2013 IL App (1st) 123763
Ill. App. Ct.2013Background
- Berz was injured when cycling in an Evanston alley behind 1549–1555 Sherman Ave after hitting a pothole (40 inches by 18 inches, 4–5 inches deep).
- Plaintiff sued City of Evanston for negligence; the city moved to dismiss under Tort Immunity Act section 3-102(a).
- Alley had signs and a stop sign; no pavement markings or signs indicating bicyclists were intended users at the time of the incident.
- Evanston amended ordinances in 2012 stating bicyclists in alleys are not intended users, with retroactive effect to 2010; the amendment occurred after the incident.
- The circuit court dismissed the third amended complaint; Berz appeals, arguing ordinances and a bicycle map show intended use by bicyclists.
- Court ultimately affirmed dismissal, holding Berz was not an intended user of the alley under the Tort Immunity Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the City immune under 745 ILCS 10/3-102(a) for an injury to a bicyclist in the alley? | Berz—bicyclists were intended users; ordinances and map show intent. | Evanston—bicyclists are not intended users; no markings or signs targeted bicyclists. | Yes, City immune; Berz not an intended user. |
| Did Evanston ordinances/maps establish that bicyclists were intended users of the alley? | Documents show intent to allow bicyclists. | No express indications of intended use; permitted use only. | No express intent to use alleys; bicyclists not intended users. |
| Does retroactive ordinance altering alley use affect reliance on prior intent in negligence analysis? | Retroactive amendment cannot serve to create intent retroactively. | Retroactive effect clarified city policy. | Court did not rely on retroactive amendment to create intent; analysis focused on pre-amendment conditions. |
Key Cases Cited
- Boub v. Township of Wayne, 183 Ill. 2d 520 (1998) (intended vs. permitted users; signs and markings affect intent)
- Vaughn v. City of West Frankfort, 166 Ill. 2d 155 (1995) (intent of locality governs duty under 3-102(a))
- Latimer v. Chicago Park District, 323 Ill. App. 3d 466 (2001) (signs/markings show permissible use; not necessarily intended use)
- Gutstein v. City of Evanston, 402 Ill. App. 3d 610 (2010) (pedestrian in alley when city policy requires access may be intended user; not always needed physical manifestations)