LawPulse

Some say antiquated Illinois tort law creates a disincentive for municipalities to create safer, bike-friendly roadways.

Avid cyclists might be shocked to learn that they are not necessarily intended users of public ways, including popular riding paths and trails. Given the growing popularity of cycling, and the major improvements some municipalities have undertaken to protect and encourage bike ridership, this notion seems counterintuitive to say the least. After all, the Illinois Rules of the Road include bicycle-specific provisions that govern how bicyclists use the roads and how cars and other motor vehicles interact with them. See https://www.cyberdriveillinois.com/publications/pdf_publications/dsd_a112.pdf at p.40. But an 18-year-old Illinois Supreme Court ruling sets precisely that precedent.

The legacy of Boub

In Boub v. Township of Wayne, 183 Ill. 2d 520 (1998), the court held that a cyclist is only a permitted user of a roadway, not an intended user. It pointed to past precedents indicating that while intended users are also permitted users, permitted users are not necessarily intended users. Making an analogy to crosswalks, the court found that, absent signs or other markings specifically indicating that bicycle use was intended, cyclists are not intended users of a roadway.

Justice Heipel's dissent in Boub notes that the majority's holding is "both irrational and dangerous as a principle of public policy." Id. at 539. Quite simply, the majority holding in Boub "discourage[s] municipalities from taking any measures to make roads safer and more hospitable for bicyclists." Id.

The dissent in Boub was described as prescient by Chicago lawyer Michael Keating in his article "The Wheels of Change Keep Turning: Why The Popularity of Bicycling In Illinois Has Rendered Illinois Law Irrelevant," Trial Journal, Vol. 18, No. 2, Summer 2016 at p.22. (Trial Journal is a publication of the Illinois Trial Lawyers Association.) Illinois law hasn't kept pace with the rapid growth in bicycle ridership since 1998, Keating says in his article.

Time for legislation?

Many cities have taken steps to be more bicycle-friendly. Chicago has plans to build 645 miles of bike lanes by 2020. See http://www.chicagobikes.org/pdf/2012%20Projects/ChicagoStreetsforCycling2020.pdf.

By 2012, Chicago had seen a surge in the number of cyclists; currently at least 1.3 percent of city residents commute via bicycle. Eleven other cities in Illinois have also been recognized as being bike-friendly including Urbana, Naperville, Evanston, Elmhurst, and Warrenville. See http://www.bikeleague.org/bfa/awards#community. Does the law apply differently to these cities?

In cities that make accommodations, cyclists may be intended (as well as permitted) users of the roadway. For example, some protected bicycle lanes regulate bike traffic with bike-specific traffic lights. Given that the city has specifically stated its intention to improve access for cyclists, it's likely that Chicago cyclists are intended users of the roadway. Amelia Buragas, an attorney at Kelly Law Offices, P.C., and an alderman representing Bloomington's 4th Ward, says that the current state of the law is a problem for communities that want to encourage residents to use bicycles for transportation.

By creating special, marked areas for bikes, communities show that bikes are an intended user of the roadway, increasing liability for the municipality, Buragas says. Under the current state of the law, if there are no affirmative markings or signs regarding bikes, then the municipality is immune from liability if a rider is injured by a defect in the roadway.

Justice Heipel's dissent in Boub notes that if a similar defect injured someone driving a car or a motorcycle, the result would be different than the result for a cyclist. Heipel felt that there was "no rational basis for this distinction." Boub, at 539. Buragas says that this approach makes even less sense as ridership has increased; it punishes municipalities that focus on bicycle safety, putting good public policy at odds with the law.

Fortunately, there is a relatively simple solution; passing legislation that levels the playing field, declaring that bicycles are both permitted and intended users of the roadway. Advocacy groups like Ride Illinois have tried to introduce legislation in the past, but with no success. Buragas does not endorse any specific legislative fix, but she notes that there are a number of actions the legislature could take to clarify the duty owed to bicycles to avoid discouraging communities from accommodating cyclists.