Safety Devolution: Bike law and Illinois roadways

By William Lazarus
(President of Folks on Spokes bike club for Chicago’s south suburbs)

The date: March 23, 1905. The place: Chicago. Fifteen-year-old Alfred Molway was riding his bike north on Wells street, approaching the intersection with Ontario. It was remarkable that the youth was riding a bike at all. Years before, Al lost his left leg. It was amputated three inches below his knee.  Al was a determined guy. He got an artificial leg, and became proficient in using it. He played baseball and other sports. He rode his bike.

Rain had poured down earlier that day. It was still drizzling out when Al was riding. Water was puddled along Wells street. Puddled is an understatement. As Al rode toward Ontario Street, he could not see a hole in the street that was filled with water. The hole itself was  ten to 15 inches deep, a foot or more wide and about two feet long. Al ran into it and was thrown from his bike, dislocating and permanently injuring his left hip. He would never walk the same again.

Molway sued the city of Chicago, and the jury found in his favor. It determined that the city had not kept the street in a reasonably safe condition. The city appealed to the Supreme Court of Illinois. It asserted that it should not be required to make the streets safe for bicycles. Streets were meant for wagons. Streets were meant for horses. Streets were even meant for that new fangled invention, the motor car. But bicycles? No way. Bicycles would be vulnerable to all kinds of road conditions that would not pose a danger to wagons and other four wheeled vehicles. It would be unreasonable to expect the city to make the streets safe for bicycles. The city asked the court to find that ordinary travel did not include riding a bike along a street.

On April 23, 909, the Illinois Supreme Court rejected that argument, finding that bicycles had been for years in common use on the streets of Chicago and that riding a bike on a street is “an ordinary mode of travel.” Molway v. City of Chicago, 239 Ill. 486, 494 (1909).  In some ways, the court suggested, bicycles were safer than horse-drawn wagons, being able to maneuver more readily. The court found that when highways are not restricted by their dedication or statute to some particular mode of use they are open to all suitable methods of travel.

“A street is made for the passage of persons and property, and the law cannot define what exclusive means of transportation and passage shall be used.…” [Citation omitted to 1859 decision.] To hold that the standard of safety required of public authorities as to streets and highways for all methods of travel should be the safety required for a horse-drawn carriage, or of any other particular vehicle, would not accord with wise public policy.” Id. at 490-491.

As the old cigarette advertisement goes, Baby, We’ve Come a Long Way.

Eighty nine years after it decided Molway, the state’s supreme court revisited the matter of keeping streets safe for bicycles. In a narrowly split decision, marked by a sharply critical dissent, the court decided in Boub v. Township of Wayne, 183 Ill.2d 520 (1998) that municipalities are only responsible for keeping streets and roads reasonably safe for their “intended and permitted” users.  In the advent of the automobile as the dominant form of transportation and in the wake of a municipal tort immunity statute,[1] bicyclists no longer had the right to expect reasonably safe roads, at least not unless the roads were marked specifically for bike use.

Jon Boub was riding his bike on the morning of September 8, 1992 on St. Charles Road in DuPage County when he approached a one-lane bridge that was under renovation. Asphalt patching between the bridge’s wood planks had been removed in preparation for a new deck.  Gaps existed between the planks. No sign warned bicyclists of the danger. Jon’s front tire dropped between two planks. His back wheel sprang into the air, and Jon was thrown off his bike and onto the bridge’s steel railing. He was severely injured.

Boub sued, and lost on a summary judgment motion before the trial court. That decision was affirmed by the supreme court, which focused upon the Tort Immunity Act’s language providing that reasonable care must be exercised by local governments for “intended and permitted” users. Jon Boub, the court found, was permitted to use the bridge. But he wasn’t intended to do so. “In the present case, there is nothing in the roadway or bridge that would suggest that it was intended for use by bicycles,” the court found.

Boub’s attorneys asserted that section 11-1502 of the state’s Vehicle Code provides that “[e]very person riding a bicycle upon a highway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this Code…” 625 ILCS 5/11-1502 (West 1996). The high court, however, stated that the provision

“seems designed to ensure that  bicyclists, for their own safety and the safety of others, obey traffic laws while they are on public streets and highways. In fact, the legislature gave that section the title, ‘Traffic laws apply to persons riding bicycles.’ The provision cited by the plaintiff is entirely consistent with the conclusion that bicyclists are permitted, but not intended, users of the roads, in the absence of specific markings, signage, or further manifestation of the local entity’s intent that would speak otherwise.”

Boub, 183 Ill.2d at 529-530. Thus the high court drummed the duties and ignored the rights of bicyclists.

The League of Illinois Bicyclists, the Chicago Bicycle Federation and the Indiana Trial Lawyers Association weighed in as “amici” or friends-of-the-court, and observed that St. Charles Road itself had been designated “a through street generally suitable for bicycling” by the Du Page County board in 1983. No matter. “Such a designation, however, is consistent with our conclusion that bicyclists are only permitted users of the road in question” the court found, without addressing how the designation of “suitable” did not reflect intent.

The supreme court then noted that “the present case does not involve a street or road with specially marked lanes for bicycle use or the opposite situation of signs prohibiting the presence of bicyclists.” Id. at 532. In other words, the case might be different if Boub had been riding in a designated bike lane.

It stated that a range of conditions, including potholes and speed bumps” not hazardous to automobiles might be hazardous to bicycles, and that it should be up to the legislature to decide whether to impose the expense on municipalities of addressing these conditions.

Justice Heiple authored the dissent, calling the court’s decision “absurd and dangerous” and asserting, “The majority’s conclusion that bicyclists are not intended users of roads defies common sense, contravenes statutory authority, and frustrates public policy.”  Id. at 543-544.

“Even schoolchildren,” Heiple added, “are taught to ride their bikes on the right side of the road, to obey all traffic laws, and to use appropriate signals to communicate with motorists. The majority’s assertion that bicyclists are not  intended users of roadways therefore contradicts the experience, understanding and training of reasonable people.” Id. Just because far more cars use the road than bicycles, he added, does not make bicyclists unintended users.

Heiple called the decision “both irrational and dangerous as a principle of public policy. The accident which befell plaintiff in this case could just as easily have befallen a motorcyclist, but under the majority’s standard, the latter could recover while the former cannot. There is no rational basis for this distinction.” He added that even if the road condition were hazardous to an automobile, a bicyclist could not recover under the majority’s holding in Boub.

Four members of the court backed the majority opinion. Three members, including Heiple, joined the dissent. None of the seven justices on the court then remain on it now.

Boub has remained intact, though one case the following year nibbled at its edges, addressing in one context the inequity stressed by the dissent.

In Brooks v. City of Peoria, 305 Ill.App.3d 806 (3rd Dist. 1999), the appellate court overturned a trial court’s summary judgment ruling. It found that the father of a seven-year-old boy could sue the city for failing to maintain a sidewalk. Upon crossing the allegedly deteriorated sidewalk, Blake Brooks lost control of his bike and fell into an adjacent concrete drainage ditch.

The city persuaded the trial court judge that Blake was not an intended user of the sidewalk. It pointed to the city’s classification of the adjacent street as a Class III bikeway, requiring cyclists to share the street with cars.

On appeal, the court found Boub to be different. It noted that sidewalks are intended for pedestrians, but added, “Common sense would indicate, however, that the nature of a sidewalk includes use by children in strollers, motorized wheelchairs, tricycles, training bicycles, junior bikes, roller blades and roller skates.” Id. at 809. It also found that “historical and customary use” are relevant, though not, under Boub, alone sufficient to establish a particular use of public property as intended.

The city’s designation of the adjacent street, it found, did not establish lack of intended use. “We do not believe that the city, in its designation of bicycle routes, intended for infant bicyclists to share busy city streets with motor vehicles,” the court found. Id. at 810.

The court also noted a lack of public policy concerns as to expense. “An infant bicyclist is proportionately in the same danger as a pedestrian when encountering a defect in the sidewalk. The concerns expressed in Boub are not present here because the city would not have to expend additional amounts of resources to upgrade sidewalk conditions for the use of bicyclists.”

An extension of the reasoning of Boub would suggest that where a local government would be liable to a motorcycle, it would also be liable to bicyclists.

Boub, as Justice Heiple predicted, has discouraged many municipalities from creating bike lanes, according to an analysis by Ed Barsotti, executive director of the League of Illinois Bicyclists. In a year 2007 article, however, Barsotti suggested that the concerns of those local governments are exaggerated.

Under the tort immunity act pertaining to public streets and highways, a local government would have to have had actual or constructive knowledge of the hazard that caused injury and not done anything about it in a reasonable time. Under the immunity statute relating to public recreational property the governmental entity would have to have been willfully and wantonly negligent in disregarding dangers. Dinelli v. County of Lake, 294 Ill. App.3d 876 (2nd Dist. 1998).

Barsotti noted that Illinois’ two largest insurers of local government agencies, IPARKS and St. Paul-Travelers, had reported that there would be no increase in premiums caused by addition of a 10-mile off-road bike path, 10 miles of on-road bike lanes and 10 miles of signed road bike routes, assuming they were consulted to insure proper road design standards ere met. Meanwhile, he reported, in the 10 years following Boub, at least 28 Illinois communities added marked bike lanes or signed bike routes. The City of Chicago now plans to expand its bikeways network, the vast majority of which went in after Boub, from 315 miles in 2005 to 500 miles by 2015.

The experience of municipalities in rarely being exposed to liability as to as to marked bike paths and highway lane set-asides suggests that to the extent that it was influenced by worry about the economic liability of local governments, the Illinois Supreme Court overreacted in Boub. Speculative concern about public expense does not justify a pass for local governments to ignore safety of bicyclists on public streets and highways. Streets and roads should be made reasonably safe for all citizens who ordinarily and predictably use them.


[1] Illinois’ governmental Tort Immunity Act, 745 ILCS 10/3-102(a), codifies the common law duty of a local government “to exercise ordinary care to maintain its property in a reasonably safe condition” and provides, in part, that this duty extends to people who “the entity intended and permitted to use the property”. It requires the users to exercise ordinary care and provides the governmental entity is not liable unless it has actual or constructivce notice of a danger.