailed contentions of the parties, such as the Divvy bicycle rental program, the general prohibition against adults riding bicycles on sidewalks (although with some exceptions), the statutory rights of bicyclists while using the street, the official Chicago Bicycling Map for bicycle routes designated by the City, and the implications, if any, of the necessity of bicyclists transiting from Divvy stations to designated City bicycle routes. The resolution of those many arguments will not be recounted in this summary. After working through those considerations in detail, the Court concluded that bicycling was not both a permitted and intended use of the subject roadway at the accident site and that therefore the City did not owe plaintiff a duty of reasonable care under section 3-102(a).