Potholes in the Street.

This week I got a call from a guy who was injured when he hit a pothole on Chicago Avenue. The pothole was deep, and an obvious hazard to bicyclists who might venture across that stretch of Chicago Avenue. The stretch of Chicago avenue where the crash occurred was not a marked bike route or bike lane. The cyclist was injured in the fall. He called me wanting to know if there was any recourse against the City for failure to maintain the roadway.

In such an instance there is no recourse against a city or county unless the pothole is located in a marked bicycle lane or along a marked bicycle route. This is a result of the Tort Immunity Act, as interpreted through the infamous case of Boub v. Wayne Township.

On September 8, 1992, John Boub was riding his bicycle on St. Charles Road in Wayne Township. Mr. Boub came upon and attempted to cross a bridge. What he didn't realize as he approached the bridge is that construction crews had removed planks from the bridge surface in preparation for the installation of a new deck. The crews had left the bridge in a condition that was adequate for cars to cross, but apparently unsafe for bicycles. As Mr. Boub attempted to cross the bridge his front wheel became lodged between two pieces of decking and he was violently thrown from his bike. He suffered several injuries as a result of the crash.

His case eventually worked it's way up to the Illinois Supreme Court. The Court threw out Mr. Boub's claim based on the argument that as a bicyclist, Mr. Boub was not an intended user of the road. In order to recover from a city, county or any other governmental entity for defects in the road one must start by showing two things: permission and intent. First, the injured person must show that the government permitted them to use the road. Second, the person must show that the government intended that the individual use the roadway. The Illinois Supreme Court noted that bicycles have a legal right to use roads in Illinois, therefore bicyclists are clearly permitted users of the roads. With respect to the intended use, the Court held that bicycles are intended only in instances where the government marks or designates roads for use by bicycles through bicycle routes or bicycle lanes.

The end result is that cities, counties and governmental entities cannot be sued by bicyclists for defects on roadways that are not designated for use by bicycles through marked bicycle routes or bike lanes, such as the pothole on Chicago Avenue. There are some efforts in the works to change the effects of this decision, however, any real change is probably years away at the least. In the meantime cyclists must be cautious of defects in the roadways. Go around potholes.