Boub v. Township of Wayne

702 N.E.2d 535, 183 Ill. 2d 520, 234 Ill. Dec. 195, 1998 Ill. LEXIS 1568
Illinois Supreme Court·Decided October 22, 1998·No. 84246·Published·Cited by 72 cases

Opinions

JUSTICE MILLER

delivered the opinion of the court:

The plaintiff, Jon P Boub, brought this action in the circuit court of Du Page County, seeking recovery against the Township of Wayne and its highway commissioner, John Ryvold, for injuries sustained by the plaintiff in a bicycle accident on a Wayne Township bridge. The circuit court granted the defendants’ motion for summary judgment, and the appellate court affirmed. 291 Ill. App. 3d 713. We allowed the plaintiffs petition for leave to appeal (166 Ill. 2d R. 315(a)), and we now affirm the judgment of the appellate court.

The plaintiff commenced the present action on September 23, 1993, by filing a complaint in the circuit court of Du Page County. After the dismissal of the plaintiffs initial and amended complaints, the plaintiff eventually filed a third amended complaint, which superseded a pending second amended complaint. According to the allegations in the plaintiffs third amended complaint, Boub was riding his bicycle on the morning of September 8, 1992, on St. Charles Road in Wayne Township, Du Page County. The accident occurred as Boub was traveling across a one-lane bridge. The surface of the bridge consisted of wood planking; some time before the accident, asphalt patching between the planks had been removed as part of a bridge renovation project, in preparation for the installation of a different bridge deck. According to the pleadings, the plaintiff was thrown from the bicycle when his front tire became stuck between two of the planks on the bridge.

The plaintiffs third amended complaint sought recovery from the defendants on several different theories of liability. Counts I and iy sounding in negligence and willful and wanton misconduct, alleged that the defendants violated a duty owed to the plaintiff under section 3 — 102(a) of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/3— 102(a) (West 1996)) (Tort Immunity Act). Counts II and V alleged negligence and willful and wanton misconduct for failure to comply with certain statutory provisions, including section 3 — 103 of the Tort Immunity Act (745 ILCS 10/3 — 103 (West 1996)), in making the improvements to the bridge. Finally, counts III and VI, alleging negligence and willful and wanton misconduct, sought recovery under provisions of the Illinois Vehicle Code for the defendants’ asserted failure to properly post warning signs at the bridge. The defendants moved for summary judgment on all six counts. Following a hearing, the trial judge granted the defendants’ motion and entered summary judgment in their favor.

The plaintiff appealed, and the appellate court affirmed. 291 Ill. App. 3d 713. On appeal, the plaintiff challenged only the rulings with respect to the negligence counts of his complaint, counts I, II, and III; he did not challenge the disposition of the companion counts alleging willful and wanton misconduct. Regarding count I, the appellate court concluded that the defendants were immune from liability under section 3 — 102(a) of the Tort Immunity Act. Given that result, the appellate court concluded that count II must fail as well, for liability under section 3 — 103, on which count II was based, will not be found in the absence of liability under section 3 — 102(a). See Curtis v. County of Cook, 98 Ill. 2d 158, 165 (1983). Finally, the appellate court rejected count III, and the plaintiffs argument that the defendants were liable for their failure to post or maintain proper warning signs at the site. The defendants had appealed separately from an order of the circuit court denying their motion to dismiss the action as barred by the statute of limitations; the appellate court did not address that question, having resolved the other issues in the case in favor of the defendants. We allowed the plaintiff’s petition for leave to appeal. 166 Ill. 2d R. 315(a). We later granted leave to the League of Illinois Bicyclists and the Chicago-land Bicycle Federation to submit a joint brief as amici curiae in support of the plaintiff. 155 Ill. 2d R. 345.

Orders granting summary judgment are subject to de novo review (Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390 (1993)), and that standard therefore governs our resolution of the present appeal. The plaintiff first argues that the courts below erred in ruling that count I of the third amended complaint was barred by the immunity provisions of the Tort Immunity Act. Section 3 — 102(a) of the Tort Immunity Act provides:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” 745 ILCS 10/3 — 102(a) (West 1996).

In Vaughn v. City of West Frankfort, 166 Ill. 2d 155, 160 (1995), this court explained, “Section 3 — 102(a) of the Act only imposes a duty of ordinary care on municipalities to maintain property for uses that are both permitted and intended” (emphasis in original). Accordingly, the present plaintiff must qualify as both a permitted and an intended user of the property involved in this case if he is to maintain the action alleged against the defendants in count I of the third amended complaint. In truth, an intended user of property is, by definition, also a permitted user; a permitted user of property, however, is not necessarily an intended user. The defendants contend that the plaintiff, as a bicyclist, was not an intended user of the road and bridge, and that he was, at most, only a permitted user. The question before us, then, concerns whether the plaintiff may also be characterized as an intended user. The plaintiff asserts that the rights of bicycle riders and vehicle drivers are generally coextensive. He observes that bicyclists have traditionally used roads and highways without restriction, and he cites a state statute that grants bicyclists the rights and duties of drivers of vehicles. The plaintiff notes further that bicyclists were not excluded from riding on the road where the present accident occurred.

To resolve the plaintiff’s status under section 3 — 102(a), it is appropriate to look at the property involved in determining whether the plaintiff may be considered an intended and permitted user of the road and bridge where the accident occurred. “Whether a particular use of property was permitted and intended is determined by looking to the nature of the property itself.” Vaughn, 166 Ill. 2d at 162-63. Moreover, as the statute makes clear, it is the intent of the local public entity that is controlling, for the duty expressed by section 3 — 102(a) is limited to those “whom the [local public] entity intended and permitted to use the property” (745 ILCS 10/3 — 102(a) (West 1996)).

The scope of this inquiry is demonstrated by our decision in Wojdyla v.

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Boub v. Township of Wayne, 702 N.E.2d 535, 183 Ill. 2d 520, 234 Ill. Dec. 195, 1998 Ill. LEXIS 1568 (Ill. 1998).

702 N.E.2d 535 (Boub v. Township of Wayne) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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