Hepler Broom, LLC

First District Creates Narrow Exception to Tort Immunity Act

May 24, 2022

by Stephanie Weiner

A recent ruling by Illinois’ First District Appellate Court has carved out a narrow exception to the Tort Immunity Act.

Case Background

In 2019, Plaintiff was riding his bicycle within a crosswalk on a Chicago city street when he hit a pothole and fell, sustaining injuries. The area where he fell was 100 feet from a Divvy bike rental location (a place where the general public can rent bicycles), although Plaintiff was not riding a Divvy bike at the time of his fall. Plaintiff filed a complaint of negligence against the City of Chicago (Alave v. City of Chicago).

The circuit court granted the City’s section 5/2-619(a)(9) motion to dismiss, finding that under the Tort Immunity Act, the plaintiff bicyclist was not an intended and permitted user of the roadway and therefore the City owed no duty to this plaintiff to maintain the crosswalk. To support this finding, the court noted, inter alia, that pedestrians are the only intended and permitted users of crosswalks, and the plaintiff cyclist was neither an intended nor permitted user of that roadway.

Plaintiff appealed the circuit court’s finding.

Appellate Court Ruling

The limited issue on appeal was a matter of first impression for the First District: Did the City owe a duty to the plaintiff cyclist in that particular area of the roadway since it was adjacent to a Divvy bike station; or, to state it differently, did the presence of the bike rental station make cyclists intended and permitted users of that particular area of roadway?

In overruling the circuit court, the First District answered that inquiry in the affirmative. In so holding, the court looked at the narrow issue of the “relevance of bicycle rental stations to the intended use of nearby streets.” The court found that the City clearly intended bicycles be ridden on roadways adjacent to Divvy stations. The fact that there is a bicycle lane “very close” to the station supports the inference that streets in close proximity to Divvy stations are intended paths for bicycle use. Thus, in its ruling, the court carved out a narrow exception to the duty analysis, limited to cyclists on streets leading to and from Divvy stations.

The appellate court reversed the dismissal of plaintiff’s complaint and remanded it to the trial court for further proceedings. (The complete opinion is available here: Alave v. City of Chicago, 2022 IL App (1st) 210812.)

The Takeaway

While the Tort Immunity Act insulates municipal defendants from liability in many circumstances, in this decision, the court looked outside the language of the statute and applied real-world realities to a situation to determine the duty owed to a plaintiff. Is this the beginning of a trend? Only time will tell.

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