In September 2010, Thomas Berz was riding his bike in an Evanston alley when he hit a pothole. Berz fell off his bike and suffered a traumatic brain injury. He sued the City of Evanston in July 2011 claiming that it was negligent for choosing not to maintain the surface of the alley. A month later, Evanston filed a motion to dismiss on the basis that the Tort Immunity Act (745 ILCS 10/1-101 et seq.) protects the city from plaintiffs who are injured from using property differently than its intended use.
The circuit court judge dismissed the case in November 2011, but granted Berz leave to amend his complaint. Berz amended the complaint providing new photographs of the alley’s condition and included greater detail on how this incident took place. Berz argued that under the Evanston Municipal Code and city-published bicycle maps, he was an intended user of the alley.
However, the trial court disagreed with Berz and dismissed his amended complaint in August 2012. But Berz filed a third amended complaint, arguing that his bike was a vehicle and therefore an intended user. Again, the city moved to dismiss arguing that a bicycle rider was not an intended user of an alley and the court agreed dismissing Berz’s complaint in November 2012. Berz appealed to the Illinois Appellate Court, which reviewed whether a bicyclist was considered an intended user of the alley based on state law, the city’s ordinance and signage in the alley.
The appellate court relied on an Illinois Supreme Court case, Vaughn v. City of West Frankfort that laid out the criteria for a city to be liable under the state’s Tort Immunity Act.
In that case, the Illinois Supreme Court held that municipalities have a duty only to maintain property for uses that are both permitted and intended.
In October 2012, Evanston had amended its ordinance to explicitly label bicyclists as unattended users of alleyways.The ordinance was not well-disguised as an attempt to clear itself from liability even retroactively, setting the effective date back to June 2010, before this incident.
However, the appellate court said that the city’s arbitrary rule change did not eliminate Berz’s cause of action. The court went on to state that the ordinance did not help the city’s arguments. But, by virtue of the signage that was found in the alleyway, the court was impressed that bicyclists were not intended users.
The court also stated that the plaintiff’s pleadings stressed that bicyclists were permitted to use the alley and nothing more. The three panel justices were split 2 to1 in favor of affirming the dismissal of the case. A dissenting opinion was written in this case.
In his dissenting opinion, Justice Gordon stated that the majority’s opinion didn’t consider the reality that many people use alleys to access their personal garages. The appellate affirmed the dismissal of the case for the reasons stated above.
Thomas Berz v. City of Evanston, No. 1123763; 2013 IL App. (1st) 123763.
Kreisman Law Offices has been handling bicycle accidents, car crashes and truck accidents for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Maywood, Morton Grove, Antioch, Chicago (Roscoe Village, Lincoln Square), Tinley Park, Palos Hills and Naperville, Ill.
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