702 N.E.2d 535
183 Ill.2d 520, 234 Ill.Dec. 195
Jon P. BOUB, Appellant,
v.
TOWNSHIP OF WAYNE et al., Appellees.
No. 84246.
Supreme Court of
[234 Ill.Dec. 196] [183 Ill.2d 521] Thomas E. Patterson, Hickey, Driscoll, Kurfirst, Patterson & Melia,
Jay S. Judge, Judge, James & Dutton, Ltd.,
Joseph M. Tobias, Joseph M. Tobias & Associates, Ltd., Northfield, Jon A. Duncan, Gene L. Armstrong & Associates, P.C., [183 Ill.2d 522] Oak Park, Robert L. Jones, Jr., Chicago, John Stainthorp, People's Law Office, Chicago, Kurt D. Lloyd, Chicago, for amici curiae League of Illinois Bicyclists, Chicagoland Bicycle Federation, Illinois Trial Lawyers Ass'n.
Justice MILLER delivered the opinion of the court:
The plaintiff, Jon P. Boub, brought this action in the circuit court of Du Page County, seeking recovery against the
The plaintiff commenced the present action on
The plaintiff's third amended complaint sought recovery from the defendants on several different theories of liability. Counts I and IV, sounding in negligence and willful and wanton misconduct, alleged that the defendants violated a duty owed to the plaintiff under section 3-102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3-102(a) (West 1996)) (Tort Immunity Act). Counts II and V alleged negligence and willful and wanton misconduct for failure to comply with certain statutory provisions, including section 3-103 of the Tort Immunity Act (745 ILCS 10/3-103 (West 1996)), in making the improvements to the bridge. Finally, counts III and VI, alleging negligence and willful and wanton misconduct, sought recovery under provisions of the Illinois Vehicle Code for the defendants' asserted failure to properly post warning signs at the bridge. The defendants moved for summary judgment on all six counts. Following a hearing, the trial judge granted the defendants' motion and entered summary judgment in their favor.
The plaintiff appealed, and the appellate court affirmed. 291 Ill.App.3d 713, 226 Ill.Dec. 44, 684 N.E.2d 1040. On appeal, the plaintiff challenged only the rulings with respect to the negligence counts of his complaint, counts I, II, and III; he did not challenge the disposition of the companion counts alleging willful and wanton misconduct. Regarding count I, the appellate court concluded that the defendants were immune from liability under section 3-102(a) of the Tort Immunity Act. Given that result, the appellate court concluded that count II must fail as well, for liability under section 3-103, on which count II was based, will not be found in the absence of liability under section 3-102(a). Curtis v. County of Cook, 98 Ill.2d 158, 165, 74 Ill.Dec. 614, 456 N.E.2d 116 (1983). Finally, the appellate court rejected count III, and the plaintiff's argument that the defendants were liable for their failure to post or maintain proper warning signs at the site. The defendants had appealed separately from an order of the circuit court denying their motion to dismiss the action as barred by the statute of limitations; the appellate court did not address that question, having resolved the other issues in the case in favor of the defendants. We allowed the plaintiff's petition for leave to appeal. 166 Ill.2d R. 315(a). We later granted leave to the League of Illinois Bicyclists and the Chicagoland Bicycle Federation to submit a joint brief as amici curiae in support of the plaintiff. 155 Ill.2d R. 345.
Orders granting summary judgment are subject to de novo review (Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill.2d 384, 390, 189 Ill.Dec. 756, 620 N.E.2d 1073 (1993), and that standard therefore governs our resolution of the present appeal. The plaintiff first argues that the courts below erred in ruling that count I of the third amended complaint was barred by the immunity provisions of the Tort Immunity Act. Section 3-102(a) of the Tort Immunity Act provides:
"Except as otherwise provided in this Article, 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 times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition." 745 ILCS 10/3-102(a) (West 1996).Vaughn v. City of West Frankfort, 166 Ill.2d 155, 160, 209 Ill.Dec. 667, 651 N.E.2d 1115 (1995), this court explained, "Section 3-102(a) of the Act only imposes a duty of ordinary care on municipalities to maintain property for uses that are both permitted and intended " (emphasis in original). Accordingly, the present plaintiff must qualify as both a permitted and an intended user of the property involved in this case if he is to maintain the action alleged against the defendants in count I of the third amended complaint. 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. The defendants contend that the plaintiff, as a bicyclist, was not an intended user of the road and bridge, and that he was, at most, only a permitted user. The question before us, then, concerns whether the plaintiff may also be characterized as an intended user. The plaintiff asserts that the rights of bicycle riders and vehicle drivers are generally coextensive. He observes that bicyclists have traditionally used roads and highways without restriction, and he cites a state statute provision that grants bicyclists the rights and duties of drivers of vehicles. The plaintiff notes further that bicyclists were not excluded from riding on the road where the present accident occurred.
To resolve the plaintiff's status under section 3-102(a), it is appropriate to look at the property involved in determining whether the plaintiff may be considered an intended and permitted user of the road and bridge where the accident occurred. "Whether a particular use of property was permitted and intended is determined by looking to the nature of the property itself." Vaughn, 166 Ill.2d at 162-63, 209 Ill.Dec. 667, 651 N.E.2d 1115. Moreover, as the statute makes clear, it is the intent of the local public entity that is controlling, for the duty expressed by section 3-102(a) is limited to those "whom the [local public] entity intended and permitted to use the property" (745 ILCS 10/3-102(a) (West 1996)).
The scope of this inquiry is demonstrated by our decision Wojdyla v. City of Park Ridge, 148 Ill.2d 417, 170 Ill.Dec. 418, 592 N.E.2d 1098 (1992). In that case, the plaintiff's decedent was struck by a car as he attempted to reach his own vehicle by crossing a highway in the middle of a block, outside any marked pedestrian crosswalk. The plaintiff argued that the decedent was an intended user of the highway where he was crossing and that the city was liable under section 3-102(a) of the Tort Immunity Act for failure to provide sufficient lighting on that portion of the road. The driver of the vehicle that struck the decedent said that he did not see the decedent before the accident occurred. This court concluded that the decedent was not an intended user of that portion of the highway and upheld a grant of summary judgment in favor of the defendant city. The court explained:
"To determine the intended use of the property involved here, we need look no further than the property itself. The roads are paved, marked and regulated by traffic signs and signals for the benefit of automobiles. Parking lanes are set out according to painted blocks on the pavement, signs or meters on the sidewalk or parkway, or painted markings on the curb. Pedestrian walkways are designated by painted crosswalks by design, and by intersections by custom. These are the indications of intended use. That pedestrians may be permitted to cross the street mid-block does not mean that they should have unfettered access to cross the street at whatever time and under whatever circumstances they should so choose. Marked or unmarked crosswalks are intended for the protection of pedestrians crossing streets, and municipalities are charged with liability for those areas. Those areas do not, however, include a highway in mid-block." Wojdyla, 148 Ill.2d at 426, 170 Ill.Dec. 418, 592 N.E.2d 1098.
Similar reasoning was employed Vaughn v. City of West Frankfort, 166 Ill.2d 155, 209 Ill.Dec. 667, 651 N.E.2d 1115 (1995). In that case, the plaintiff was injured when she stepped in a hole while crossing a street in the middle of a block. As in Wojdyla, the question before the court was whether the injured pedestrian was an intended and permitted user of the street where the accident occurred. After observing that a person must be both an intended and a permitted user to avoid the bar of immunity created by section 3-102(a), this court rejected the notion that the manner in which a particular injury occurs is relevant in determining the scope of a municipality's duty under that provision. The court explained:
"[T]he duty of a municipality depends on whether the use of the property was a permitted and intended use. [Citation.] Whether a particular use of property was permitted and intended is determined by looking to the nature of the property itself. (Wojdyla, 148 Ill.2d at 426, 170 Ill.Dec. 418, 592 N.E.2d 1098.) The
The Vaughn court concluded that the plaintiff was not an intended user of the street where the accident occurred because she crossed in the absence of any pavement markings or other designations.
A later case, Sisk v. Williamson County, 167 Ill.2d 343, 212 Ill.Dec. 558, 657 N.E.2d 903 (1995), similarly declined to impose liability for injuries sustained by an unintended user. The plaintiff in that case struck a bridge with the car he was driving and then got out to investigate the damage to his vehicle. The plaintiff fell to the creek bed below when he stepped off the edge of the pavement, which allegedly was obscured by weeds. This court held that the defendant county owed no duty to the plaintiff under section 3-102(a) of the Tort Immunity Act. The court found distinguishable cases allowing recovery when persons are injured by conditions of the pavement in areas where cars are intended to park. The court explained:
"In contrast, there are no such manifestations to indicate that Williamson County intended pedestrians to walk on its country roads, much less the specific road and bridge complained of by plaintiff in the case at bar. As the appellate court noted, there are no walkways or crosswalks on rural country roads such as the county-line road in this case. Further, many country roads are gravel roads and often have no shoulder. We believe that the inference to be drawn from these facts, if any, is that municipalities do not intend that pedestrians walk on rural country roads. Although it may become necessary at times for pedestrians to walk on country roads, such use is not a manifestation of the local municipality's intent that pedestrians walk on its country roads or an undertaking by the municipality to make country roads free from defects that might injure pedestrians." Sisk, 167 Ill.2d at 351-52, 212 Ill.Dec. 558, 657 N.E.2d 903.
Guided by the preceding discussions in Wojdyla, Vaughn, and Sisk, we turn now to the site of the present accident. We recognize the factual differences that exist between this case and the pedestrian cases surveyed above. Bicyclists, unlike pedestrians, are guided by some of the same signs and pavement markings that motorists observe. Still, we believe that the same considerations present in our decisions in those cases are also relevant here in determining whether the plaintiff was an intended user--rather than simply a permitted user--of the road and bridge. In determining
That the township, after the plaintiff's accident, later erected signs--a bicycle symbol and the legend, "Slippery when wet"--at the approaches to the bridge does not signify to us the township's intent before the accident here. Subsequent remedial measures or warnings, of course, may not be used as evidence of negligence. Herzog v.
The plaintiff raises several arguments in support of his contention that he was an intended user of the road and bridge where his accident occurred. The plaintiff notes that section 11-1502 of the state Vehicle Code provides that "[e]very person riding a bicycle upon a highway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this Code * * *." 625 ILCS 5/11-1502 (West 1996).
The defendants do not concede that state statutes are applicable in determining
Moreover, other statutory provisions suggest that bicyclists are generally not intended users of
Similarly, the Highway Code defines "highway" in the following manner:
"Highway--any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years * * *. The term 'highway' includes rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other structures and appurtenances necessary or convenient for vehicular traffic. A highway in a rural area may be called a 'road', while a highway in a municipal area may be called a 'street'." 605 ILCS 5/2-202 (West 1996).
As the defendants contend, the preceding definitions suggest that highways, streets, roads and bridges in
We do not construe
"We are not persuaded by defendant's argument that parkways are areas of beauty that were constructed with the intention that they only be looked at and not walked upon. It is this court's opinion that parkways, while [183 Ill.2d 532] beautifying the street, are also intended for the limited use of pedestrians, such as the plaintiff in the instant case."
The court then noted the different manners in which pedestrians have used parkways in the past. Rather than establish historical practice as the touchstone by which intended use must be measured, the
In addition, amici observe that the portion of
"Second, the appellate court apparently failed to recognize the difference between 'permitted' and 'intended' uses under section 3-102(a) of the Act. The court noted that rural country roads are commonly used by persons other than drivers of automobiles, listing such uses as horseback riding, bicycling, jogging, walking and driving farm equipment. [Citation.] However, most of the activities listed are also common uses of city and residential streets.
As Sisk noted, a broad range of permitted uses by different groups of users is compatible with an intended use only by vehicles. The county board's designation of this road as one suitable for bicycle riding is not inconsistent with our conclusion that bicyclists are not intended users of the road. Moreover, we iterate that our inquiry is limited under section 3-102(a) to determining the intent of the local public entity,
The plaintiff argues further that this result is inconsistent with the decision Molway v. City of Chicago, 239 Ill. 486, 88 N.E. 485 (1909). Citing Molway, the plaintiff contends that bicyclists must be considered intended and permitted users of
We do not find Molway persuasive in the present context. As an initial matter, we must observe that the decision in that case predates by many years the enactment of the Tort Immunity Act, and the Molway court therefore was not required to consider whether that plaintiff was an intended and permitted user of the street in question. Moreover, the accident in Molway occurred in 1905, long before motorized vehicles became the predominant users of
"The plaintiff cites Molway [citation] in support of his contention that he was an intended user. In Molway the court found that the City of
For similar reasons, we do not find Molway controlling here. See also Wojdyla, 148 Ill.2d at 423-24, 170 Ill.Dec. 418, 592 N.E.2d 1098.
The plaintiff also contends that the appellate court's result in this case conflicts with the decisions of the appellate court Filipetto v. Village of Wilmette, 254 Ill.App.3d 461, 193 Ill.Dec. 901, 627 N.E.2d 60 (1993), and Bauer v. H.H. Hall Construction Co., 140 Ill.App.3d 1025, 95 Ill.Dec. 79, 489 N.E.2d 31 (1986). Though we are not bound by decisions of the appellate court, we note that the cases cited by the plaintiff are distinguishable from the present one, and therefore we do not discern the same conflict perceived by the plaintiff. The plaintiff in Filipetto, a bicycle rider, was injured when he struck a compressor that was located in a lane of the street in which he was riding his bicycle. The jury returned a verdict in favor of the plaintiff. The appellate court discussed section 3-102(a) of the Tort Immunity Act, but did not address the plaintiff's status as an intended and permitted user. Bauer, also cited by the plaintiff, involved a collision between a bicyclist and a highway barricade. The action in that case was brought under a different statute, the Road Construction Injuries Act, and no question arose regarding the plaintiff's classification as an intended and permitted user under section 3-102(a) of the Tort Immunity Act.
Amici also invoke a number of policy considerations in support of the imposition of liability in this case. They argue that granting the defendants immunity would only serve to create a powerful disincentive to the continual upgrading and improvement of bicycle routes in the state. They note that the Illinois Department of Transportation has directed that bicycle safety concerns should be considered when improvements to roads are made. We believe that these questions of public policy, however, are better resolved by the legislative branch of government than by the judicial branch.
Indeed, the potential implications of such a shift in policy are substantial and far-reaching, and we do not believe that the legislature intended to impose liability in these circumstances. Simply put, many road conditions that do not pose hazards to vehicles may represent special dangers to bicycles, and imposition of liability in this case would, we believe, open the door to liability for a broad range of pavement conditions, such as potholes, speed bumps, expansion joints, sewer grates, and rocks and gravel, to name but a few. By the same token, we believe that imposition of municipal liability in the circumstances shown here is more appropriate for the legislature to initiate, if it is to be done at all. In this regard, it is appropriate to consider the potentially enormous costs both of imposing liability for road defects that might injure bicycle riders and of upgrading road conditions to meet the special requirements of bicyclists. Vaughn, 166 Ill.2d at 164, 209 Ill.Dec. 667, 651 N.E.2d 1115 ("The costs of making all public streets and roadways reasonably safe for unrestricted pedestrian use would be an extreme burden on municipalities with limited resources"); see also Sisk, 167 Ill.2d at 352, 212 Ill.Dec. 558, 657 N.E.2d 903.
In sum, there are no affirmative manifestations here that
Before this court, the plaintiff briefly raises the additional argument that liability may be found under count III of his third amended complaint. Count III seeks recovery under section 11-304 of the Vehicle Code (625 ILCS 5/11-304 (West 1996)) for the defendants' failure to properly post warning signs at the bridge while the renovation project was underway.
Our cases have found immunity under section 3-104 of the Tort Immunity Act (745 ILCS 10/3-104 (West 1996)) for the initial failure to provide specific warning devices. Snyder v. Curran Township, 167 Ill.2d 466, 212 Ill.Dec. 643, 657 N.E.2d 988 (1995); West v. Kirkham, 147 Ill.2d 1, 167 Ill.Dec. 974, 588 N.E.2d 1104 (1992). The plaintiff contends, however, that trucks parked on the roadway in front of the bridge by the construction crew during the workday represented barricades, and that the defendants negligently failed to maintain them there after the crew finished working and left. Without determining here whether trucks may constitute barricades for purposes of section 3-104 of the Tort Immunity Act, we must reject this additional basis for recovery. As the appellate court noted and the defendants contend, the plaintiff has attempted to introduce a new theory in support of liability under this count, for he failed to make the same allegation in his third amended complaint. 291 Ill.App.3d at 725-26, 226 Ill.Dec. 44, 684 N.E.2d 1040. The plaintiff cannot now attempt to introduce this new element into the case. Haudrich v. Howmedica, Inc., 169 Ill.2d 525, 536, 215 Ill.Dec. 108, 662 N.E.2d 1248 (1996).
Given our result here, we have no occasion to address the defendants' alternative contention that the action is barred by the statute of limitations.
For the reasons stated, the judgment of the appellate court, affirming the judgment of the circuit court of Du Page County, is affirmed.
Judgment affirmed.
Justice HEIPLE, dissenting:
The majority holds that bicyclists are not intended users of roadways. I respectfully dissent from this absurd and dangerous proposition.
On
A local public entity has a duty to maintain its roads in a safe condition for the roads' intended users. 745 ILCS 10/3-102 (West 1992). The majority's conclusion that bicyclists are not intended users of roads defies common sense, contravenes statutory authority, and frustrates public policy.
Both motorists and bicyclists commonly recognize that, in the absence of a designated corridor for bike riding, bikes are intended to share the road with automobiles. Even schoolchildren are taught to ride their bikes on the right side of the road, to obey all traffic laws, and to use appropriate signals to communicate with motorists. The majority's assertion that bicyclists are not intended users of roadways therefore contradicts the experience, understanding and training of reasonable people.
Numerous statutes and regulations validate this common perception that bicyclists are intended to use public roads. First, the Illinois Vehicle Code provides that bicyclists "shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle." 625 ILCS 5/11-1502 (West 1992). The Vehicle Code then proceeds to specify the areas and manner in which bicyclists are required to ride on roadways. 625 ILCS 5/11-1503 through 11-1514 (West 1992). Second, the State of
The majority attempts to dismiss these statutory and regulatory provisions by arguing that they do not demonstrate the intent of
The majority also counters the cited provisions with statutory definitions establishing that the primary purpose of
Finally, the majority's holding is both irrational and dangerous as a principle of public policy. The accident which befell plaintiff in this case could just as easily have befallen a motorcyclist, but under the majority's standard, the latter could recover while the former cannot. There is no rational basis for this distinction. Furthermore, under the majority's standard, even a road condition which is dangerous to automobiles would not be sufficient to create a legal duty to the instant plaintiff. For example, if the construction crew had removed the entire bridge without closing off the area to traffic, a motorist whose car crashed into the abyss could maintain a suit against the Township, while plaintiff, after suffering the same fate on his bicycle, could not. This conclusion was conceded by defendants' counsel at oral argument. See also Bauer v. H.H. Hall Construction Co., 140 Ill.App.3d 1025, 1030, 95 Ill.Dec. 79, 489 N.E.2d 31 (1986) (noting anomaly of allowing a motorist to bring an action for injuries sustained in an accident while precluding a bicyclist from bringing an action for the same type of accident).
Besides depriving injured bicyclists of just compensation for their injuries, the principal effect of the majority decision will be to discourage municipalities from taking any measures to make roads safer and more hospitable for bicyclists. Because the majority precludes liability whenever the municipality in question does not intend for bicyclists to use its roads, a loss-averse municipality, in order to minimize its exposure to liability, might [183 Ill.2d 540] remove from its roads any evidence that bicyclists are intended users, such as bike lanes or special signs. Bicyclists would then be in even more jeopardy than that occasioned by today's decision. Given the majority's ruling, the only safe bicycle in
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