How much protection do Illinois municipalities have from liability for failing to maintain a dangerous bicycle path?
In a decision handed down last week, the Illinois Supreme Court held that cities and towns in our state have quite a lot of protection. However, overturning a 1996 decision by the Illinois appellate court, the Supreme Court ruled that that protection is not limitless.
In Corbett v. The County of Lake, 2017 IL 121536, the Court held that the City of Highland Park did not have blanket immunity for its failure to maintain the Skokie Valley Bike Path where the allegedly poor condition of the path caused serious injury to a bicyclist. Its decision reversed the trial court’s dismissal of the case. The issue was whether Section 3-107(b) of the Local Governmental and Governmental Employees Tort Immunity Act applied to free Highland Park from responsibility for negligently and even willfully and wantonly maintaining (or failing to maintain) the Path. That Section provides, in relevant part that: Neither a local public entity nor a public employee is liable for an injury caused by a condition of : * * * (b) Any hiking, riding, fishing or hunting trail. 745 ILCS 10/3-107(b).
The injured bicyclist, Kathy Corbett, was injured while riding with friends on the Skokie Valley Bike Path in Highland Park when she was thrown from her bike “while riding over the defective portion of the path.” Highland Park argued that because the incident occurred while Ms. Corbett was on a “riding trail,” it could not be held liable for her injuries pursuant to Section 3-107(b). The trial court agreed and dismissed Ms. Corbett’s case. She appealed and the Illinois Second District Court of Appeals reversed the lower court citing an earlier decision in Brown v. Cook County Forest Preserve, 284 Ill.App.3d 1098 (1st Dist. 1996). In Brown, the appellate court held that Section 3-107(b) applied only to trails winding through forests and/or mountainous regions. This time the City appealed. The Supreme Court upheld the appellate court’s reversal, but used an entirely different approach and expressly overturned Brown. The Supreme Court held that it mattered not whether the trail or path ran through a forest or mountains. (FYI: Illinois = no mountains). Instead, given its grouping with “hiking,” “fishing,” and “hunting,” the term “riding trail, as used in Section 3-107(b), was meant “to apply blanket immunity only to primitive, rustic, or unimproved trails.” Since the Skokie Valley Bike Path was paved and “runs through a busy, developed commercial and industrial area” it did not fit that description, and blanket immunity could not apply.
Since the Court’s ruling on November 30th, I have heard from bicycle advocates who have expressed concern that municipalities may be disinclined to install bike paths for fear of being held liable should an injury occur. This concern is not warrantless. In the past, city leaders in Illinois have expressed reticence at building bicycle specific infrastructure without a guarantee of absolute immunity from liability. The Corbett decision need not, however, provoke much worry among municipal leaders. Cities and towns in Illinois are still afforded quite a lot of protection from litigation. The Corbett Court expressly held that a different section of Illinois’s Tort Immunity Statute, 745 ILCS 10/3-106, would apply providing immunity from all but willful and wanton conduct. This is a high bar. An injured person would need to prove that in causing their injury, a municipality acted with a deliberate intent to harm, or demonstrated “an utter indifference to or conscious disregard for the safety of others.” Illinois Pattern Jury Instruction 14.01. Negligence is not enough. This, plus the requirement that a plaintiff demonstrates that a municipality had notice of the dangerous condition, provides substantial protection to municipalities. Citing Corbett as a reason for not building bike trails, should be viewed as pretense or a misunderstanding the protections still provided under Illinois law. The Corbett Court considered the City’s argument that shooting down blanket immunity would discourage the building of bike paths. The Court stated that, “It seems strange to say that a local public entity can build and maintain a bike trail, encourage people to use it, and represent that it is safe but then escape all liability for injuries caused by even the most egregious misconduct in failing to maintain it.”
If you see something, say something
How does one show a “conscious disregard for the safety of others?” By demonstrating that a municipality knew that a trial condition, i.e., a large pothole, existed, that it posed a danger to people on bikes, yet failed to do anything about it. So, if you see something, say something. Report dangerous trail conditions when you see them. Be as specific as possible. Hopefully, the problem is fixed. But if it is not, and someone gets hurt, at least there will be a record showing that the municipality knew about it yet failed to act.
Brendan Kevenides is a bicycle crash attorney in Chicago, IL with Freeman Kevenides Law Firm and represents Bike Law Illinois. He is a certified bicycle instructor by the League of American Bicyclists (LCI #3732), a member of the Chicago Cycling Club’s steering committee and a member of the Active Transportation Alliance’s advisory committee. He is a regular rider during Critical Mass, The Chicago Ride of Silence and other popular cycling events.