Monday, January 15, 2018 Julie Tappendorf
The Illinois Supreme Court recently
ruled that pubic bodies that operate urban and suburban pedestrian/bicycle
paths are not granted absolute immunity from liability under Section 3-107 of the
Illinois Tort Immunity Act, though they are protected by the limited immunity
afforded under Section 3-106 of that Act. You may recall that we had reported previously about this case here.
In Cohen v. Chicago Park District, Cohen was riding his bike on the
Lakefront Trail in Chicago. As he
attempted to pass a pedestrian, his front tire was caught in a crack in the
concrete. The crack was three to four
inches wide, two to three inches deep, and three to four feet long. Cohen fell off his bike and injured his
shoulder, then rode his bicycle home. He sued the Chicago Park District, and the Park District filed a motion for summary judgment arguing it was immune from liability under Section 3-107(a) and 3-106 of the Tort Immunity Act.
The trial court ruled in favor of the Park District, finding that the District was immune from liability under both Sections 3-107(a) and 3-106 of the
Illinois Tort Immunity Act. The appellate court reversed, finding that the absolute immunity provided by Section
3-107(a) did not apply to the Lakefront Trail because it “was intended to apply to roads providing access to primitive,
undeveloped recreational areas.” The appellate court also held that summary judgment on the immunity under section 3-106 was inappropriate because the court could not find that
the Park District's conduct was not willful and wanton as a matter of law.
The Park District then appealed the case to the Illinois Supreme Court.
First, the Illinois Supreme Court upheld the appellate
court’s ruling that the Park District did not have immunity under Section 3-107(a) but on different grounds. The appellate court’s analysis focused on the
word “primitive” in regard to the types of roads that are covered under Section
3-107(a). The Illinois Supreme Court, instead,
determined that the Lakefront Trail is not a “road” within the meaning of
Section 3-107(a), and that a “road” is a public way that permits travel by
motorized vehicles such as motorcycles, cars and trucks.
Second, with respect to the Park District's claim of immunity under Section 3-106, the Illinois Supreme Court found that the park district’s actions
were not willful and wanton, so the Park District was immune from liability for Cohen's injuries. The Court
based its determination on the facts that, prior to the accident, upon being
notified of the crack in the pavement, a park district employee inspected the
crack and placed it on a repair list for a rapid response program, and the
bidding process and repair of the crack were completed within 30 days. Cohen had argued that the Park District could
have done more, including barricading the path or using in-house employees to
perform temporary repairs. While the
Court agreed that might be true, it held that even if the Park District’s conduct may
have been negligent, it did not rise to the level of willful and wanton. So, the immunity under 3-106 would apply.
This case,
when read along with another case recently decided by the Illinois Supreme
Court, Korbett v. County of Lake, effectively eliminates the absolute
immunity provided to public bodies for urban and suburban bicycle/pedestrian
paths. In the Korbett case, the Court ruled
that those paths are not “trails” as defined in Section 3-107(b) and in this
case, those paths are not “roads” as defined in Section 3-107(a).
As a result of these recent cases, park districts and other government agencies that manage
shared-use bicycle/pedestrian paths are left to rely on the immunity provided
by Section 3-106. Agencies that operate
these type of paths need to be aware that Section 3-106 immunity is not absolute and contains an exception
for willful and wanton conduct.
Post Authored by Jim Rock, Ancel Glink
