Legal Brief. Liability for Injuries on Public Property

Legal Brief Liability for Injuries on Public Property By Roger Huebner, Deputy Executive Director & General Counsel; Brian Day, Staff Attorney; & Jerry Zarley, Paralegal With the summer season in full swing, people are involved in a variety of outdoor activities. As a result, injuries on public property are bound to occur, and lawsuits will be filed. Under the Local Governmental and Governmental Employees Tort Immunity Act 1 (the Tort Immunity Act or the Act ) local public entities will only be held liable, however, if the injured party was an intended and permitted user of the property upon which he or she was injured. When it comes to liability for injuries on public property, 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. 2 Under this statute, there are a variety of conditions that must be met for a municipality to be liable for injuries: Did the municipality maintain its property in a reasonably safe condition? Did the municipality have actual or constructive notice of the property s condition? Did the municipality have notice in reasonably adequate time to take corrective measures before the injury occurred? But all of these conditions concerning liability apply only if the injured person was an intended and permitted user of the property. The duty to exercise ordinary care to maintain property in a reasonably safe condition is only extended to those that are intended and permitted users of the property, and the user must be both intended and permitted to use the property in the manner in which they were using it. 3 The purpose of this column is to explain the meaning of intended and permitted users. 1. Liability Extends Only to Intended AND Permitted Users First, for liability to be an issue for a municipality, the injured party must be both an intended AND a permitted user of the property. 4 To be an intended and permitted user of the property, the injured party must have been using the public property for its intended AND permitted purpose, and the intended use is determined by the municipality, not the user. 5 The emphasis on the word and is important because both elements must be satisfied. A use that is intended would seem to imply that the use is also permitted. But the reverse is not always true -- a permitted use does not automatically mean that the use was also intended. As an

example, although bicycles may be permitted to be used in various places -- such as sidewalks -- they are not always intended to be used on the public property where the bicyclist was injured. But, where bicycles are both permitted and intended uses -- such as a designated bike trial -- the local public entity has a duty to maintain that property in a reasonably safe condition for those users. If it is found that the local public entity maintained the property in a reasonably safe condition for those that are intended and permitted to use the property, and the party was injured anyway, then no liability on the part of the local public entity exists. 2. Special Immunity for Recreational Property Special immunity applies to recreational property. Section 3-106 of the Tort Immunity Act provides: Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used for recreational purposes, including but not limited to parks, playgrounds, open areas, buildings or other enclosed recreational facilities, unless such local entity or public employee is guilty of willful and wanton conduct proximately causing such injury. 6 A municipality is immune from liability for injuries occurring on municipally owned recreational property unless the municipality or its employee is found guilty of willful and wanton conduct. For a more in-depth discussion regarding local governmental immunity and liability on recreational property, please refer to the legal column in the June 1999 issue of the Illinois Municipal Review. 7 3. Liability for Injuries on Public Property other than Recreational Property Public streets, sidewalks, and alleys are common places where injuries occur. Complaints often come from pedestrians and bicyclists. A. Pedestrians as Intended and Permitted Users Like drivers on the roadways, pedestrians must follow the rules. They cannot disobey the rules, get hurt, and then seek damages for those injuries. For example, a municipality will not be held liable for the injuries of pedestrians who use a street in a way that it was not intended, even if the use was foreseeable. This applies to people who cross roadways outside of a cross walk, 8 and use other parts of streets, such as medians, 9 parkways, 10 and curbs. 11 But, injuries incurred during the entrance and exit of legally parked vehicles is not always immune from liability. In the case of Curatola v. Village of Niles, 12 for example, the appellate court determined that the village was liable for the injuries that the plaintiff sustained on the public street because under Section 3-102(a) of the Tort Immunity Act the plaintiff was an intended and permitted user of the street immediately around his legally parked vehicle. Persons exiting from a legally parked car are intended and permitted users of the space around their car, for purposes of the Tort Immunity Act. 13 But, this is not always the case.

In the case of Doria v. Village of Downers Grove, 14 for example, the plaintiff parked his vehicle next to a store in a village-owned gravel area, which didn't have any No Parking signs, but it did have one cement parking block. The gravel area was adjacent to and lower than the roadway. The plaintiff filed a negligence action against the village after he was injured when he tripped and fell where the two areas met. The plaintiff claimed that the village was liable because it failed to warn him of, protect him from, or correct the alleged defect. The trial and appellate courts determined, however, that the village was immune from liability for plaintiff's injuries under Section 3-102(a) of the Tort Immunity Act because, looking at the property as a whole, he was not an intended user of the gravel area where he was injured, even though he was a permitted user. Thus, to be considered an intended and permitted user, the vehicle must be legally parked in an area designated for parking by the public entity. Pedestrians are not typically intended users of alleys either. 15 But, this too is not always the case. Recently in Gutstein v. City of Evanston, 16 for example, the appellate court determined that the city was not entitled to immunity under the Tort Immunity Act for the plaintiff's injuries in the alley behind her house because she was an intended user of the alley. Even though pedestrians are usually not intended users of alleys, the city created a safe harbor for the plaintiff under the immunity provision because it expressly established a policy requiring residents to place their yard-waste containers in the alley. But, illegally parking one s car in an alley is not an intended and permitted use of the alley. 17 Although alleys may commonly be used for purposes other than vehicular traffic, those uses are not intended by the municipality. Even frequent use by pedestrians does not convert an alley into a sidewalk, giving rise to the duty by a municipality under the Tort Immunity Act to maintain an alley in a reasonably safe condition for use by pedestrians. 18 B. Bicyclists as Intended and Permitted Users Even though bicyclists must follow the Rules of the Road in the Illinois Vehicle Code, 19 roadways are typically intended to be used by vehicular traffic. Thus, unless the facts can show that a municipality intended bicyclists to use the municipal property, municipalities will be immune from liability for injuries incurred by bicyclists. The Illinois Supreme Court case Boub v. Township of Wayne 20 is the leading case regarding bicyclists and tort immunity for local governments. In Boub, the plaintiff filed a complaint against the township alleging that its negligent failure to maintain a bridge caused him severe injuries when he fell from his bicycle. The Illinois Supreme Court found that in determining whether a use of property was intended and permitted, the nature of the property and the intent of the local government entity that controls it must be examined. The Court found there were no pavement markings, signs, or other physical manifestations indicating that bicyclists were the intended users. Further, the Court stated that the fact that the township placed bicycle signs near the bridge after the accident was not indicative of the township's prior intent. The Court dismissed the plaintiff's arguments regarding the Illinois Vehicle Code's recognition of bicyclists using streets, roads, and highways, and cases involving use of county roads by bicyclists. The Court reiterated that "under Section 3-102(a) of the Tort Immunity Act it is the intent of the local public entity that controls." Thus, the intent of another governmental body, such as the state or

county, is irrelevant. Consequently, the Court held that bicyclists were not the intended users but merely permitted users of the township's bridge and nearby road. Following the Court s line of reasoning in Boub, the First District Appellate Court ruled in Latimer v. Chicago Park District 21 that the city was not liable for the plaintiff's injuries under Section 3-102 of the Tort Immunity Act because the plaintiff, as a bicyclist, was not an intended user of the street where she was injured. There was no indication that the city intended bicyclists to use that portion of the street where she was injured. Sidewalks can be a little trickier, as two cases out of Peoria indicate. In Brooks v. City of Peoria, 22 the appellate court held that the plaintiff, an infant bicyclist, was an intended user of the city's sidewalks because certain provisions of the city's codes authorized bicyclists to use sidewalks. But, the same did not apply to an adult a few months later. In Diefendorf v. City of Peoria, 23 the appellate court determined that, under the Tort Immunity Act, the City of Peoria did not owe the plaintiff bicyclist a duty to reasonably maintain the sidewalk because the city did not intend bicyclists to use its sidewalks. The Third District Appellate Court could have been clearer. 4. Conclusion Determining whether one is an intended AND permitted user of municipally owned property is very fact specific, and it requires a court to examine the property as a whole to determine whether the municipality is entitled to immunity or potentially liable for the injuries of that user. As the numerous injury cases brought against local governmental entities indicate, there are varying other circumstances that could give rise to a potential lawsuit. 24 Also, with immunity applying under one set of facts, and liability applying with a very minor change in the fact situation, it is clear that it can be very difficult trying to ensure that municipalities are not unintentionally putting themselves at risk of liability with whom they inadvertently turn into intended and permitted users of their property. Thus, we strongly advise that municipal officials seek the advice of their attorneys on this matter. This monthly column examines issues of general concern to municipal officers. It is not meant to provide legal advice and is not a substitute for consulting with your municipal attorney. As always, when confronted with a legal question, contact your municipal attorney as certain unique circumstances may alter any conclusions reached herein. 1 745 ILCS 10/ 2 745 ILCS 10/3-102(a) (emphasis added). 3 See Doria v. Village of Downers Grove, 397 Ill. App. 3d 752 (2d Dist. 2009). 4 Bonert v. Village of Schiller Park, 322 Ill. App. 3d 557 (1st Dist. 2001); Sullivan v. City of Hillsboro, 303 Ill. App. 3d 650 (5th Dist. 1999), app l den., 184 Ill. 2d 574 (1999); Boub v. Township of Wayne, 291 Ill. App. 3d 713 (2d Dist. 1997), aff d, 183 Ill. 2d 520 (1997); Khalil v. City of Chicago, 283 Ill. App. 3d 161 (1st Dist. 1996). 5 Wojdyla v. City of Park Ridge, 148 Ill. 2d 417 (1992). 6 745 ILCS 10/3-106 7 Local Government Immunity/Recreational Property, Roger Huebner and Jerry Zarley, Illinois Municipal Review p. 17 (June 1999). 8 See Tieman v. City of Princeton, 251 Ill. App. 3d 766 (3d Dist. 1993); Wojdyla v. City of Park Ridge, 209 Ill. App. 3d 290 (1st Dist. 1991), aff'd 148 Ill. 2d 417 (1992); Risner v. City of Chicago, 150 Ill. App. 3d 827 (1st Dist. 1986), app'l den. 114 Ill. 2d 557 (1986); Pence v. Northeast Illinois Regional Commuter Railroad Corp., 398 Ill. App. 3d

13 (1st Dist. 2010); Williams v. City of Chicago, 371 Ill. App. 3d 105 (1st Dist. 2007); Scerba v. City of Chicago, 284 Ill. App. 3d 435 (1st Dist. 1996); Evans v. City of Chicago, 276 Ill. App. 3d 631 (1st Dist. 1995). 9 Krampert v. Village of Mt. Prospect, 323 Ill. App. 3d 41 (1st Dist. 2001); Roberson v. City of Chicago, 260 Ill. App. 3d 994 (1st Dist. 1994). 10 Mazin v. Chicago White Sox, 358 Ill. App. 3d 856 (1st Dist. 2005); Strawder v. City of Chicago, 294 Ill. App. 3d 399 (1st Dist. 1998). 11 Williams v. City of Chicago, 371 Ill. App. 3d 105 (1st Dist. 2007). 12 324 Ill. App. 3d 954 (1st Dist. 2001). 13 Scarse v. City of Chicago, 272 Ill. App. 3d 903 (1st Dist. 1995). 14 397 Ill. App. 3d 752 (2d Dist. 2009). 15 See Thomas v. Town of Cicero, 307 Ill. App. 3d 840 (1st Dist. 1999). 16 First District No. 1-08-3607 (June 4, 2010). 17 Montano v. City of Chicago, 308 Ill. App. 3d 618 (1st Dist. 1999). 18 Khalil v. City of Chicago, 283 Ill. App. 3d 161 (1st Dist. 1996). 19 625 ILCS 5/11-100 et seq. 20 183 Ill. 2d 520 (1998). 21 323 Ill. App. 3d 466 (1st Dist. 2001). 22 305 Ill. App. 3d 806 (3d Dist. 1999). 23 308 Ill. App. 3d 465 (3d Dist. 1999). 24 E.g. First Midwest Trust Co., N.A. v. Britton, 322 Ill. App. 3d 922 (2d Dist. 2001) (motorbiker not an intended user of property owned by the village); Redlin v. Village of Hanover Park, 278 Ill. App. 3d 183 (1st Dist. 1996) (unlicensed motorcyclists was an intended and permitted user of the roadway); Rector v. Mattingly, 273 Ill. App. 3d 344 (5th Dist. 1995) (intoxicated driver was an intended and permitted user of the county property); Wagner v. City of Chicago, 166 Ill. 2d 144 (1995) (speeding motorcyclists was an intended and permitted user of the roadway); Sisk v. Williamson County, 167 Ill. 2d 343 (Pedestrian injured when he fell from bridge on rural road onto creek bed was not an intended and permitted user of road); Evans v. City of Chicago, 276 Ill. App. 3d 631 (1st Dist. 1994) (Pedestrian, who fell into open manhole 15 inches outside of unmarked crosswalk while looking for bus, was intended and permitted user of street).